Said El Goure v The Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Moore-Bick,Lady Justice Black |
| Judgment Date | 18 May 2012 |
| Neutral Citation | [2012] EWCA Civ 670 |
| Docket Number | Case No: B5/2011/0821 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2012 |
[2012] EWCA Civ 670
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ FABER
Claim No: 0CL40120
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Moore-Bick
and
Lady Justice Black
Case No: B5/2011/0821
Mr Jonathan Manning and Ms Stephanie Smith (instructed by Gillian Radford & Co) for the Appellant
Mr David Lintott (instructed by Legal Services Royal Borough of Kensington & Chelsea) for the Respondent
Hearing date: 7 th March 2012
Introduction
This case is primarily a dispute about the correct criterion for priority need on an application for housing assistance by a homeless father with two small children, who live with their mother, not with him.
Issues of the dependency of children, their needs and reasonable expectations of where they might reside have been fully debated against a background of parental separation and maternal disabilities. The mother, with whom the children reside, is separated from the father. He says that the children could reasonably be expected to reside with him and that he is therefore a priority housing case, contrary to the original decision of the local housing authority, which was upheld first on review and then on appeal.
There is also a procedural point. It turns on the duty of a local housing authority under regulation 6(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (the Review Regulations) to notify the father, as a homeless person, of his right to make representations, either himself or someone acting on his behalf, on a review of their decision turning down his priority housing application.
The object of this litigation is to secure for the father provision of accommodation by the local authority, so that the home care of the children undertaken by him will be at his place instead of at their mother's place. To that end he wants this court to quash the review decision for errors of interpretation and application of the substantive law and for procedural irregularity, so that local housing authority will then have to re-consider his application on the correct legal basis and in a manner compliant with procedural requirements.
Mr Said El-Goure (the appellant) appealed against the review of the original housing decision of the Royal Borough of Kensington & Chelsea (the Council) to the county court under s. 204 of the Housing Act 1996 (the 1996 Act). HHJ Faber dismissed his appeal by order dated 10 March 2011.
On 20 July 2011 Rimer LJ refused permission for a second appeal. At an oral hearing on 11 November 2011 I adjourned the renewed application for permission to appeal to the full court to be heard and determined with an appeal in the case of Maswaku v Westminster City Council (Case No B5/2011/0973), for which permission had been granted by Patten LJ on two grounds. As in Maswaku, one of the grounds of appeal was non-compliance with the procedural requirements of regulation 6(2) of the Review Regulations, which was thought to involve an important point of principle or practice.
According to my reckoning this is the sixth time on which the appellant's application has been officially considered, starting with the Council's original decision on the merits of the application, followed by an unsuccessful review, an unsuccessful appeal to the County Court, an unsuccessful paper application for permission to appeal to this court, a renewed oral hearing at which the application was adjourned to the full court and then this appeal. Given the history of repeated re-consideration of the appellant's case and the detailed representations received from his lawyers at every stage, the accusation that he has been denied a fair procedure is somewhat surprising.
Main point
The principal ground of appeal is that there is an error of law in the original decision of the Council, which should have been set aside on review or on the first appeal. The decision was that the appellant was not in priority need, as it was not considered reasonable for him to expect his children, who reside with their mother, also to reside with him in separate accommodation provided by the local housing authority. The basic criticism of the Council's decisions is that the wrong legal test was applied to the case by asking the question whether the circumstances of the case were "exceptional", when that was not the right question in the light of the legislation, as interpreted by the House of Lords in Holmes-Moorhouse v. Richmond-upon-Thames LBC [2009] UKHL 7; [2009] 1 WLR 413 ( Holmes-Moorhouse).
The correct test was enacted in the 1996 Act. In order to qualify for accommodation under s.189(1)(b) in Part VII ("Homelessness") of the 1996 Act as a case of priority need the appellant had to show that, although the children had been living in accommodation with their mother since parental separation, he was:—
"…a person with whom dependent children reside or might reasonably be expected to reside."
In his judgment in Holmes-Moorhouse Lord Hoffmann described (in paragraph 21) the statement in paragraph 8.10 of the Homelessness Code of Guidance for Local Authorities that "it would only be in very exceptional cases though that a child might be considered to reside with both parents" as unhelpful, if taken literally, because in most cases the question will not be whether the child is residing with both parents, but whether, after a separation, he might reasonably be expected to do so. He added that:
"Nevertheless, the sentiment which it [the 'unhelpful' Guidance statement] expressed was based on sound instinct because I think it will only be in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided under Part VII with another so that he can reside with the other parent as well. It seems to me likely that the needs of the children will have to be exceptional before a housing authority will decide that it is reasonable to expect an applicant to be provided with accommodation for them which will stand empty for at least half of the time. I do not say that there may not be such a case; for example, if there is a child suffering from a disability which makes it imperative for care to be shared between separated parents. But such cases, in which that child (but not necessarily any sibling) might reasonably be expected to reside with both parents, will be unusual."
Lord Hoffmann went on to pay compliments to the county court judge on the clarity and succinctness of his judgment. He quoted with approval a passage in which the judge said that it was for the local housing authority, rather than the court, to consider whether or not a child might reasonably be expected to reside with both parents for housing under Part VII, having regard to their housing resources and other matters. In particular, the housing authority would have to consider whether they should provide two homes, one to each parent, both of which houses were likely to be under-occupied.
The appellant contended that in this case the Council and the court have put an unwarranted gloss on Lord Hoffmann's judgment by applying a test of "exceptional circumstances" or "exceptionality" which sets the standards of priority need too high. It is obvious that Lord Hoffmann did not lay down, and could not constitutionally lay down, judicial criteria of "exceptional circumstances" in substitution for the statutory test of reasonable expectation of residence.
In any event, the appellant said that the circumstances of his case were in fact "exceptional" and that the Council and the reviewer erred in law in deciding that they were not.
More facts
On 6 November 2009 the appellant applied to the Council for homelessness assistance. On 15 January 2010 the Council found that he was not in priority need. On 6 May 2010 that decision was upheld by the reviewing officer. No reference was made at that stage to the need for priority by virtue of dependent children.
On 7 June 2010 the appellant made a new homelessness application on the basis that Miss Nadia Touzani, his estranged partner, with whom the children were and still are living, had asked him to share care of their children, as she was no longer able to cope on her own due to her disabilities (disc degeneration on the spine, stabbing attacks in the back, agonising pain, knee stiffness, depression and panic attacks.)
After making inquiries the Council issued a decision on 20 July 2010 that they did not consider that the appellant was in priority need under s.189 of the 1996 Act. The basis of the decision was that the children were accommodated with their mother and that the appellant was not a person with whom a dependent child resided or might reasonably be expected to reside. In the decision letter the Housing and Homelessness Assessment Officer said:—
"I have concluded that whilst your involvement with the children is very significant, they are currently dependent on and have accommodation with their mother and I believe that you can continue to provide emotional and financial support for your children whilst they reside with their mother.
I understand that you would like a home in which your children can stay when they spend time with you. In considering whether a child can be said to live at two different addresses, a local authority can have regard to the general housing conditions in their area ( R v Oxford CC, ex parte Doyle (1997)) I have considered this and in so doing have had regard to the general housing conditions in Kensington & Chelsea, where the demand for social housing far outweighs the supply. Having done so, I have considered the fact that both your children...
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