17/04/2008

Women's refuges and homelessness

Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378

This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.

These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.

In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.

In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.

In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.

Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.

The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later  judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996.  Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 – reasonable to continue to occupy).

Following Awua, the Court held that reasonable to occupy was not equivalent to ‘settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).

In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.

The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.

Manchester’s appeal granted. Richards’ appeal dismisssed.

The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute – an order by the Secretary of State.

The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.

(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ‘suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)

This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position

As far as I can see, there are three options from here:

i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.

ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.

iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.

The Guidelines – matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 – are at paras 49 and 50:

49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(c) her ability to afford it;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.


Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.

Martin Hodgson, instructed by Anthony Gold, for Richards.

Martin Chamberlain for the SoS.

Clive Freedman QC and Zoe Thompson for Manchester

James Findlay and Wayne Beglan for Ipswich

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.

4 Comments

  1. michael paget

    this is bad news indeed for Refuge organisations – they have always viewed their accommodation as temporary (in the general sense)

    Reply
  2. J

    In policy terms it is a disapointing decision, I agree. I’d be surprised if the Sec. of State made an order exempting refuges, which means that there will now be a wave of s.204 appeals trying to apply the guidance contained in paras. 49 and 50.

    Try as I might though, I can’t say that the substantive decision is wrong in law (and believe me, I’ve been trying since yesterday!)

    Reply
  3. Nearly Legal

    I have spent a while on it and can’t see a way past it, I must admit.

    Reply
  4. afifa

    This is certainly a bad news for vulnerable women with children residing in Refuge… very disappointing !!

    Reply

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