Orejudos v Royal Borough of Kensington & Chelsea [2003] EWCA Civ 1967

Case No B2/2003/1046[2003] EWCA Civ 1967
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(HIS HONOUR JUDGE MAYER)
Venue Royal Courts of JusticeDate Wednesday, 22nd October 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE CHADWICK
LADY JUSTICE ARDEN
Between
RUBEN OREJUDOSAppellant-v-
Between
THE ROYAL BOROUGH OF KENSINGTON & CHELSEARespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M RUSSELL (instructed by OLIVER FISHER SOLS, KENSINGTON , W8 5EH) appeared for APPELLANTMR W BEGLAN (instructed by LEGAL DEPARTMENT, LONDON W8 7NX) appeared for RespondentJ U D G M E N T

LADY JUSTICE ARDEN:

[1]This is an appeal, with the permission of Brooke LJ, by Ruben Orejudos against the order of Her Honour Judge Mayer sitting in the Barnet County Court, dated 24th April 2003, dismissing the appellant's appeal against a decision of the respondent, the Royal Borough of Kensington and Chelsea, to whom I shall refer to as "the authority", dated 1st October 2002.[2]The authority's decision was made under section 202 of the Housing Act 1996. Under section 204 of that Act an applicant who has requested a review under section 202 and who is dissatisfied with the decision on review may appeal to the County Court on any point of law arising from the decision. On that appeal the Court may make such order, confirming, quashing or varying the decision as it thinks fit.[3]The authority accepted that the appellant was a homeless person on 28th March 2001. Accordingly it accepted an obligation to him under section 193 of the Housing Act 1996. He lived initially at Central Park Hotel and later at 62 Willoughby Lane, Tottenham and then at the Cartwright Hotel. On each occasion he was required to sign an agreement which warned him that if he did not stay at the hotel or hostel every night his booking would be cancelled and which required him to discuss the reason for his absence in advance. The relevant part of the agreement was as follows:
"Charges for the hotel are paid by us on a nightly basis. If you do not stay at the hotel every night your brooking will be cancelled. If there is a reason why you cannot stay please contact either your Housing Advisor or the Temporary Accommodation Team to discuss this BEFORE you stay away from the hotel. Your charges are due from today and if you fail to pay the full amount each week your book willing be cancelled. It is a condition of your booking that you must sign at the hotel register each day. If you fail to do so your booking will be cancelled."
[4]In August 2002 the authority terminated the appellant's booking. He had been absent from his hotel or hostel on about 10 occasions on three of which an explanation, after the event, was accepted and he received two warnings including a final warning. On the last occasion, 8th August 2000, no reason was given in advance of his absence overnight and the authority cancelled his booking.[5]On 16th August 2002 the authority decided that the appellant had made himself intentionally homeless and that its obligation to provide him with accommodation under section 193 of the Housing Act 1996 had been discharged. The appellant requested a review of this decision under section 202 of the Housing Act 1996 but by letter dated 1st October 2002 the authority concluded that the appellant had made himself intentionally homeless.[6]In the court below the appellant took two points of law. First, he contended that the authority's requirement that a person who was owed a full section 193 duty to sleep each night in the accommodation provided was an intrusion into his private life and consequently in breach of Article 8 of the European Convention on Human Rights ("the Convention"). Second, he contended that the authority had not carried out a proper enquiry into his alleged absence on 8th August 2002.[7]The judge decided both points against the appellant. We are not concerned with the second point on this appeal. On the first point the judge concluded on the evidence that the condition was not unduly onerous. She held there was no breach of Article 8. Article 8 contemplated the right of private life in the context of the economic well-being of the country and the protection of the rights of others. She accepted that the purpose of Article 8 was to combat arbitrary interference with the state. The judge added it would not be right that the appellant could do as he pleases, "absent himself without any account, leaving the state to pick up the bill."[8]The evidence before the judge included a witness statement from Mr Waddington on 29th March 2003. In paragraphs 15 and 16 of his statement, Mr Waddington states:
"15. There are a number of reasons why agreement to this condition is sought from housing applicants. (i) The Council does not want to pay for accommodation that is not used. (ii) The Council needs to monitor use of the accommodation. If an applicant does not inform my Team in advance as to when he or she will be absent and their reasons, in case of an emergency at the hotel the applicant cannot be accounted for. (iii) The accommodation is provided because the applicant will have stated that he or she has no other accommodation available to them. If they are frequently or regularly away from the accommodation provided by the Council and have not given satisfactory reasons for doing so, the Council needs to knows where they have been staying and the nature of that accommodation because that is a relevant and necessary enquiry for the housing application. 16. The Council always gives consent if advance notice of a satisfactory reason is given to the Homelessness and Advice Team as to why an applicant needs to be absent and the period of time for which he/she will be absent, for example, if an applicant will be going into hospital."
[9]The issues on this appeal are accordingly whether the imposition of the term quoted in paragraph 2 of the judgment engaged Article 8 of the Convention, and if so, whether, Article 8(2) of the Convention is satisfied. Article 8 provides:
"RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[10]I now turn to the submissions on this appeal. For the appellant, Mr Martin Russell submits that the conditions in this case violate the appellant's rights under Article 8. The right to respect for private life includes the right to live as an ordinary citizen, without interference and the effect of the condition is to inhibit the appellant's freedom of action because he has to sleep each night in the accommodation provided.[11]As to Article 8(2) Mr Russell submits that the violation of the appellant's Article 8 right cannot be justified. The evidence did not merit a finding that the restrictions were not unduly onerous and therefore proportionate. The evidence did not match the assertions put forward by the authority to justify the restriction. In particular, there was no evidence to show the amount of any benefit which the authority obtained from the condition. The appellant belongings would still be in his room if he were absent overnight so the authority could not accommodate anyone else in his room. However, Mr Russell accepts that the authority would be making some contribution to the cost of accommodation even though the appellant had to pay a certain amount himself. Mr Russell submits that, even if the appellant is not physically present overnight, the accommodation is still being used because it will house the appellant's personal belongings and will be his only or principal home.[12]As regards the need to monitor people in a hotel in an emergency, Mr Russell submits that this does not justify the imposition of a condition of being there at unspecified hours any more than such condition would be merited in a commercial hotel. The requirement of reasons for absence is inconsistent with the resident's condition being imposed for safety reasons.[13]Mr Russell accepts that the authority has a legitimate interest in establishing whether the accommodation provided is the appellant's only or principal home but he submits that, if the authority has reason to believe that the appellant has other accommodation and has abandoned the accommodation provided by the authority, it can investigate whether the duty should be discharged and under section 193(6)(d). Apart from that, the housing application, on his submission, was closed by the assumption of a duty under section 193; there could no longer be any housing application then to look into. There is no objection to the requirement to sign the register provided that the register is reasonably accessible for that purpose.[14]Mr Russell submits that neither section 193 nor section 206 of the Housing Act 1996 permits the imposition of non-landlord tenant type conditions. He submits that the imposition of non landlord and tenant type conditions exacerbates the undesirability of long-term bed and breakfast accommodation emphasised in paragraph 11.8 of the Code of Guidance. Mr Russell further submits that there is no evidence that the authority made the appellant aware of policy of insurance in paragraph 16 of Mr Waddington's witness statement. Accordingly there was some confusion on the appellant's part over the application of the conditions.[15]Mr Wayne Beglan, for the respondent, submits that the judge was correct to conclude that there was no breach of Article 8, that the authority had power to impose conditions and that in any event Article 8(2) applies. He makes the following submissions. First, he submits that the conditions were operated reasonably - good reasons for absence were accepted both prospectively and retrospectively. The Court should assume that a reasonable approach will be taken to the operation of a term and that is in any event what the evidence demonstrates. There was no confusion on the appellant's part as to the possibility of permission being given. It was in any event plainly implicit in the agreement signed by the appellant.[16]As regards the legality of the condition the statutory scheme is silent as to the terms on which housing is to be offered. The term relating to occupation is related to the housing relationship between the authority and the applicant. It is open to the authority to impose terms such as terms about not causing a nuisance. That approach is in accordance with the law, with the statutory powers provided to authorities including but not limited to section 111 of the Local Government Act 1972, unless it offends against the duty of providing suitable accommodation or some relevant requirement.[17]As respects Article 8, Mr Beglan submits that the word "respect" makes it clear that not all acts or omissions of a public authority which have an impact on the exercise of the protected interest would constitute an interference with Article 8 rights. The circumstances of the particular case will be critical as to whether an interference has occurred. The conditions have to be seen in the context of bed and breakfast accommodation provided by the local authority on the basis of a daily charge. Thus, for example, in Harrow LBC v Qazi [2003] 3 WLR 792 both Lord Millett and Lord Scott were of the view that the right to respect for a home under Article 8 was not ordinarily at least violated by the enforcement of the terms of the tenancy on which it was enjoyed.[18]Mr Beglan submits that the conditions satisfied the requirements for proportionality. Indeed the appellant has not suggested any better system. Under the conditions the appellant could have obtained permission to be out overnight if he gave a satisfactory reason for absence. The information required was limited. A limited use was made of that information, and the information was recorded with the appellant's agreement and it was not secretive in any sense. In addition, the appellant had to sign the register each day. The inference was not arbitrary. The conditions were necessary in the interest of the economic well-being of the country and the protection of rights and freedoms of other applicants for housing assistance and contributors to the funds to provide temporary accommodation. The potential loss to the authority from unoccupied accommodation is obvious. The authority's concern for proper safety, concern for safety is a proper concern since the authority has to be able to account for persons it has placed in accommodation in emergency situations. As respects monitoring the maintenance of the register is the most expedient means of checking that individuals who have declared themselves to be homeless are as a matter of routine using the accommodation provided to them. If they are not using it, then further investigation may well be justified either under section 193(6)(d) or on the basis of the application for housing was fraudulent. An application for housing is not closed for all purposes once the accommodation decides that a full duty is owed under section 193.[19]I now turn to my conclusions. Article 8 has many aspects. It is one of the most open-textured of tbe provisions in the Convention. The European Court of Human Rights has recently made the following observations about its scope: "As the Court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects the right to personal development, the right to establish and respect relationships with other human beings and the outside world." (Pretty v United Kingdom [2002] 35 EHRR 1).[20]The aspect of Article 8 on which the appellant relies in this case is his right to private life. At a very general level this covers all aspects of a person's physical identity and thus freedom to live life as he or she chooses. But in a democratic society, subject to the rule of law, there are inevitably some inherent restrictions on private life. Thus not every act which adversely affects a person's ability to live his life as he or she chooses affects a person's physical integrity or infringes Article 8. Thus, the European Court of Human Rights said, in Bensaid v United Kingdom "not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect for private life guaranteed by Article 8."[21]There is necessarily an interface between the private space which a person enjoys and the public sphere. There is a point at which the private space meets the area which must properly be termed public. A person who is homeless is entitled to the protection of his private space as much as anyone else. But the question is whether or not the terms on which he is provided with accommodation by a public authority are within his private sphere. Certainly if he were taking accommodation from a private landlord the state would not be involved except to the extent of regulation-ist applying to such transactions generally. However, when a homeless person is taking accommodation from a public authority, the public has an interest in the terms on which he is provided with accommodation because of the number of other homeless persons who are required to be accommodated and because cost of providing accommodation has to be borne by the public purse. In those circumstances, the public sphere must necessarily intrude upon the ability of a person who is being accommodated to live exactly as they please.[22]I note that in DG v Ireland [2002] 35 EHRR 33 one of the bases on which the European Court of Human Rights considered that even the deprivation of liberty during lawful detention, being a normal restriction consequent on prison life, was not in violation of Article 8 was because it did not interfere with the private life for the purpose of Article 8(1).[23]Accordingly, in my judgment, the issue comes down to the question as to whether the conditions imposed by the authority are an ordinary and necessary part of providing accommodation. If they were, the appellant cannot complain that his right to private life was infringed. As I see it, the conditions with which we are concerned in this case, which were not that the appellant should sleep in his room that he was allocated every night but in essence that he should provide a satisfactory reason if he decided not to do so, or had in the event not done so. Accordingly, the appellant's freedom to sleep elsewhere was not removed, only qualified.[24]The reason why the authority imposed these conditions is clear. It paid for accommodation on a daily basis. It therefore needed to know whether the accommodation was being occupied so it could control its costs. I agree with Mr Beglan's submission that it was obvious that some cost was involved which could be saved if the appellant chose not to occupy the accommodation even on a temporary basis: the authority could cancel the booking or negotiate a reduced charge and it could reinstate it as it did when it was necessary to do so.[25]Mr Russell argues that the condition was not a landlord and tenant type condition. Such a condition would not be imposed where there was a tenancy or permanent accommodation was provided. I do not accept this argument. The question whether the condition was ordinary and necessarily imposed has to be examined against the fact that the authority was providing bed and breakfast accommodation that it was entitled to provide. Because of the charging structure for that accommodation the condition was necessarily the type of condition which the authority could lawfully and reasonably impose. It arose directly out of the type of accommodation which the authority was providing and out of the relationship between the appellant and the authority.[26]Mr Russell argues that there was some confusion in the appellant's mind as to the nature of the condition. That argument was not pressed. It is not, as I see it, made out on the evidence to which we have been referred.[27]In the circumstances it is not necessary, in my judgment, to consider the application of Article 8(2). Had it been necessary to do so, I would have accepted the argument of Mr Beglan on the evidence before the court. The reasons which Mr Waddington gives, particularly the argument based on costs and the need to consider whether the accommodation is truly needed his first and third reasons demonstrate that the conditions were proportionate in relation to the aim of enabling the authority to discharge its statutory obligations to provide accommodation to homeless persons. It is well-known that there is considerable pressure on the accommodation that a local authority can provide, especially in the London area, that there is not enough such accommodation for everyone who needs it. The requirement that the conditions be in accordance with the law and serve a legitimate aim are also, in my judgment, satisfied.[28]The final point concerns the register which the appellant was required to sign. This did not form a separate ground of appeal. In those circumstances I need not deal with it. Accordingly I would dismiss the appeal.

LORD JUSTICE CHADWICK: I agree. The appeal is therefore dismissed.

LORD JUSTICE AULD: I also agree.

[31]MR BEGLAN: In the light of your Lordships' judgment, I ask for my costs on the usual basis.

LORD JUSTICE AULD: Very well, the appeal will be dismissed with costs. Thank you both for your assistance.

[33]MR RUSSELL: The appellant has been publicly funded - I said before lunch that the appellant is publicly funded, I would ask for an order for the assessment of his costs.

LORD JUSTICE AULD: The ordinarily order under section 11 of the 1999 Act. Very well.