Sharif v The London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Wilson,Lord Justice Jacob |
| Judgment Date | 20 April 2011 |
| Neutral Citation | [2011] EWCA Civ 463 |
| Date | 20 April 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2010/1701 |
[2011] EWCA Civ 463
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
OCL40013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jacob
Lord Justice Wilson
and
Lord Justice Etherton
Case No: B5/2010/1701
Mr Martin Hodgson (instructed by Edwards Duthie Solicitors) for the Appellant
Mr Iain Colville (instructed by London Borough of Camden) for the Respondent
Hearing date: 10th March 2011
Introduction
This is an appeal from the order dated 28 June 2010 of His Honour Judge Mitchell in the Central London County Court. By that order he dismissed the appeal of the appellant, AS, from the review decision of the respondent, the London Borough of Camden ("Camden"), that Camden had discharged its duty to house the appellant pursuant to the homelessness provisions of Part 7 of the Housing Act 1996 ("the Act").
The issue on the appeal is a short but important one concerning the type of accommodation which must be made available by a local housing authority to an applicant under Part 7 of the Act where one or more other persons normally reside with the applicant as members of his or her family. The issue is whether that accommodation can be provided by way of two or more self-contained units of accommodation, each to be occupied by different family members, and none of the family members sharing any communal living areas. Camden contends, and the Judge held, that the offer of such accommodation is capable of discharging the housing authority's duties under Part 7.
The factual background
The appellant lives together with her father, who is not in good health and for whom she acts as a carer, and her younger sister, who is a minor and attends school. Camden accepted that it owed a full housing duty to the appellant under Part 7 of the Act. Camden secured temporary accommodation for all three of them in a private sector three bedroom house in the Tottenham area of London. They have lived there since October 2004. In November 2009 Camden offered the appellant by way of further temporary accommodation two separate flats, [addresses] London NW3, in a building used as a hostel by Camden. One of the flats could accommodate two single people, and the other was suitable for one person. The intention was that one would be occupied by the appellant and her sister, and the other would be occupied by the appellant's father. The flats were some yards apart, but on the same floor. Camden notified the appellant that it considered the flats were suitable accommodation for her and her household under section 193(5) of the Act.
The appellant refused the offer. She gave her reasons in a letter dated 10 November 2009. They were principally that the accommodation offered consisted of two separate units, and, due to her father's medical condition and the fact they should be permitted to live as a single family unit in the same accommodation, the property offered was unsuitable.
On 23 December 2009 Camden upheld its decision that the offered accommodation was suitable, and notified the appellant that, as a result of her refusal of the offer, Camden's full housing duty had come to an end by operation of section 193(5) of the Act.
The appellant requested a review pursuant to section 202 of the Act. On 16 February 2010 Camden's review officer notified the appellant that he considered the offered accommodation was suitable, and that he upheld Camden's original decision, and that Camden had discharged its duty to her and had no duty to continue to provide her with accommodation.
The appellant appealed to the County Court pursuant to section 204 of the Act. That appeal was, as I have said, dismissed by HH Judge Mitchell.
The legislation
The statutory framework, so far as relevant to the determination of this appeal, may be summarised as follows.
Part 7 of the Act sets out the duties and powers of a local housing authority in relation to receiving, and reaching a decision on, an application from a homeless person for accommodation and assistance under that Part.
Section 193(2) of the Act imposes on a local housing authority a duty to "secure that accommodation is available for occupation by [an] applicant" who is homeless, eligible for assistance and has a priority need, and has not become homeless intentionally. By section 193(5) the authority ceases to be subject to that duty if the applicant, having been informed of the possible consequence of refusal and of his or her right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority is satisfied is suitable for the applicant and the authority notifies the applicant that it regards itself as having discharged its duty under the section.
Section 206 of the Act provides as follows, so far as relevant:
"206 Discharge of functions by local housing authorities
(1) A local housing authority may discharge their housing functions under this Part only in the following ways –
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
The meaning of accommodation available for occupation, for the purposes of Part 7, is set out in section 176 of the Act, which is the critical provision on this appeal. It is as follows:
"176 Meaning of accommodation available for occupation
Accommodation shall be regarded as available for a person's occupation 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."
The judgment below
The Judge rejected the appellant's argument that, on a proper interpretation of section 176 of the Act, a housing authority cannot lawfully discharge its duty under Part 7 by offering two flats rather than one unit of accommodation. He said that the Guidance issued by the Secretary of State, to which local housing authorities are required by section 182 of the Act to have regard in the exercise of their functions relating to homelessness, indicates that authorities can use hostels. He referred to London Borough of Ealing ex p. Surdonja (1999) 31 HLR 686 and R v Hillingdon LBC ex p. Puhlhofer [1986] AC 486. He said that Scott Baker J in Ex p. Surdonja indicated that he was of the view that local authorities can fulfil their obligations by offering what could be described as split accommodation. The Judge quoted Lord Brightman in Ex p. Puhlhofer, and, in particular, Lord Brightman's observation (in the context of the Housing (Homeless Persons) Act 1977 ("the 1977 Act") at 517E-G that it was for the local authority to decide as a matter of fact whether something was accommodation within the ordinary meaning of that word. The Judge then considered the issue of suitability, and held that suitability had been properly considered by the review officer, and so the appeal on that ground also failed. The Judge rejected the appellant's other complaints based on procedural unfairness and Camden's housing policy. The Judge said that he had no alternative but to dismiss the appeal, albeit with considerable sympathy.
The appeal
The appeal to this court is limited to the issue whether, on a proper interpretation of section 176 of the Act, Camden could discharge its duty to secure accommodation for the appellant under Part 7 by providing two self contained flats, with no shared communal living areas. It is common ground that the appellant's father normally resided with her for the purposes of section 176(a). No permission has been sought or granted in relation to the suitability of the offered accommodation.
Discussion
I would allow this appeal, essentially for the reasons ably advanced by Mr Martin Hodgson, the appellant's counsel.
In a case like the present, where the housing authority accepts that it owes a full housing duty to the applicant under Part 7 of the Act, the authority is required by section 193(2) of the Act to secure that "accommodation is available for occupation by the applicant". Section 176 of the Act defines the meaning of that expression in section 193(2) and elsewhere in Part 7 of the Act. It provides, so far as relevant to this appeal, that "accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with any person who normally resides with him as a member of his family".
The accommodation offered by Camden to the appellant comprised two self-contained flats, on the same floor of the building, but a short distance apart, one of which was offered for occupation by the appellant and her sister and the other by her father. On any ordinary use of language, that was not the provision of accommodation which the appellant and her father were to occupy "together with" one another. They would be living close by each other, but separate from one another. No one could reasonably describe them, in such circumstances, as living "together with" one another. That ordinary meaning of the legislative language is reflected in the wording of section 176(a) which refers to a "person who normally resides with" the applicant. It...
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