21/04/2011

A room of one’s own

Virginia WoolfVirginia Woolf famously remarked that for a woman to write fiction, she required enough means to support herself and a room of her own. For homeless applicants, though, sometimes separated spaces can be the problem.

 

Aliya Sharif v Camden LBC [2011] EWCA Civ 463 (on Lawtel, not on Baili yet)

The issue on this appeal to the Court of Appeal was whether provision of two separate flats on the same floor of a building used as a hostel could be suitable as temporary accommodation for the applicant’s household.

Ms S had applied to Camden as homeless. Her household consisted of her father, who was in poor health and for whom she was the carer, and her younger sister, a minor at school. Camden accepted that it owed Ms S the full housing duty. Camden initially put them in temporary accommodation in a three bed private house. Camden then offered them temporary accommodation in two separate flats, nos 125 and 132, some yards apart, in a building used as a hostel. The proposal was that Ms S and her sister would stay in one flat and her father in the other. Camden took the view that this was suitable accommodation for her and her household under section 193(5) of the Act.

Ms S refused the offer on the basis that her father was not a well man and that they should be permitted to live as a single family unit in the same accommodation. The accommodation was therefore not available to her. Camden upheld the decision that the accommodation was available and suitable and promptly discharged duty under s.193(5).

The decision was upheld on s.202 review. Ms S appealed under s.204 Housing Act 1996.The appeal was dismissed by HHJ Mitchell at Central London County Court.

S.176 provides

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.

On the first appeal below, HHJ Mitchell:

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.

On second appeal to the Court of Appeal, Ms S that Camden could not discharge its duty under s.193 by provision of separate flats. She argued that the meaning of s.176 was that accommodation had to be available for her and any person who ordinarily resided with her and that wholly separate accommodation could not satisfy that requirement.

The Court of Appeal found that the policy of Part VII housing Act 1996 was to keep families together as far as possible (Din v Wandsworth LBC [1983] 1 AC 657 in relation to the 1977 Act precursor). The difference between s.16 of the 1977 act and s.176 was marked in the statement of this intention. S.16 had provided for those ‘reasonably expected to reside’ with the applicant, while s.176 stated ‘normally resides with..’. On any ordinary use of language, s.176 could not be satisfied – they could not be described as living together with each other.

However, Camden argued that ‘accommodation’ was not defined in Part VII Housing Act 1996 and that Puhlhofer meant that accommodation could mean two separate dwellings. Further, Camden’s provision of two flats in the same building was in line with the purposive reading of Part VII to keep families together.

Camden argued that an offer of ‘accommodation’ pure and simple satisfied the requirements of s.176, and all else was an issue of the requirement that the property must be suitable – sections 193(5), 193(7F) and 206(1). Ms S argument that there was a two stage process – “whether the offered accommodation first satisfies a requirement of section 176 to accommodate in one property all the members of the applicant’s family normally residing with the applicant, and, secondly, whether the accommodation is suitable for everyone who will live in it” – was wrong for that reason.

Thus the only test was one of suitability, as supported by Ex p. Surdonja, and so found by the Judge below. (The Court in Surdonja rejected two properties a mile apart as being suitable, but Scott Baker J suggested that ‘separate rooms in the same hotel’ may be suitable). No challenge had been brought to suitability in the Court of Appeal. Reference was also made to R v Lambeth LBC, ex p Ly (1986) 19 HLR 51, in which a judicial review was refused for a Vietnamese grandmother who had just arrived in London to challenge a decision to accommodate her and 4 grandchildren in a property some 2 miles from that was already occupied for some time by her son, daughter in law and another 4 children. (although the ratio was clearly that the others could not ‘reasonably be expected’ – under the 1977 Act – to reside with her, as she had been separated from them for some years and had only just arrived in London).

And, of course, Camden pleaded limited housing stock and resources available to them. Offering a single unit of accommodation may be practically impossible for them. This must be seen in the context of a duty to provide temporary accommodation. If Ms S were right, this would extend to interim accommodation pending decision under s.188.

The Court of Appeal, in Etherton LJ’s sole judgment, held that Camden’s argument that s.176 did no more than identify the group of people against whom suitability was to be assessed was wrong. The statutory language was clear and Camden were ignoring the meaning of ‘together with’.

I do not accept that, on any ordinary use of language, the residents of two self-contained flats, however close are the flats to one another, who do not share any communal living areas, can be said to be residing “with” each other or in occupation of one or other or both of the flats “together with” each other. It makes no difference how often they may visit each other and share each other’s company. I do not consider that the observations of Simon Brown J in Ex p. Ly and of Scott Baker J in Ex p. Surdonja, in both cases obiter, support Mr Colville’s submissions to the contrary. In Ex p. Ly Simon Brown J was considering the very different wording of section 16 of the 1977 Act. Furthermore, he was concerned with the category of applicant in what is now section 176(b) of the Act, described in statutory language (“who might reasonably be expected to reside with [the applicant])” which gave the housing authority an obvious latitude. In Ex p. Surdonja Scott Baker J expressed the view that accommodation might satisfy the requirements of section 176 of the Act if it comprised “separate rooms in the same hotel”. Such an arrangement, however, is quite different from occupation of separate self-contained residential units with no sharing of any living areas.

Camden’s analysis of Scott Baker J’s view in Surdonja was also wrong:

In his actual analysis, however, Scott Baker J expressed the conclusion of law (at page 691) that “the combined effect of sections 188 and 176 is that the accommodation provided for the applicant must be sufficient to accommodate his wife and family as well”. That was apparently expressed by him as a minimum legal requirement, and not merely as a facet of suitability on which the housing authority could form its own view.

While the pressures on Local Authorities in respect of provision of accommodation were recognised to be acute, the policy of Part VII was a matter for Parliament. In any event Camden had advanced no practical evidence at all as to the seriousness of the effects of the interpretation of s.176 at issue and Camden had in fact secured Ms S and her household accommodation for 5 years before the offer in the present case.

Appeal allowed.

Comment
So, as it apparently needed clarifying, the ‘together with any person who normally resides with him as a member of his family’ in s.176 is not a ‘suitability’ issue, on which the Local Authority is entitled to draw its own conclusions. It is a simple requirement for accommodation, which precedes any suitability issues. And two separate flats, even within the same building, will not count as a unit of accommodation for the purposes of s.176. Mind you, the meaning of ‘normally resides with’ was not in issue in this case, it being accepted that the father did normally reside with Ms S. Further cases on that definition can be expected…

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.

17 Comments

  1. Stephen O'Neill

    Clearly section 176 has nothing to do with suitability. My thoughts are more to do with the meaning of ‘normally expected to reside with’.

    I can readily accept that ‘normally expected to reside’ means that accommodation provided for the applicant must be sufficient to accommodate himself and those normally expected to reside with him. But I do not accept that it is the only natural meaning of section 176. It is common place to speak of ‘normally’ as ‘a general rule’ or ‘under normal conditions’. Thus a family can normally be expected to reside together even if for the time being no such accommodation exists. A temporary separation does not mean forever. If suitability on a temporary basis can be rather different from what is suitable on a permanent basis, it seems to me, that staging-post accommodation pending the discharge of the full section 193(2) duty does not necessarily mean that accommodation must be sufficient to accommodate the family at all times.

    This does not mean that a local housing authority are entitled to leave a family living apart indefinitely. Obviously, there would come a point where they could not continue to occupy accommodation and the council would have to act. But there is more to it than that. It does not follow that, because it has not yet been possible to find accommodation large enough for the whole family that the accommodation should not be described as such.

    The local housing authority is empowered by section 177(2) to have regard to “the general circumstances prevailing in relation to housing in the district”, so that theoretically, on the present understanding and application of the statute, a family who cannot live together for a while, in contradistinction to those who have no accommodation at all, could be expected to live a few hundred yards away by reference to the limited stock of housing available to an authority for re-housing purposes. Realistically, the authority may on occasion have to decide that an applicant’s present accommodation, however un-ideal, must suffice given the quality and quantity of the authority’s stock generally. That does not mean to say a family does not normally reside together, it is simply a fact that for the time being one has to make do.

    Reply
    • Rudy

      (@Stephen O’Neill) That would be right – but only if the word “normally” appeared somewhere else in the same sentence, namely “Accommodation shall normally be regarded as available for a person’s occupation …” – or some such. (Your old English teacher would be in tears). That’s why I must beg to differ, and why the CA surely has. S.177(2) is incapable of qualifying that principle.

      Reply
  2. Tyrer Roxburgh

    We had a similar situation which involved a section 202 review of accommodation provided by London Borough of Camden. Our client was a mother who had two sons, who had been placed in 2 self contained hostel rooms.

    We acknowledge that the there were suitability issues however we relied on Article 8 Right to family life. In that by placing our client and her family in 2 self contained properties this is an infringement of our client’s article 8 right.

    We submitted that it should be noted that by placing the client and her family in 2 self contained properties this would essentially being breaking up the family unit and therefore be in direct contravention of her article 8 right.

    We therefore submitted that the property was not suitable for our client to continue to remain and that the property should be reviewed on this basis. The end result being that the London Borough of Camden reviewed their decision and provided our client with alternative suitable accommodation at review stage.

    I am not saying it is the formula to winning the case but it may help.

    Reply
  3. Stephen O'Neill

    @Rudy -I didn’t feel the need to attend every English class I was invited to. When read on its own s.177 would be incapable of supporting the weight I attached to it but surely when read together with s.176, if accommodation is provided as a temporary expedient I see no reason why two units of accommodation, in the same building (or possibly two adjoining houses), could not be properly termed as accommodation while the local authority hunts for something else.

    @Tryer, separation of family members will normally constitute an interference with the right to respect for family life, although some interference may be justified, for example where larger accommodation is not available. Also surely it is the right to enjoy one’s family relationships without interference from the government. The ‘state’ did not break up the family, they were already homeless when the local authority became involved. Your argument would suggest a positive obligation to keep families together.

    Reply
  4. Paul

    Reviving the 176(a) HA 1996 argument, can a parent who was responsible for her daughter’s upkeep until she turns 18 be considered as a person who normally resides with that teenage adult to gain extra room in her daughter’s application for social housing?

    Reply
    • NL

      Paul, the question is is she someone who normally resides with the daughter as a member of her family. If she does, she does. But you appear to be confusing matters – ‘application for social housing’ sounds like Part 6, and s.176(a) is Part 7.

      If the daughter is under 18, she can’t be the tenant yet, of course. Someone has to be the trustee of the tenancy.

      Reply
  5. Paul

    Sorry that my initial query wasn’t that clear. She is now 18 and have applied for housing under Part 7. I take that sentence to mean (in relation to my case) that the daughter ‘normally reside with’ the mother pre her 18th birthday, not the other way round. Now that she is 18 and approached in her own right, and her mother wants to be part of her application, s176(b) would be more on her side (that is if we accept).

    Please correct me if my line of thinking is wrong.

    Reply
    • NL

      Paul, you’ll note that the site says we can’t advise on individual’s issues. That goes double when the person asking has a whole Local Authority legal department of their own to ask…

      But in an effort to spare some poor person having to do the review submissions…

      I’m struggling with your thought process here. You appear to be suggesting ‘reside with’ is a one way process, so that the daughter resides with her mother, but the mother doesn’t reside with the daughter. Exactly what do you think ‘reside with’ means that would allow this to be the case?

      The question is are they members of the same family who normally live as part of the same household. Whether the daughter is over 18 or not has nothing to do with it, or indeed s.176(a). Note Ms S and her father in this case.

      Reply
  6. Stephen O'Neill

    If the mother has made an application with the daughter; presumably the former has lost her accommodation but could be considered intentionally homeless, whereas the daughter might not? The question, it seems to me, is whether an application by the daughter can circumvent intentional homelessness if the mother is not the primary applicant? If the daughter is rehoused then so would the mother if s.176 applied to her.

    It’s not Birmingham again is it?

    Reply
    • NL

      Stephen – There were a few possible situations running through my head, but given the nature of Paul’s inquiry, I thought best not to dig further, or to explore the hypothetical possibilities.

      It isn’t a BCC IP address (I did check, I must confess).

      Reply
  7. Chris B

    Presumably the legal dept within whatever local authority Paul works will refer him to North Devon DC ex p Lewis [1981] 1 All E.R. 27, Harrow ex p Byrne [1997] EWHC Admin 197 and Camden ex p Hersi (2001) HLR 52. It is certainly hard to see how the daughter might have ‘acquiesced’ in whatever it was that the mother and/or father might have done that made them intentionally homeless (particularly if the daughter were under 18 at the time of the parent(s)’ acts or omissions) but my reading of ex p Hersi was that the Court of Appeal weren’t terribly keen on adult children being used as applicants to secure accommodation (or at least a second bite of the cherry) for the parents.

    Reply
    • NL

      Chris – this is why I didn’t want to dig further or indeed speculate about the situation underlying Paul’s questions. Given that he managed to develop an ‘interesting’ reading of ‘reside with’, I don’t think offering up brief interpretations of cases that may, or indeed may not, be relevant to the matter he is dealing with is going to help anyone.

      The situation you address is one possible one, but there are plenty of others…

      Reply
      • Chris B

        Well, it might help Paul, I suppose, if he goes off and reads the cases himself. Ultimately it will be up to him, if he is the decisionmaker, to judge whether there’s anything in those cases that might assist him in reaching a legally sound decision.

        On the matter of whether a child lives with the parent or vice versa I was reminded of something I saw on TV many years ago. I don’t know if you (or any of your readership) are sufficiently wizened and decrepit to remember the 1970s but there was once a TV sitcom called ‘Billy Liar’. In one episode Billy says to his boss, the undertaker Mr Shadrack, that he (Mr Shadrack) lives with his mother. To this Mr Shadrack testily replies “My mother lives with me.”

        Reply
        • NL

          Chris, I agree on reading the relevant cases, but we don’t know what the situation is and thus what cases are relevant.

  8. chief

    An appeal to the Supreme Court is to be heard by Hope, Walker, Hale, Kerr & Carnwath on 17 January 2013.

    Reply
  9. JS

    Court of Appeal decision overruled . With the very greatest of respect to the Supreme Court majority Lord Kerr’s dissenting judgment is absolutely compelling . Surely it is not the role of the Supreme Court to give a strained constructions to S176 to ease the pressures on very hard pressed London local authorities .

    Reply

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