Not for the first time, I (and I suspect others) have been completely wrong-footed by Baroness Hale. It would be fair to say that the House of Lords judgment in the joined appeals in Birmingham v Ali and Moran v Manchester [2009] UKHL 36 has come as something of surprise. Unfortunately, its effects will be felt for a long time and it looks likely to initiate a whole new sub-category of litigation in homeless cases, the ‘are we there yet?’ claim. On the positive side, though, its effects on Women’s Refuges are helpful, largely removing the danger that a refuge place would be classed as accommodation in which it was reasonable to remain for homeless application purposes.

First the background on issues in the joined cases (and should you wish, our reports on Ali/Aweys and Moran in the Court of Appeal).

Birmingham v Ali (formerly Birmingham v Aweys) concerned Birmingham’s policy of leaving the homeless at home in the same property, once a duty under s.193(2) had been accepted, and placing them on the Part VI allocation scheme in Band B, where homeless in temporary accommodation were placed in Band A. In the High Court and the Court of Appeal, it was found that the duty to provide accommodation under s.193(2) Housing Act 1996, which must be ‘suitable’ under s.206(1), meant that suitable accommodation had to be provided immediately or a within a reasonably short time. Both High Court and Court of Appeal found that accommodation in which it was not reasonable to expect the applicant to remain (the s.175(3) homelessness test) could not be suitable accommodation for the purposes of s.193. The Court of Appeal held that ‘suitable’ had to be the same before and after the housing duty arose. Further, being placed on the allocation list was not satisfaction of the 193 duty. Yet further, Birmingham’s allocation policy which distinguished between the homeless at home and the homeless in temporary accommodation was unlawful as the distinction was irrational.

Moran v Manchester concerned Manchester’s finding that a women’s refuge was ‘accommodation in which it was reasonable to remain’ such that in losing her place at the refuge Ms Moran had made herself intentionally homeless. The Court of Appeal had found that a refuge a) was accommodation and b) was capable of being accommodation in which it was reasonable to remain depending on the facts. This did, of course, mean that women’s refuges were in danger of seizing up, as the women in the refuges would not, or not necessarily be classed as homeless.

In the House of Lords, at the Lords request, the cases were placed together, although heard months apart. The reason why becomes apparent. The sole opinion is from Baroness Hale, although in effect a joint opinion with Lord Neuberger.

The main issue in both cases is identified as the meaning of the the phrase ‘accommodation which it would be reasonable for him to continue to occupy’ (s.175(3)) and its links to s.191(1) on intentional homelessness. There are other issues on Birmingham’s appeal, which I’ll come to later.

Baroness Hale states that the phrase ‘would be reasonable for him to continue to occupy’ looks to the future as well as describing a current state. It is looking at occupation over time [para 36], where s.177(1) states simply ‘it is not reasonable’ to occupy property where there is a risk of violence. This is in accord with the Act’s orientation to those who are homeless or ‘threatened with homelessness’.

The definition of ‘reasonable to continue to occupy’ is therefore to be taken as meaning that someone can be homeless if they have accommodation which it is ‘not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene’ [para 34].

This means that someone can be accepted as homeless ‘even though they can actually get by where they are for a little while longer’. [para 38]. ‘Not reasonable to continue to occupy’ doesn’t necessarily mean that the person cannot spend another night in the property – and if they can’t then the s.188 temporary accommodation duty would be triggered immediately and so into the s.193 duty.

However, as the authority can satisfy the full duty under s.193(2) by providing temporary accommodation (followed of course by provision of further accommodation) it is clear that accommodation which it may be unreasonable to occupy for a long period can nevertheless be reasonable to occupy for a short period. Accordingly:

there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty. [para 42]

The requirement that the accommodation arranged under s.188 or under s.193 (for temporary accommodation) be suitable means that it must be suitable for the period of occupation envisaged., What is suitable in the short term may not be suitable in the medium or longer term. [para 47]

So the same property in which it would not be reasonable for the homeless applicant to continue to remain under s.175(3) may be suitable for his/her continued occupation in discharge of s.188 or s.193(2) duties!

Moran v Manchester is thus disposed of. A women’s refuge will not be accommodation that it would be reasonable for the woman to occupy indefinitely, unless there are clear facts indicating that circumstances are otherwise. It would therefore fall under s.175(3) and she would be homeless as long as she stayed there. There is therefore no need to deal with the issue of whether the refuge was accommodation at all (Sidhu) or whether it was caught by the decision in Puhlhofer, as was the issue in the Court of Appeal, although the Court of Appeal was right that Sidhu did not survive Puhlhofer [paras 52-56].

On the Birmingham cases, the issue becomes at what point the accommodation could no longer be described as suitable for discharge of the s.193(2) duty and the local authority would therefore have to secure alternative accommodation under that duty. [para 48]

Baroness Hale, while acknowledging that ‘it may be’ that the Birmingham cases meant the Council was on breach of its duty at some point, says that this is a question that turns on the particular facts in a case. As the basis on which the Birmingham cases were brought was on the principle, rather than their specific facts, there was no longer any basis for a decision in their favour in the claim.

On the practical implications, a court faced with a claim that the person has been left in the accommodation for too long should be slow to accept that this is so, as it is primarily a question for the authority. Nonetheless, there will be cases where the court ought to step in. While it would be wrong to ignore pressures on stock, budgets and personnel on the part of the authority, one cannot overlook the clear duty to the homeless imposed on the authority. So there will be cases where the present accommodation is so bad, or has gone on for so long that the court will conclude enough is enough [para 51]

And that was main argument done with. On the lawfulness of Birmingham’s allocation policy, it is clear that Part VI and Part VII duties are different. Performing a Part VI duty does not mean that the Part VII duty is satisfied and vice versa. Birmingham’s view that temporary accommodation was automatically Band A and homeless at home automatically Band B meant that the Council could not address the ‘short term’ basis of the suitability of the homeless at home accommodation.

As far as the Court of Appeal’s judgment on the allocation policy was based on the conclusion that the applicants could not lawfully have been left in their current accommodation, it was wrong. However, that judgment was also based on the view that the Part VII duty to both groups was identical and it was unlawful to prioritise one.

R (Ahmad) v Newham LBC[2009] UKHL 14 (our report) suggested that, as long as a reasonable preference was given to all homeless applicants, there was no reason why an authority should not decide to give further priority to one group over another, as long as it was not irrational.

However, on the sparse information given to the court, there did not appear to be a rational justification for the policy of prioritising those in temporary accommodation over the homeless at home where a duty had been accepted. So, the policy was unlawful on that basis.

Thus the result was:

Moran v Manchester: Appeal upheld.
Birmingham v Ali: It is lawful for Birmingham to leave the ‘homeless at home’ where they are in the short term. It is not lawful for Birmingham to leave them there until a property becomes available under the allocation scheme – the present accommodation may well become unsuitable long before then. The allocation policy is unlawful to the extent that it gives priority to people in one type of temporary accommodation which is no less satisfactory than that of the homeless at home.

Comment.
It is perhaps difficult to resist the view that, having arrived at a neat and effective solution to the problem posed by Moran v Manchester – where the ‘it is not accommodation’ argument was in real trouble – the Lords sought to map that onto Birmingham v Ali and achieve a ‘practical’ result. But, as far as I can see, Baroness Hale and Lord Neuberger have effectively read in the word ‘indefinitely’ to s.175(3) such that it reads ‘A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy [indefinitely]’. Certainly that is the implication of para 52.

I’m deeply uneasy with this idea of a ‘forward looking’ sense to s.175(3). ‘Forward looking’ is covered by s.175(4) – likely to become homeless within 28 days. The forward looking aspect of s.175(3) is surely that continued occupation after this point in time would be unreasonable.

It may be worth considering whether the judgment opens up a whole new aspect to homelessness applications – ‘not reasonable to remain indefinitely’, as that appears to be the clear implication.

And then suitability in respect of s.188, s.190 and s.193 accommodation. Clearly, suitability is, in terms of temporary accommodation, not an issue of suitability for indefinite occupation. But as a not so hypothetical question, given the facts in the Birmingham cases, how can a statutorily overcrowded property where a duty is accepted be suitable for any length of time? (although Harouki v RB Kensington & Chelsea suggests otherwise, but may itself be wrongly decided in the light of this case) – but of course this is question of circumstance and fact that we will be now left to litigate as ‘no longer suitable’ (‘are we there yet’) cases. I can say with complete confidence that the legacy of Baroness Hale’s opinion will be a couple of years of cases on ‘suitability’.

And what will be the venue? If the assumption is that remaining in the property is discharge of s.188 or s.193(2) duty, is the route via s.202 review and s.204 appeal? Or, if it is a freestanding decision, is it subject to judicial review? Para 50 does not make it clear, with passages that might imply both routes. Should we expect a case or two on this issue. Of course, if the authority refuses or fails to consider a submission on (un)suitability, that is a JR.

The upshot is that the ‘practical’ solution will mean a lot of litigation, leave a lot of people in properties in which it is not reasonable for them to remain, but, on the plus side, solve the disaster facing women’s refuges. Birmingham’s previous allocation policy is also left unlawful, which, frankly, has to be a good thing as a rational justification was nowhere in sight.

Heaven knows how costs were allocated on the Birmingham cases, but there will be a certain unhappy Birmingham based practice… Plus I will have to swallow all previous ‘intent on suicide’ comments – intent on self mutilation, perhaps, but not suicide on Brum’s part. Whether they are going to like the legacy in practice is another matter entirely.