Rikha Begum v Tower Hamlets LBC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Keene,Lord Justice Pill |
| Judgment Date | 23 March 2005 |
| Neutral Citation | [2005] EWCA Civ 340 |
| Docket Number | Case No: B2/2004/1734 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2005 |
[2005] EWCA Civ 340
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
His Honour Judge Hornby
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Keene and
Lord Justice Neuberger
Case No: B2/2004/1734
Claim No 4B052605
Mr Kelvin Rutledge and Ms Sian Davies (instructed by Chief Executive's Directorate, Legal Services, Tower Hamlets Borough Council) for the Appellant
Mr Jan Luba QC and Mr Sean Pettit (instructed by Edward Duthie, London) for the Respondent
Introduction
This is an appeal by the London Borough of Tower Hamlets ("the Council") against an order of His Honour Judge Hornby, allowing an appeal by Mrs Rikha Begum ("the Applicant") against the Council's decision that they need not entertain her application for housing assistance. That application was made under Part VII—which contains the homelessness provisions—of the Housing Act 1996 ("the 1996 Act"). Mr Kelvin Rutledge (who appears for the Council) and Mr Jan Luba QC (who appears for the Applicant with Mr Sean Pettit) agree that the principal issue raised on this appeal is one of legal difficulty, as well as being of considerable practical importance to local housing authorities and to those seeking assistance from them.
That issue, which has been very well argued on both sides, may be summarised in these terms. How should a local housing authority respond to an application, under Part VII of the 1996 Act, from a person from whom they had previously received such an application which had given rise to a duty in the Council under Part VII, which duty had been discharged as a result of the person having unreasonably refused an offer of accommodation? There is also an issue on costs.
I will first set out the facts of this case, and will then identify the relevant statutory provisions. I will then consider the principal point at issue, which arises on the Council's appeal, in light of the statutory provisions, the authorities, and practical considerations. Finally, I will deal with the Applicant's cross-appeal on costs.
The Facts
On 29 September 2000, the Applicant and her husband, who had a two-year old child, applied to the Council under Part VII of the 1996 Act on the basis that they had become homeless, as they could no longer occupy the applicant's parents' home, 41 Mark House, London E2. This application (which I shall call "the first application") was investigated by the Council, who concluded that the Applicant and her husband were involuntarily homeless and had a priority need. Accordingly, the Council placed them in temporary housing at 160 Tredegar Road, London E2. Shortly after the allocation of that accommodation, the Applicant and her husband had another child, who was born on 23 June 2001. Thereafter in March 2002, the Council offered the Applicant and her husband a secure tenancy of 37 Johnson House, London E2, which they refused in April 2002. The Council concluded that they had thereby discharged their duty under Part VII of the 1996 Act to the Applicant and her husband, who would therefore have to vacate the temporary accommodation at 160 Tredegar Road.
The suitability of Johnson House, and the Council's view that their duty under Part VII of the 1996 Act had ceased, were challenged by the Applicant and her husband, first by way of review by one of the Council's assessment managers, and then by way of appeal to the County Court. The date of the review is not apparent from the papers, but it seems to have been in May 2002, and it resulted in the Council confirming their conclusion. The appeal to the County Court against the review decision was rejected on 1 November 2002. The Applicant and her husband then returned to Mark House some time in November 2002.
On 9 February 2004, the Applicant made a further application ("the second application") under Part VII of the 1996 Act to the Council, on the basis that it was unreasonable for her to continue to reside at Mark House with her two children. Three factors were said to have changed, and to have rendered Mark House less appropriate housing for the Applicant, since the date of the first application in September 2000. First, there was the birth of the second child, although this had occurred before she had rejected the offer of Johnson House made pursuant to the first application. Secondly, in September 2003, the Applicant's father, who had been the tenant of Mark House, purchased it (under his statutory right to buy) jointly with one of his sons, who therefore had the right to live there, which he exercised, albeit intermittently. Thirdly, another brother of the Applicant had been released from prison in August 2003, and had moved into Mark House, where he not merely lived, but also indulged in his heroin addiction. According to the Applicant's evidence, there were (and, I understand, still are) ten people spread over three generations living in Mark House, a three bedroom flat.
By a letter of 20 February 2004, a Homeless Officer of the Council rejected the second application. She summarised the history of the first application, and then referred to the Applicant's contention that Mark House was "considerably overcrowded". However, the Officer said that, because she was "satisfied that there has been no material change in [the Applicant's] circumstances", the "Council has no obligation to secure any accommodation for [the Applicant and her] family."
In accordance with what she was told in that letter were her rights under the 1996 Act, the Applicant requested the Council to review that decision. Her case was set out in a full letter from her solicitors dated 28 April 2004. The review was carried out by an Acting Assistant Assessment Manager of the Council, who communicated her decision to the applicant on 4 May 2004. The review referred to the Applicant's solicitors' contention that the three factors mentioned above "amount[ed] to a significant and material change in [her] circumstances". This was rejected on the basis that:
"I consider that you have remained homeless since my Council discharged its responsibility to you in April 2002 and that there has been no intervening period of settled accommodation; you were with your father for only nine months before [your brother] was released from prison and thereafter the property was unsuitable due to his drug use."
The letter went on to reject as relevant the birth of the second child on the ground that Johnson House would have been suitable for a couple with two children.
In accordance with the advice as to her rights in that letter, the Applicant appealed that review decision to the County Court. On 26 July 2004, Judge Hornby allowed the appeal on the ground that the Council, by asking themselves whether there had been a material change in the Applicant's circumstances since the Council's offer of Johnson House, had applied the wrong test. He held that, in light of the decision of the House of Lords in R v London Borough of Harrow ex p Fahia [1998] 1WLR 1396, the Council should have approached the second application in the same way in which they would, and were required to, approach any application based on an applicant's alleged homelessness, under Part VII of the 1996 Act. Although the Judge allowed the Applicant's appeal, he made no order for costs.
The Council now appeal to this Court with the permission of Potter LJ, and the Applicant cross-appeals the order for costs, with our permission.
Part VII of the Housing Act 1996
The first Statute to deal with the duty of local housing authorities towards the homeless was the Housing (Homeless Persons) Act 1977. This was repealed and substantially re-enacted in Part III of the consolidating (and amending) Housing Act 1985. Part III of the 1985 Act was itself repealed and re-enacted, albeit in somewhat reformulated terms, in Part VII of the 1996 Act. Part VII of the 1996 Act has been the subject of significant amendments by the Homelessness Act 2002. As this case is concerned with the 1996 Act (as amended by the 2002 Act) I will confine myself, at any rate at this stage, to the provisions of that Act. Accordingly, I do not propose to identify all the provisions of the 1977 or 1985 Acts, although most of the authorities relevant to the present issue, including Fahia, involved one of those two earlier Statutes.
The Housing Act 1996 was concerned, according to its long title, "to make provision… about the social rented sector … the allocation of housing accommodation by local housing authorities and homelessness …". Part VI of the 1996 Act is directed to the provision of housing under arrangements which give long term accommodation to tenants, who will normally enjoy security of tenure in accordance with the secure tenancy provisions of the 1985 Act. As I have mentioned, the provisions relating to homelessness are contained in Part VII of the 1996 Act, which contains sections 175 to 218.
Homelessness and threat of homelessness are defined in section 175, as expanded by sections 176 and 177, of the 1996 Act. A person with accommodation can claim to be homeless provided that it would not be "reasonable for him to continue to occupy it"—see sections 176 and 177. Sections 179 to 182 are concerned with the duty, imposed on local housing authorities by section 179(1), "to secure that advice and information about homelessness … is available … to any person in their district."
Section 183(1) of the 1996 Act provides:
"The following provisions of this Part apply where a person applies to a local housing...
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