In Waltham Forest v Maloba [2007] EWCA Civ 1281, the Court of Appeal has revisited the issue of ‘reasonable to occupy’ in terms of the homelessness provisions of Housing Act 1996.

Briefly, the facts were that Mr M had lived in the UK since 1989 and acquired British Citizenship in 1997. On a visit to his family in Uganda, he married and had a child. For two years, Mrs M and their daughter lived in an annex to a property in Uganda, which had belonged to his late father but was now occupied by Mr M’s brother and one of his sisters. it was considered to be a ‘family’ property, where any of the family could live. In 2004 Mrs M and their daughter came to join Mr M in the UK. After a few months, it became clear that they would not be able to continue in their rented accommodation. Mr M applied to Waltham Forest as homeless.

The authority decided, and confirmed on review, that Mr M has accommodation that he was entitled to occupy – the property in Uganda – and thatthis property was reasonable for him to occupy. He was therefore not homeless. This despite Mr M reasonably pointing out that he was a UK citizen and his life was in the UK.

The decision was overturned as Wednesbury unreasonable on s.204 appeal. The authority went to the Court of Appeal.

The authority’s grounds were

a) that a strict construction of HA 1996 s.175 meant that it was only obliged to consider whether accommodation was available, not whether it was reasonable.

b) if it was obliged to consider reasonableness to occupy, this was only in reference to size and facilities, not location or other factors.

c) Even of this was wrong, all relevant factors were in anyhow considered, so not Wednesbury.

For a) the authority relied on Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306, in particular, Sedley LJ’s statement that that s 175(3) stood apart from s 175(1) and (2), and that they could not be read together. Thus the requirement that accomodation was available was distinct from its fitness. The oddness of this distinction was saved in his view by the belief that no responsible local authority would ever contemplate expecting an applicant to act in that way.

Ah, how long ago the happy optimism of 2001 seems.

Auld LJ, in the minority of the final decision, instead said that

“In my view, it is plain that Parliament was not using continued occupation in the sense of continuance of an actual occupation at the time of the application, but of continuance stemming from one of the entitlements to occupy specified in section 175(1).”

thus expressly linking available accomodation with reasonableness of occupation and avoiding the perverse result that a local authority could require someone to return or go to accommodation that was available to them, regardless of whether it would be reasonable for them to occupy it.

Auld’s view did not prevail in Begum, although it worth noting that nothing in that case hung on this point, it was purely hypothetical.

In an extended and interestingly purposive reading of the statute, LJ Toulson accepts Auld’s view. The argument is that something like it was intended in the statute, via the incorporation of the intial judgment of Hodgson J in R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484 into the terms of the Housing and Planning Act 1986 and thence the Housing Act 1996.

There is no distinction, for the purposes of s.175, between someone who is living in accommodation that is not reasonable for them to occupy, and someone who is not living there but has such accommodation available to them.

Given that it is possible to reach a construction of the terms of the statute that does not have this effect, it is not necessary to reach the conclusions that a strict construction would lead to.

For good measure, reasonableness of occupation is not solely restricted to the physical nature of the accommodation. Reasonableness is a question of fact, and there is no need or basis to set such a limitation on the facts to be considered.

There is also an interesting argument on costs and public funding in a successful appeal (or perhaps a Judicial Review), where the matter has been remitted for a fresh decision and a further appeal (or application for review) might be anticipated from it.

The authority wanted a costs order stayed until the outcome of such (entirely hypothetical) proceedings, so as to enable them to set the costs against a succesful outcome against the publicly funded opponent in that futrue case.

Sigh. If a legal aid lawyer wins a s.204 appeal or on permission or substantive Judicial Review, we get costs at commercial rates, not the legal aid rate. Something like 60 to 110% increase. As the Law Society, as intervener, pointed out, this is a factor in keeping legal aid practices going, doing this kind of work.

Thankfully, the Court of Appeal declined to set a precedent in these matters and allowed the first hearing costs order to stand.