Sharif v The London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Kerr,Lady Hale,Lord Hope |
| Judgment Date | 20 February 2013 |
| Neutral Citation | [2013] UKSC 10 |
| Date | 20 February 2013 |
| Court | Supreme Court |
[2013] UKSC 10
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Kerr
Lord Carnwath
Appellant
Andrew Arden QC
Iain Colville
(Instructed by London Services)
Respondent
Nathalie Lieven QC
Martin Hodgson
(Instructed by Edwards Borough of Camden Legal Duthie)
Heard on 17 January 2013
Lord Carnwath (with whom Lord Walker agrees)
This appeal raises a short point under Part VII of the Housing Act 1996. The 1996 Act contains a set of provisions dealing with the obligations for housing authorities to those found to be homeless or threatened with homelessness. They were originally enacted in the Housing (Homeless Persons) Act 1977. Although there have been significant amendments, the general structure of the provisions has remained largely unaltered, as has the underlying principle that a home is somewhere which can accommodate a family together.
Thus in Din (Taj) v Wandsworth London Borough Council [1983] AC 657, Lord Fraser said:
"One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in a hostels while children were taken into care and the family thus split up … " (p 668 D-G)
That principle is clearly established in the first two sections. "Homelessness" is defined by section 175(1) as follows:
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession
(2)…
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
By section 176:
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with–
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him.
References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly."
Thus what I shall call the "extended" meaning of "available for his occupation", as defined by section 176, runs through the whole of Part VII of the 1996 Act. It is relevant not only in establishing whether a person is homeless under section 175, but also for setting the authority's duty towards him if so found, including both their interim duty to provide accommodation pending a decision (section 188(1)), and (as in the present case) their final duty to someone found to be in a priority need and not intentionally homeless (section 193(2)).
By contrast, no specific standard of "accommodation" has been laid down by Parliament. As Lord Brightman said in R v Hillingdon LBC ex p. Puhlhofer [1986] AC 484, discussing the 1977 Act:
"In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word 'accommodation' in section 1 or section 4 of the Act, and none is to be implied. The word 'appropriate' or 'reasonable' is not to be imported. Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of Part II of the Housing Act 1957 or might involve overcrowding within the meaning of Part IV. Those particular statutory criteria are not to be imported into the Homeless Persons Act for any purpose. What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. There are no rules. Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all … What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language." (p 517 E-G)
He added that, while the statutory definition of "overcrowding" had no relevance, overcrowding was not necessarily a factor to be disregarded altogether:
"…accommodation must, by definition, be capable of accommodating. If, therefore, a place is properly capable of being regarded as accommodation from an objective standpoint, but is so small a space that it is incapable of accommodating the applicant together with other persons who normally reside with him as members of his family, then on the facts of such a case the applicant would be homeless because he would have no accommodation in any relevant sense". (pp 517 H – 518 A)
Some of Lord Brightman's assumptions about the intentions of Parliament seem to have been falsified shortly afterwards. Section 14 of the Housing and Planning Act 1986 introduced a requirement to disregard accommodation which it is not "reasonable for him to continue to occupy" (see now section 175(3) of the 1996 Act, quoted above). It also introduced a requirement that accommodation provided by the authority should be "suitable" (see now section 206(1) of the 1996 Act). In determining "suitability" the authority were required to "have regard to" the statutory provisions covering housing standards (see now section 210 of the 1996 Act). To that extent it mitigated the apparent harshness of the test laid down by the House of Lords in Puhlhofer. However it did not alter the definition of "accommodation" as such, nor detract from the authority of what Lord Brightman said about that word taken on its own.
The issue in this case, in short, is to what extent (if at all) the extended meaning of the expression "available for his occupation" in the 1996 Act implies a requirement that the family be accommodated not only together, but in a single unit of accommodation.
The facts are sufficiently summarised in the agreed statement of facts and issues:
"On 3 June 2004, the Appellants, the London Borough of Camden ('the Council') accepted a full duty to secure that suitable accommodation was available for occupation by the Respondent, Ms Sharif, under s.193(2), Housing Act 1996. The Council accepted that Ms Sharif's father, Mr Sharif-Ali, a man in his 60s with some health problems, and her sister, Zainab Sharif (aged 14), lived with Ms Sharif and were therefore part of her household. Accordingly Ms Sharif's father and sister are entitled to be accommodated with Ms Sharif under the said housing duty.
Ms Sharif and her household were initially accommodated by the Council in hostel accommodation but, in 2004, they were accommodated – also under s.193(2) – at 83 Lopen Road, London N18 1PT (a 3 bedroom house) under a private sector leasing scheme.
On 6 November 2009, still by way of accommodation under s. 193(2), the Council asked Ms Sharif and the household to move to two units (nos. 125 and 132) on the same floor of Englands Lane Residence, London NW3, a hostel used by the Council to accommodate homeless applicants. Each unit comprised a single bed-sitting room with cooking facilities, plus bathroom/w.c. The two units were separated by a few yards. No. 125 can accommodate two single people; No. 132 is suitable for one. It was envisaged that Ms Sharif and her sister would sleep in No. 125 and their father in No. 132."
Ms Sharif refused the offer as unsuitable, because it comprised two separate units; due to her father's medical condition they needed to be able to live as a family in the same unit. On 23 December 2009 the council confirmed that the offer was considered suitable, although not an "ideal living arrangement", and that accordingly their housing obligation to her had come to an end (see section 193(5) of the 1996 Act). Ms Sharif requested a review of the decision on suitability, again mainly on the grounds of her father's ill health and the need to provide care for him. It does not seem to have been suggested that lack of communal facilities as such was an issue. On 16 February 2010 the council upheld their decision. The review decision contained a detailed consideration of the facts, including the medical advice received by the Council, which in some respects differed from assertions made on behalf of Ms Sharif. In particular, the reviewing officer was not persuaded that the distance between the two units was a significant problem:
"I am not persuaded that your client would experience any significant difficulties in attending her father in a separate flat which your client agrees herself was only a few yards away. Walking from one flat to another and cleaning on her father's behalf when necessary would not in my view have been any more challenging than cleaning a three-bedroom house and walking up and down the stairs in the house. I am therefore not persuaded that the accommodation offered to your client was unsuitable as it would be more onerous caring for her sister and father in two separate flats."
At this stage the sole issue was that of suitability; it was not suggested that accommodation in two units was as a matter of law incapable of satisfying the statutory requirement.
Ms Sharif appealed to the London Central County Court on various points of law (both procedural and substantive), as she was entitled to do by virtue of section 204 of the 1996 Act. The present issue was raised for the first time by an amendment...
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