Sharp v London Borough of Brent [2003] EWCA Civ 779

Case No B2/2003/0182[2003] EWCA Civ 779
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE LATHAM)
Venue Royal Courts of JusticeDate Monday, 14 April 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE SIMON BROWN
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
Between
NATALIE SHARPRespondent-v-
Between
LONDON BOROUGH OF BRENTAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR R BHOSE (instructed by KSB Law, London WC2A 3UB) appeared for AppellantMR A MOORE (instructed by J D Spicer & Co, London NW6 4JD) appeared for Respondent
J U D G M E N T(As Approved by the Court)
Crown copyright©

LORD JUSTICE LAWS:

[1]This is an appeal with permission granted by Aldous LJ on 25 February 2003 against a judgment of His Honour Judge Latham given in Willesden County Court on 5 November 2002. The judge then allowed the respondent claimant's appeal brought under section 204 of the Housing Act 1996 against the review decision of the appellant defendant, the London Borough of Brent, to the effect that the council's earlier offer to the respondent of a flat at 29 Joules House, Christchurch Avenue, NW6 constituted an offer of "suitable accommodation" for the purposes of Part VII of the 1996 Act. As is well known, Part VII imposes obligations on local authorities towards homeless persons as that expression is defined in the Act. I shall refer to the material statutory provisions in due course.[2]As may already be apparent, this is a second appeal within the meaning of Part 52.13 of the Civil Procedure Rules so that permission to appeal fell to be granted only if the appeal would raise an important point of principle or practice or there was some other compelling reason for the appeal to be heard. The case raises questions as to the relationship between Parts VI and VII of the Act of 1996 and also as to the impact of Article 8 of the European Convention on Human Rights upon the decision-making process under Part VII. With great respect Aldous LJ was plainly right to grant permission.[3]In order to expose the issues falling for determination it is necessary to give some account of the facts. The respondent is a lady of some 61 years of age. Her parents, then after her father's death in 1990 her mother, lived in a flat at 63 Pharamond in Willesden Lane, NW2 as tenants of the appellant council. Pharamond is a block of flats forming part of the council's housing stock. The respondent's mother died in November 1999. At some point the respondent had moved into the flat at 63 Pharamond. On 10 February 2000 she applied to the council to succeed her mother as tenant of the flat under provisions contained in the Housing Act 1985 and the council's appropriate policy made under it. It is not necessary to travel into the detail of those. Her claim depended on the length of time for which she had occupied the flat with her mother. It had to be not less than one year. She stated that she had lived at 63 Pharamond since October 1998 and therefore for just over a year before her mother's death. The council did not accept this. Indeed they concluded that it was a lie, concocted to support what was really a baseless claim to be allowed to stay on as tenant of 63 Pharamond. Although as a matter of fact the respondent does not accept that she attempted to deceive the council, it is accepted on her behalf that the council was entitled to reach that conclusion and the court cannot go behind it.[4]At length, on 16 August 2000 the council obtained an order for possession of 63 Pharamond. The order was made by consent. The respondent was represented by a solicitor at the hearing in the county court. The order has effectively been stayed pending the outcome of these proceedings and the respondent presently remains at 63 Pharamond. However, being faced with an order to evict her she applied later in August 2000 to the council for housing to be provided to her as a homeless person. On 26 September 2000 the council wrote to her accepting that she fulfilled the statutory criteria for assistance; that is to say, that she was homeless and in priority need, and that her homelessness was unintentional. Accordingly the council's duty under section 193 of the Act of 1996 was engaged.[5]It is convenient at this stage to set out the material provisions. First, section 193 of the Housing Act 1996:
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. .... .... .... (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. (3) The authority are subject to the duty under this section for a period of two years ('the minimum period'), subject to the following provisions of this section. After the end of that period the authority may continue to secure that accommodation is available for occupation by the applicant, but are not obliged to do so (see section 194). .... .... .... (5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section. (6) The local housing authority shall cease to be subject to the duty under this section if the applicant- .... .... .... (c) accepts an offer of accommodation under Part VI (allocation of housing). .... .... .... (7) The local housing authority shall also cease to be subject to the duty under this section if- (a) the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI, and (b) the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal."
Mr Moore this morning also referred specifically to section 206 of the Act of 1996 which like section 193 is within Part VII:
"(1) A local housing authority may discharge their housing functions under this Part only in the following ways- (a) by securing that suitable accommodation provided by them is available"
. Thereafter in October 2000 the council offered the respondent accommodation at an address in Harlesden. She declined to accept it and the offer was withdrawn. A further offer of premises in Cricklewood suffered the same fate. The council reconsidered the respondent's application to succeed her mother as tenant of 63 Pharamond, determined again to reject it and made an offer of accommodation in fulfilment or purported fulfilment of their duty under section 193 of the flat at 29 Joules House which like Pharamond was part of their housing stock. This was first done by letter of 24 January 2001 which has been provided to us this morning. It is not necessary however to read it: it was superseded by later correspondence. The council maintained its position by solicitor's letter of 29 March 2001. That letter offered the respondent an opportunity to make further representations.[6]At length the council wrote a further formal later dated 6 August 2001. Before referring to the council's reasoning in this letter it is convenient to make some brief observations about the different functions conferred on local housing authorities by Parts VI and VII of the Housing Act 1996 respectively. As I have indicated, Part VII is concerned with the council's specific responsibilities to homeless persons as there defined. Part VI is cross-headed "Allocation of housing accommodation" and is concerned with councils' general responsibilities in relation to the allocation of council housing to individuals. Features of Part VI include, significantly, section 167:
"(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating housing accommodation .... (2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to- (a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions, (b) people occupying housing accommodation which is temporary or occupied on insecure terms, (c) families with dependent children, (d) households consisting of or including someone who is expecting a child, (e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and (f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation. The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future."
And it is provided that the local authority is to, in effect, distribute its housing resources in accordance with the allocation scheme.[7]Now I may return to the council's letter of 6 August 2001. It said:
"The Council has fully reconsidered Ms Sharpe's request to remain at 63 Pharamond whether in discharge of the Council's minimum 2 year duty under Part VII of the Housing Act 1996 ('the Act'), or as a 'permanent' allocation under Part VI of the Act. Having given the matter very great thought, and having re-considered all of the many representations made by Ms Sharpe, her doctors, and other advocates on your Client's behalf, we regret to inform you that the Council has upheld its decision not to discharge duty under Part VII by allowing Ms Sharpe to remain in the premises any longer, nor to offering your Client a secure tenancy of the premises as an allocation under Part VI of the Act. In other words, the Council is standing by the decision communicated to [you] by solicitors letter of 24.1.01, that it intends to recover possession of the premises."
Then on page 2 of the letter under "Procedural History" I read just two short paragraphs:
"Ms Sharpe has had a good deal of assistance in presenting her case. By letter dated 24.01.01 the Council, through its solicitors, notified your Client's former Solicitors, Williams & Co of its decision that it was going ahead to evict Ms Sharpe. Williams & Co made further representations by letter of 2.2.01, alleging that Ms Sharpe's medical condition had deteriorated. By letter of 13.2.01 Williams & Co made further, detailed, representations. They stated, in particular, that Ms Sharpe was due to see Dr Mallett 'again very shortly for a full and detailed re-assessment'. They implored the Council to review its decision and assured it that further medical evidence was to be submitted. We replied on 29.3.01, maintaining the Council's decision not to 'discharge' Part VI or VII duty by allowing Ms Sharpe to remain in the premises. However, within that letter the Council stated that, with a view to concluding the whole matter, it was willing to afford Ms Sharpe the opportunity to make further representations, including the submission of medical evidence .... The Council has considered that there are 2 discrete (but linked) issues for it to consider - (i) entitlement for consideration under the Housing Review 2000 policy on non-statutory 'successions', and (ii) discharge of the Council's obligations by the offer of a tenancy of these premises, or by an offer elsewhere. .... .... .... Qualification under the 'second succession' policy The Council sees no reason to depart from, and affirms its decision of 24.1.01 .... .... .... .... The Council, we regret to say, simply does not believe Ms Sharpe's assertions. Accordingly, no question arises as to whether Ms Sharpe might qualify under the Housing Review Policy 2000 policy on non-statutory concessions. In any case such consideration would be discretionary. Discharge by offering a tenancy of the premises It is important to stress that Ms Sharpe had no right to remain in the premises [that is of course 63 Pharamond], after her mother's death. Ms Sharpe in fact recognised this by consenting to an immediate order for possession on 16.8.00. Ms Sharpe's request to be allowed to remain at premises, has been considered. The Council has, and operates, an allocations policy which determines the allocation of housing, for both current tenants, and homeless applicants. The application of the policy to all applicants ensures fair and equal treatment to applicants and facilitates the Council's discharge of duties. It has never been a practice or procedure of the Council that an applicant for housing had been able to 'choose' the property which is to be allocated to them. Nor, in Ms Sharpe's case, is the Council satisfied that there is anything in the medical or other evidence to suggest that this is an exceptional case that might begin to warrant the Council adopting such a course (which if applied to others could lead to chaos, bad-feeling and allegations of 'preferential' treatment). It continues to conclude that there is nothing which compels it to reach a decision that Ms Sharpe must not, on any account, be required to move to other, suitable permanent accommodation. The Council's views on the medical information has been set out in its previous letters. In fact there is a further very good reason not a adopt such a course in this case. The Council has concluded (as we state above) that Ms Sharpe sought to mislead it as to the 'second' succession. Given this conclusion, it would be wholly invidious if Ms Sharpe were to secure for herself (by the Part VI/VII route) premises she had sought wrongfully to secure (through the 'second' succession route). The Council's discharge of its housing functions, and the operation of its policies, is dependent upon those applying for assistance being truthful to it, and correctly recording their circumstances. We regret the Council does not feel that Ms Sharpe has done that. .... .... .... Accordingly, the Council considers (if it in law is bound to reason in this way) that to require you to move is necessary to preserve the integrity of the allocations scheme and of truthfulness in the making of applications for housing assistance (whether by succession or under Part VII). It ensures equality of treatment and fairness amongst all those to whom the Council owes duties. It is a necessary and proportionate decision to take. Offer of 29 Joules House The Council further affirms that Ms Sharpe be offered a secure tenancy of 29 Joules House, as an allocation under Part VI of the Act. The Council considers that 29 Joules House is suitable for Ms Sharpe's needs."
[8]By force of section 202 of the 1996 Act the respondent enjoyed a right to have this decision reviewed internally by the council. She duly exercised it, primarily on the basis that if she had to leave 63 Pharamond her mental health would be adversely affected and on that basis 29 Joules House was not suitable for her. Her case was rejected on review on 26 November 2001. The letter of that date records her reliance to support the view that the offer of 29 Joules House was not reasonable on a report from a clinical psychologist, Mr Kirkby, and also the fact that the council had instructed a consultant psychiatrist, Dr Latcham, who provided a report. Dr Latcham expressed the view in the light of his findings as to the respondent's medical condition that the offer of 29 Joules House was reasonable and the respondent should be able to accept it. Accordingly the Rehousing Manager who conducted this review upheld the original decision to offer 29 Joules House.[9]Against that review decision the respondent enjoyed a statutory right of appeal to the county court under section 204 of the 1996 Act, whose material provisions it is convenient to set out now:
"(1) If an applicant who has requested a review under section 202- (a) is dissatisfied with the decision on the review. .... .... .... he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision." .... .... .... (3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."
The respondent proceeded to exercise her right of appeal against the review decision of 26 November 2001. I should make it clear that this was not the appeal which came before His Honour Judge Latham, and so ultimately to this court: the appeal against the decision of 26 November 2001 was adjourned upon the council undertaking to carry out a further review. The further review culminated in a decision letter of 26 July 2002 and it was against this further review decision that the appeal to Judge Latham was brought.[10]The further review of July 2002 was conducted by Mr Colin Moone, the council's Assistant Director of Housing (Needs and Private Sector), who had had no prior involvement in the case. He was later to provide a statement on the council's behalf for the purposes of the appeal before His Honour Judge Latham. In his decision letter of 26 July 2002 Mr Moone noted that the respondent had made no "sustained representations" as to why 29 Joules House was not suitable save that it was not 63 Pharamond and also because of a fear of crime which she asserted. Mr Moone dealt with the issue of crime, concluding that there was nothing in that respect which marked out Joules House, and so he concluded that 29 Joules House was suitable for the purposes of the council's duty under Part VII of the 1996 Act.[11]However, Mr Moone did not leave the matter there. The letter of 26 July 2002 continued:
"Having concluded that 29 Joules House would be suitable for you, ordinarily that would be the end of the matter. However, in your case I have to consider whether all your circumstances taken together (including medical & social aspects) lead me to the conclusion that -- despite my conclusions about 29 Joules House -- the Council could only really discharge its statutory duty to you by letting you remain at 63 Pharamond. If that was my conclusion then, despite my clear conclusion on the suitability of 29 Joules House, I might have to re-assess the suitability of the discharge. The issue of allowing you to remain (or be allocated this property) has been well ventilated over the last 18 months or so, and I am conscious that this is a review against the decision to offer 29 Joules House, not some sort of challenge to the decision not to allow you to stay at 63 Pharamond. That decision was taken a long time ago by the Council -- I refer you to the letter of 6 August 2001 in particular. I do not repeat its contents, and I agree with the reasoning about non-statutory successions. I also agree with the sentiments expressed about the importance of applying the Council's policies fairly to all. It seems to me (as it did to my colleagues on that occasion) that allowing someone the right to remain in Council accommodation where that right does not exist, unless through some special arrangement, would contravene our policies as well as legislation. It would require a compelling case .... "
Then, missing a paragraph, Mr Moone proceeded to address the medical evidence which was before him in writing. This is what he said:
".... on the issue I have to decide, I do not see that Dr Latcham's opinion has in any material way softened. His opinion is that the traumas you have suffered in your life are the same as anyone in your position would experience, and that whilst it would be distressing for you to leave 63 Pharamond, this distress would then subside. His view is that a large component of your current distress is due to uncertainty as to the future. Nothing about his report leads me to conclude that there will be dire consequences from your moving from 63 Pharamond. As I would expect, given Mr Kirkby's previous opinion, his current opinion differs. However, Mr Kirkby does accept (as Dr Latcham states) that uncertainty is a source of anxiety, and that it operates in your case. Whilst he gives a number of reasons why other factors significantly outweigh that of uncertainty, I am unconvinced - particularly in the light of Dr Latcham's report. For instance, for all that is said about 63 Pharamond having been your mother's home for a number of years, it has not been your home for very long at all (only since October 1998, even on your own account). Further, your concern as to crime at 29 Joules House has not been expressed in the past as a reason for not wanting to live there - which I would have expected had it been a substantial reason for not accepting that offer, and wanting to stay at Pharamond. I have come to a clear conclusion that I prefer and find convincing the professional opinion of Dr Latcham, over that of Dr Kirkby and other health professionals who have supported your case over the years. It is clear to me, in circumstances such as these, that there will always be a certain amount of distress, anxiety etc in requiring someone to move - particularly where there is a degree of emotional attachment to the property. However, as indicated in Dr Latcham's report, this is an inevitable consequence of the circumstances and it is likely that this will dissipate over time. To suggest that something more serious could arise is, in my opinion, mere speculation."
Thereafter Mr Moone shortly addressed a discrete issue concerning the floor level of 63 Pharamond which, being at the sixth floor, was higher than recommended by the district's medical officer. The letter ended with Mr Moone's conclusion that the offer of 29 Joules House was reasonable and suitable to the respondent's needs and the council's duty to the respondent under section 193 was discharged upon her refusal to accept it.[12]This was the decision appealed to His Honour Judge Latham. As is plain from the face of section 204 the appeal is on law only: the jurisdiction has been likened to a statutory form of judicial review. I have to say that I have found His Honour Judge Latham's reasoning allowing the respondent's appeal to be discursive and opaque and in places difficult to follow. Some of the matters raised in the grounds of appeal have fallen away, not least the suggestion that it was irrational of the council to prefer the opinion of Dr Latcham over that of Mr Kirkby.[13]The first conclusion arrived at by the judge of which the council complained was that Mr Moone's decision was irrational and constituted a misdirection in law. The judge said this (transcript page 19 line 7):
"It appears to me that (in the way that Mr Moore has submitted) the council, in the review decision of Mr Moone that is attacked in his adopting that earlier thought process [that must be a reference, I think, to the letter of 6 August 2001] confused the issues about statutory succession to the tenancy that Miss Sharp lost on, with issues about suitability of accommodation and allocation of accommodation. When Mr Moone says that 'this would contravene our policies well as legislation', there is a not a mandatory basis for rejecting Miss Sharp's case. In so far as it is put on policy, both as to the integrity of the council's housing priority scheme and what appears to be a policy of punishing those who include dishonest grounds in their application, Mr Moore is right that Mr Moone lapsed into misdirecting himself on irrationality for the purposes of issues in this appeal."
The reference here is to the following part of Mr Moone's decision letter of 26 July 2002 which is very short. I will re-read it for convenience:
"That decision was taken a long time ago by the Council - I refer you to the letter of 6 August 2001 in particular. I do not repeat its contents, and I agree with the reasoning about non-statutory successions. I also agree with the sentiments expressed about the importance of applying the Council's policies fairly to all. It seems to me (as it did to my colleagues on that occasion) that allowing someone the right to remain in Council accommodation where that right does not exist, unless through some special arrangement, would contravene our policies as well as legislation."
[14]As I understand it, the judge seems to have accepted these points:(1) this passage in the review letter of 26 July 2002 betrays a confusion between (a) the statutory scheme under the Housing Act 1985 and the council's policy relating to a person's claim to succeed to the tenancy over another, (b) Part VI of the Housing Act 1996 and (c) Part VII of the Housing Act 1996; and(2) Mr Moone should have treated the council's earlier finding that the respondent had sought to lie her way into the succession to her mother's tenancy as legally irrelevant to the matters before him.[15]I have to say that I think the judge has allowed himself to be confused. The passage in Mr Moone's letter is admittedly short of detailed reference to statute or policy and that is perhaps a shortcoming. But in his statement, which was before the learned judge, he makes crystal clear what he had in mind:
"7. In that passage of the decision letter I was simply summarising and recording the history of the decisions in which the Council had decided the Appellant was not to be allowed to remain at 63 Pharamond. .... The Council's 'policies' I was referring to was the Council's 'second succession' policy, and the 'legislation' was those parts of Part IV of the Housing Act 1985 which provided that there was no right to more than one statutory succession. 8. It was common ground that the Appellant had no entitlement to succeed under Part IV Housing Act 1985, and that whilst she had claimed entitlement under the policy, the Council had decided against her in decisions of 24 January 2001 and 6 August 2001 .... 9. All that I was suggesting in [the] criticised passage is that given there was no entitlement to a statutory succession, and given that the Council had already disbelieved the Appellant's assertions as to her residence at 63 Pharamond so that 'no question' arose as to whether she might qualify under the second succession policy, it would require a compelling factual case before the Council was in a position to conclude that the only property which it could lawfully offer to her in discharge of its duties under the Housing Act 1996, was 63 Pharamond."
[16]This explanation seems to me to be completely unexceptionable. There was no confusion in Mr Moone's mind about statute or policy and the background, including the respondent's deception, justified the view that it would require a compelling case to show that the council's Part VII duty could only be lawfully discharged by letting the respondent stay at 63 Pharamond - not least, I would add, given that the council had already concluded that 29 Joules House was itself suitable for the respondent's needs. I consider that the judge was in error on this part of the case and there is nothing on the face of it that properly undermines Mr Moone's reasoning in that letter of 26 July.[17]The next part of the judgment which I must address is the judge's reference to Article 8 of the European Convention (transcript page 20 line 23):
"I accept that Miss Sharp has article 8 of the European Convention on Human Rights protection at 63 Pharamond as her home, as is conceded by Mr Findlay, counsel for the local authority. I accept Mr Moore's point made in his skeleton argument that on the European Human Rights Convention issues in this case the burden lies on the local authority to justify their decision, and the local authority and Mr Bhose are wrong if they try to throw the onus over on to Miss Sharp in establishing European Human Rights Convention protection issues. That point is made in paragraph 18.0 at page 13 of Mr Moore's skeleton argument."
[18]Paragraph 18 of counsel's skeleton argument in the court below in fact contains these three propositions which I will summarise very shortly:(1) it would constitute an interference with the respondent's right for respect to her home under Article 8 to require her to move out from 63 Pharamond from the offer being made at 29 Joules House;(2) such an interference could only be justified if the council were able to demonstrate that it was within Article 8(2) "necessary in a democratic society" to achieve one of the legitimate aims listed in subparagraph (2), such as the right to the protections and freedoms of others; and(3) the council could not demonstrate that. Accordingly it was said that their decision amounted to a violation of Article 8.[19]It is not clear on the face it of it whether the judge intended to accept all three propositions. I think we must assume that he did. For my part I would not accept the submission made for the appellant in Mr Findlay's skeleton argument of 18 November 2002 at paragraph 37 that Article 8 was entirely irrelevant to the issues before the judge. The argument is that while Article 8 would have been relevant to the decision to evict the respondent had the Human Rights Act been enforced at the material time, which it was not, it is not relevant to the question whether 29 Joules House is suitable accommodation. It seems to me that 63 Pharamond was, and was at the time of all of the decisions in this case (including that of the learned judge's below) the respondent's home for the purposes of Article 8. The learning shows that the Convention attributes an autonomous sense to the word "home". In effect, to require the respondent to leave that home, albeit with an offer of accommodation in a new one (although in a place to which she does not wish to go) on the face of it constitutes an interference with her right to a private life under Article 8(1).[20]However, there are a number of significant considerations when one comes to consider Article 8(2). First, the Strasbourg court has held that in an Article 8 case relating to a person's home it is important to have in mind the question whether the home in issue was lawfully established or not. In Chapman v United Kingdom (2001) 33 ECHR 18, which concerned a refusal of planning permission to a gipsy with a desire to station a mobile home on a site he had acquired, the court said this at paragraph 102:
"When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established lawfully or unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong."
Moreover, it is plain -- see Chapman paragraph 99 -- that Article 8 does not in terms provide a right to a home.[21]The second consideration is this. There is authority of this court to the effect that, at least in the ordinary way, the balance of interests arising under Article 8(2) in the context of local authorities' housing responsibilities under the 1996 Act has been struck by the legislation itself: see my judgment, agreed to by Thorpe and Kay LJJ in Sheffield City Council v Smart [2002] HLR 639 at paragraph 39. I do not accept Mr Moore's submission made this morning that this is an unusual or exceptional case in which it was the council's duty to proceed on what has been called a micro rather than a macro approach; that is, in effect, that the respondent's personal wishes should prevail over the council's choices as to the proper administration of its housing policies. In all these circumstances, in fact, like those of the present case, there is not so to speak a great deal of room for manoeuvre for the court in complying with its duty to uphold Convention rights.[22]I shall consider, albeit briefly, whether the decision to maintain the respondent's eviction from 63 Pharamond and to offer 29 Joules House was "necessary in a democratic society for the protection of the rights and freedoms of others". I have already read the relevant extracts of the decision letters of 6 August 2001 and 26 July 2002. The respondent had no claim to remain at 63 Pharamond under the succession policy and the 1985 Act which (on the council's lawful view of the evidence) she had deceitfully attempted to invoke. She had no claim to be accommodated at 63 Pharamond, as opposed to any other premises, either under Part VI or Part VII of the 1996 Act, although this engages issues under the last part of the judge's reasoning which I will consider directly. The respondent in my view has at the very best a marginal complaint of interference with her Article 8 right. The council's decision on the merits not to allow her to remain at 63 Pharamond as an exceptional case was in my judgment well justified for the preservation of a fair and equitable housing policy as between one possible claimant and another, whether viewed under Part VI or VII of the 1996 Act and justified therefore "for the protection of the rights and freedoms of others". It seems to me that we should not interfere with the decision. There must be a relatively wide margin of discretion afforded to local authorities in circumstances like those pertaining here. In relation to Article 8, therefore, I conclude that the judge below also fell into error.[23]The last part of the judge's reasoning which I need address is set out on page 21 of the transcript, first at line 5:
"I accept Mr Moore's submissions that the statutory framework means that, in deciding to house Miss Sharp out of their own housing stock, the case reverts to or (as Mr Moore submits) overlaps into allocation criteria issues and Part VI and VI of the Housing Act 1996 in that sense are blended together at that point."
Then I read this passage on the same page at line 21:
"I have to consider whether there was sufficient material available before Mr Moone to resolve allocation issues: for example, for an understanding of the points priority scheme and the points that Miss Sharp had, that material is not material [before me] in the bundle. There is no sufficient material available as to what the pool of available one-bedroom flats were for allocation at the time that Miss Sharp was allocated the flat at 29 Joules House, which I think must be taken to include 63 Pharamond for that purpose. That is clearly very important in relation to whether I can decide the issues in this case myself or whether the case must be sent back for another section 202 review."
[24]The notion that on the facts of this case Parts VI and VII of the 1996 Act are "blended together", and that the judge ought to have been considering the application of the council's allocation policy and their points priority scheme, discloses what I am driven to describe as a serious misconception on the judge's part of the statutory structure. I did not understand Mr Moore to support the judge's reasoning in this part of the judgment, at least not in its entirety. It is true the section 193 duty, falling of course within Part VII, may be discharged by an offer of accommodation within the council's allocation scheme under Part VI: see section 193(6)(c), which I have read. It is also true that that was done in this case in relation to the offer of 29 Joules House: see for example the last page of the letter of 6 August 2001. None of this, however, can legitimate a view to the effect that deciding under section 204 whether a council's duty under section 193 has been lawfully done, the county court is entitled or obliged to enter into questions whether the Part VI powers as such might have been exercised differently. And the court acting under section 204 in my judgment is certainly not concerned with whether the granted accommodation be less suitable than Part VII accommodation which might be more suitable for the appellant. I would refer to the decision of Dyson J (as he then was) in ex parte Sacupima 33 HLR 1 paragraph 13.[25]It follows in my judgment that the judge in this case was not properly concerned to evaluate any decision of the council so far as it fell within Part VI. That is not only because Parts VI and VII involve separate duties and functions. It is also because the judge had no jurisdiction to go into Part VII matters.

(f) :

"any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e)."
The pronoun "him" here refers of course to the claimant for housing, here the respondent. The only relevant provision within paragraph (b) or (e) there referred to is section 193. The authority's duty under section 193 is to offer accommodation which they consider suitable. It is only their judgment on that question that was subject to the appeal on law to His Honour Judge Latham.[26]In my judgment, for all the reasons I have given, the challenge to the council's decision in this case had no foundation in law. The appeal is good and for my part I would allow it.

LORD JUSTICE LONGMORE: I agree.

LORD JUSTICE SIMON BROWN: I too would allow this appeal. The respondent's central argument is that the only property which the appellant local authority can properly offer her as suitable permanent accommodation under Part VII of the 1996 Act is 63 Pharamond, at any rate once they had decided to discharge their Part VII duty by providing her with housing under Part VI of the Act.

[29]There are to my mind two fatal flaws in this argument. First, the respondent's entitlement to any offer at all under Part VII only arises assuming she is already homeless or is imminently to become so. Her entitlement therefore necessarily postulates that she cannot lawfully continue to occupy her present accommodation at 63 Pharamond. Secondly, her only entitlement under Part VII is to suitable accommodation. It is not an entitlement to be housed in any particular property. The right to a review under section 202 and the subsequent appeal to a county court judge under section 204 are likewise confined to that issue, the suitability of the accommodation offered, not the local authority's failure to offer some other accommodation.[30]As to the respondent's contended-for Article 8 rights, my own view is that no such rights attach to the question raised in those proceedings, the suitability of 29 Joules House; rather they would arise in regard to the discrete question of the appellant council's entitlement to recover possession of 63 Pharamond, theoretically a continuing question.[31]Unlike Lord Justice Laws, therefore, I am disposed to accept the appellant's skeleton argument in that regard. But, that objection aside, I certainly agree with Lord Justice Laws that the local authority are in any event entitled to interfere with the respondent's Article 8 rights by recovering possession of 63 Pharamond, having regard to her dishonesty in earlier asserting rights to succeed to her mother's tenancy of that property. The interference is justified by the local authority's proper interest in the control of their housing functions.[32]In the result, the appeal succeeds and the order below must be set aside.

ORDER

Appeal allowed and the order below be set aside. The costs of the appeal be paid by the respondent under section 11(1) of the Access to Justice Act 1999, the respondent's contribution being assessed as nil. The costs below after 26 July 2002 be paid by the respondent. Detailed assessment of the respondent's costs. Execution of the possession warrant stayed for 21 days. Permission to appeal to the House of Lords refused. (Order not part of approved judgment)