Residing together, apart.

Sharif v The London Borough of Camden [2013] UKSC 10

Does accommodation available for occupation by a person and those reasonably expected to reside with them have to be in one unit of accommodation?

In this case, the Court of Appeal had said yes (our report here), rejecting Camden’s argument that two separate flats on the same floor of a hostel building could be considered as ‘accommodation available to occupy’ for Ms Shairf, her much younger sister and her father, who needed her care. The full facts are in our earlier report.

Camden appealed to the Supreme Court.

The issue was the meaning of ‘together with’ in section 176 Housing Act 1996

“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.”

The argument for Camden was that

Etherton LJ’s construction of the statute went beyond what the words justified and would impose an unwarranted burden on the authority. He accepted that one of the social purposes behind the statute was to ensure that families could be kept together. However, that did not necessarily mean in one unit. The correct question to ask was whether the accommodation, even if not in a single unit, was “sufficiently proximate” to fulfil that social purpose. In other words, could the family be described as living “together” even if accommodated in what was technically more than one unit of accommodation? That interpretation was consistent with the history of the legislation and in particular the judgment of Lord Brightman in Puhlhofer. The council was particularly concerned at the suggestion that the statutory requirement could only be satisfied by the provision of “communal living areas”. Such a requirement would be novel to housing law generally, and there was no proper basis for importing it into this Part of the Act.
Mr Arden [QC for Camden] referred also to the decision of the House of Lords in Uratemp Ventures Ltd v Collins [2002] AC 301, relating to the definition of “a dwelling-house let as a separate dwelling” in section 1 of the Housing Act 1988. It was there held that a single room, even without cooking facilities could constitute a “dwelling-house” as defined in the 1988 Act. Lord Millett said:
“In both ordinary and literary usage, residential accommodation is ‘a dwelling’ if it is the occupier’s home… But his home is not the less his home because he does not cook there but prefers to eat out or bring in ready-cooked meals.” (para 31).
By analogy, he submitted, neither the word “accommodation” nor the expression “living together” can in themselves be read as containing any implication as to the nature of the facilities to be provided.

For Ms Sharif:

Ms Lieven QC supports the judgment of the Court of Appeal. She accepts that Etherton LJ may have gone too far in suggesting that there need to be “communal living areas”. However she supports his essential reasoning, based on the ordinary use of language. The accommodation must be available for “living together”. That implies there must at least be somewhere in the accommodation where living together can take place. The test is objective rather than subjective. It is an issue of law on which, at least where the primary facts are not in issue, the court is able to substitute its view for that of the authority. The layout must be such as to facilitate normal family life for those within the scope of the section. That will normally imply a single unit of accommodation, but she accepts that it may be possible to accommodate a family in two rooms in a hostel, provided there is a space where some degree of shared family life can take place, even if that is limited to some shared cooking facilities.

Lord Carnwath held that ‘accommodation’ as a term was neutral, not meaning a single unit. The issue then was the meaning of “available for occupation… together with”. In Lord Carnwath’s view, while it was clear that a single unit of accommodation would pass this test, “it may also be satisfied by two units of accommodation if they are so located that they enable the family to live “together” in practical terms”. Whether the accommodation offered by the Authority satisfied this requirement was a simple factual issue: ” this comes down to an issue of fact, or of factual judgment, for the authority. Short of irrationality it is unlikely to raise any issue of law for the court.”

In this case, while the Review Officer had not addressed the legal question – which had not been raised at that point – the review had considered the care of the father in a separate unit, and found it was no more difficult than on separate floors of a house.

Ms Sharif’s submissions echoed the unsuccessful argument in R v Hillingdon LBC ex p. Puhlhofer [1986] AC 484 that:

“in order to constitute accommodation the premises must be such as to enable the family unit to reside and carry on the ordinary operations of daily life there . . .” (p 505B).

The House of Lords had rejected that, and this remained the position, save for qualifications of reasonableness and suitability, which were no longer in issue in this case.

Further, Lord Carnwath thought that Ms Sharif’s argument would give rise to ‘surprising results. Statutory overcrowding is not relevant to the definition of accommodation available for occupation, though was now relevant to suitability.

Under the Puhlhofer test, a family might be properly accommodated within a single unit even though seriously overcrowded by normal standards. But on Ms Leiven’s submission, the authority would not have been able to improve its position by offering it an additional unit next door. It also has to be remembered that the same definition applies to the temporary accommodation to be provided while a decision is made on the merits of the claim. It would be odd and potentially onerous if, even while the authority were simply considering the merits of the claimant’s position, they were unable to house the family in two adjoining units even on a temporary basis.

Further, Scott Baker J in R v Ealing London Borough Council ex parte Surdonja [1999] 1 ALL ER 566 took the view that:

“In my judgment the obligation is not discharged by providing split accommodation in separate dwellings. It is the policy of the law that families should be kept together; they should be able to live together as a unit. I can well see that the obligation could be discharged by, for example, separate rooms in the same hotel, but not I think in two entirely separate hostels up to a mile apart.” (p 571).

If this were correct, it would be hard to see why two rooms on different floors of a hotel or hostel might satisfy the obligation, but not two adjacent flats. In this case there were cooking facilities in both flats, no doubt at least one set of facilities would be shared.

While Langford Property Co Ltd v Goldrich [1949] 1 KB 511 was a Rent Act case, on whether two self-contained flats let together could amount to ‘a separate dwelling house’. Somervell LJ held:

“In my opinion if the facts justify such a finding, two flats or, indeed, so far as I can see, two houses, could be let as a separate dwelling-house within the meaning of the definition. What happened here was that the tenant wished to accommodate in his home these relatives to whom I have referred, and he wanted more accommodation than could be found or conveniently found in one flat. He therefore took the two flats and made those two flats his home. [Counsel] suggested at one time that there might be some absurdity, if, say, a man took under a single lease (which does not seem very probable) two flats in widely separated districts; but that case can be dealt with when it arises.” (p 517)

While this was a different statutory context, it was helpful on the ordinary use of language in an analogous context.

Appeal upheld.

Lord Walker agreed with Lord Carnwath.

Lope Hope also agreed with Lord Carnwath, adding:

There are, nevertheless, two yardsticks that can be applied. The first is what must be taken to be the ordinary meaning of the words that the test uses. The second is the practical one, which follows on the first. Can it be said, in a practical sense, that all the members of the family are living together, although more than one unit is required to accommodate them? The provision of separate units is not, of course, ideal. Some measure of inconvenience is bound to result if a single unit cannot be found. But Parliament has recognised, by refraining from laying down strict rules, that the situations that may confront the local authority will vary from case to case and that it would be unreasonable to prescribe one solution that must be adopted in all cases.

 

The test is not there to be exploited. It must be applied reasonably and proportionately. So long as that is done, the aim of the test will have been satisfied.

Lady Hale also agreed with Lord Carnwath

I agree that this appeal should be allowed, for the reasons given by Lord Carnwath. I understand that this will seem very harsh to a family who had been housed since 2004 in a three bed-roomed house under a private sector leasing scheme and were then expected to accept much less spacious accommodation. But the suitability of that accommodation is no longer in issue. The only issue is whether it is available for Ms Sharif to occupy “together with” her father and her younger sister.

 

If one accepts that it is open to a local authority to accommodate members of a family in separate rooms in the same hostel or hotel, sharing cooking and/or bathroom facilities with others, then one must accept that it is possible to accommodate them in separate small flats like these, provided that the flats are close enough together to enable them to eat and share time together as a family. There are passages in the judgment of Etherton LJ which appear to suggest that members of a family are only accommodated together if they have some shared communal living space, in the sense of a shared living room. That would, of course, be ideal. And, as was pointed out in Birmingham City Council v Ali; Moran v Manchester City Council [2009] UKSC 36, [2009] 1 WLR 1506, what is suitable for a family to occupy in the short term may not be suitable for them to occupy for a longer period. But we are not concerned with suitability here. To require some communal living space is to impose a standard which is too high to expect local authorities to meet across the whole range of statutory provisions to which the “together with” criterion applies, including the interim duty in section 188 of the 1996 Act. Many of the hotels and hostels currently used to accommodate homeless people do not have a communal living room. It is not surprising, therefore, that Mr Arden, on behalf of the local authority, was particularly concerned about this aspect of the Court of Appeal’s judgment. No doubt many of us would wish that there were a much larger supply of affordable housing to enable homeless families to be accommodated in the way which we would ideally wish them to be accommodated. But there is not and the law does not require local authorities to meet a minimum standard which in practice it would be impossible for many of them to provide.

However, Lord Kerr dissented.

The Housing Act 1996 imposes a duty to provide accommodation which is available to be occupied by one person together with members of his or her family. The legislation clearly contemplates that the accommodation should be provided to an individual. But it is also intended that the accommodation provided to that person should be capable of housing all the members of that person’s family together. That idea is buttressed by the requirement in section 176 of joint occupation. Accommodation is only to be regarded as available for occupation if it is available for occupation by the person to whom it is provided together with any person who normally resides with him as a member of his family.
There is nothing in the legislation which suggests or implies that the statutory duty will be fulfilled by providing accommodation which, taken in combination with other accommodation, is capable of housing together all the members of the family. Nor does the legislation authorise the provision of different units of accommodation which a family, if well disposed to do so, can use on different occasions for shared family activities. If living together as a family is to mean anything, it must mean living as a distinct entity in a single unit of accommodation.

The focus of s.176 was on accommodation, not the use that a particular family might put it. The accommodation must be of such that it is capable of occupation by the members of the family together, togetherness connoting a combination of people into a condition of unity. This required a single unit of accommodation.

The appellant [Camden] suggested that the local authority may exercise a judgment as to whether a series of units are suitable to permit members of the same family to live in a condition of sufficient proximity so that they can function as a family unit. (One may observe, as an aside, that sufficient proximity is quite different as a concept, and may be diametrically different in practice, from living together.) The appellant advanced this argument by seeking to assimilate the duty under section 176 with other Part 7 duties. This is misconceived. Ms Lieven was again right in her submission that other Part 7 duties, where they involve an element of discretion, are expressly provided with that facility in the language of the Act. The duty under section 176 is quite different. It is an obligation to provide accommodation, the physical dimensions of which are sufficient to allow it to be occupied by the person to whom it is made available together with the members of his or her family. Some limited judgment may be exercised by the local authority in discharging that duty but that judgment is geared to the essentially factual exercise of deciding if the accommodation meets those physical requirements.

On Etherton LJ’s suggestion that a feature of accommodation must be communal space where family activities could be enjoyed, this should perhaps be considered as emphasising that the lack of such a feature would indicate that accommodation would not meet the s.176 requirements, rather than being an invariably indispensable requirement. But this was an aside to the principle issue, that there should be “physical accommodation capable of being occupied as a single unit by the person for whom it is provided together with the members of his or her family”.

On Camden’s complaints that the Court of Appeal judgment would place a terrible burden on Local Authorities, unlike Lady Hale and Lord Hope, Lord Kerr was not persuaded:

Much was made by the appellant of the considerable constraints that would be placed on local authorities if they were required to house families in single units and were not afforded the opportunity to exercise judgment as to their accommodation in different units. No evidence was provided to support these (to my mind, at least) somewhat unlikely claims. No suggestion was made that any local authority had accommodated families in this way on any widespread basis in the past. Notably, there is nothing in the Code of Guidance: Homelessness Code of Guidance for Local Authorities (2006) which recommends the practice.

 

But if the opportunity is available to house families in different living units, there is every reason to suppose that local authorities, with the pressures that are placed on them to meet housing need, will, perfectly understandably, seek to exploit that opportunity to the fullest extent. There is therefore a real risk that one of the principal purposes of the legislation (that of bringing and keeping families together) will be, if not undermined, at least put under considerable strain.

Comment

I am afraid that I must side with Lord Kerr. S.176 does not give any discretion, and requires that the accommodation must be such as to enable the household to live together. There is nothing to suggest that this may be by adding together separate units of accommodation. While the focus here was on temporary accommodation, the s.176 requirement also applies to accommodation provided in discharge of duty. The idea that the duty could be discharged by permanent accommodation across different units of accommodation is clearly a non-starter. The majority appear to have been persuaded that the temporary nature of the accommodation in this case made the split accommodation acceptable – and Lady Hale refers expressly to Birmingham CC v Ali on accommodation being suitable in the short term that wouldn’t be in the long term. But suitability is a different issue to the fundamental concern of s.176. There is no time limit on whether accommodation is such as to accommodate the homeless person ‘together with’ their household. It is, or it isn’t.

However, the majority judgment is where we now are.

We should note that the majority, via Andrew Arden QC’s argument, appear to have imported a new term into considerations of both ‘available to occupy’ and, no doubt, into subsequent suitability arguments – that of ‘sufficient proximity’ between separate units of accommodation to be accommodation for one household. Expect arguments over separate flats in the same block, houses on the same street, rooms in the same hotel but not physically connected by interior access, and maybe more.

Setting this up as an issue of factual judgment for the Authority is to fuse s.176 and suitability requirements – for example as Lord Carnwath’s statement that s.176 would be satisfied by “two units of accommodation if they are so located that they enable the family to live “together” in practical terms”. Clearly this is open to variation according to the practical needs of the family, and thus runs into suitability.

Posted in FLW case note, Homeless, Housing law - All and tagged , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

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