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…