Higgs v Brighton and Hove City Council [2003] EWCA Civ 895

Case No B2/2003/0324[2003] EWCA Civ 895
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(MR RECORDER MORRIS-COOLE)
Venue Royal Courts of JusticeDate Monday 30 th June 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE SIMON BROWN(Vice-President of the Court of Appeal Civil Division)LORD JUSTICE WALLERLORD JUSTICE KAY
Between
SCOTT HIGGSAppellantBRIGHTON AND HOVE CITY COUNCILRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Watkinson (instructed by Brighton Housing Trust) for AppellantClare Roberts (instructed by Legal Services, Brighton & Hove City Council) for Respondent
JudgmentAs Approved by the CourtCrown Copyright ©
[1]This appeal brought with permission from Sedley LJ raises a short point of statutory construction namely whether the sudden disappearance without trace of the caravan in which a person was making his home comes within the description of “an emergency such as flood, fire or other disaster” in section 189 (1)(d) of the Housing Act 1996 (“the Act”) so as to give him a priority need for accommodation. The respondent’s notice, for which we gave permission at the hearing, raises a further issue as to whether the appellant’s homelessness was in any event “as a result of” the loss of his caravan.[2]On 5 February 2003 Mr Recorder Morris-Coole sitting in the Brighton County Court concluded that the loss of the caravan was not such an emergency and accordingly dismissed an appeal brought by the appellant, Scott Higgs, against a decision of the respondent authority that it was not under a duty to provide him with accommodation.[3]From a date some time after Christmas 2001 the appellant lived in a caravan placed on Council land in Hove Park. It is accepted that he had no lawful right to locate the caravan at that place. In March 2002, the respondent took enforcement action under the Criminal Justice and Public Order Act 1994 requiring the appellant to remove the caravan. A summons was served on the appellant for the matter to be heard on 2 April.[4]Before that hearing could take place, the appellant went out with his dogs on 30 March and discovered on his return that his caravan containing all his possessions had vanished without trace. The caravan has never been found and there is no evidence as to what became of it.[5]The appellant found temporary accommodation with friends and on 21 May 2001, he made a formal application to the respondent authority for housing as a homeless person pursuant to Part VII of the Act.[6]Section 175 of the Act provides the relevant definition of homelessness:
“(1) A person is homeless if he has no accommodation for his occupation in the United Kingdom or elsewhere, which he- (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court; (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (2) A person is also homeless if he has accommodation but:- (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.” (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court; (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.”
[7]By section 192 of the Act a housing authority has a duty to provide advice and information to a homeless person in any attempts he might make to ensure that accommodation becomes available for his occupation. If, however, a homeless person has “a priority need for accommodation”, and was not intentionally homeless the duty becomes one under section 193 to ensure that accommodation is available for him.[8]Section 189(1) provided the following definition of a priority need for those purposes:
“The following have a priority need for accommodation- (a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside, (b) a person with whom children reside or might be expected to reside; (c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonable be expected to reside; (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.”
[9]The respondent authority accepted that the appellant was homeless and further that he was not intentionally homeless but concluded that he did not have a priority need. In the letter containing its decision, dated 7 September 2002, the relevant officer explained why he did not consider that the appellant came within category (d) of section 189(1) by reference to the Code of Guidance. Paragraph 8.42 of the Code provided:
“…To qualify as an “other disaster” the disaster must be in the nature of a flood or fire, and involve some form of physical damage or threat of damage. The volcanic activity on the island of Montserrat was treated as an example of an “other disaster”
. Applicants have a priority need by reason of such an emergency whether or not they have dependent children or are vulnerable for any reason.” After considering that guidance the decision letter concluded that the appellant did not come within the relevant provision. Thus the respondent authority was prepared to offer advice and information but not to secure accommodation.[10]The appellant requested a review under section 202 of the Act. The respondent authority notified him of its decision on 18 October 2002. The letter stated:
“… I am satisfied that the decision made on 7th September 2002 was correct and although Mr Higgs is homeless, he is not in priority need…Consideration was given to the circumstances in which Mr Higgs lost his caravan, and whether or not that constituted an emergency. Having consulted the code of guidance, it was decided that these circumstances did not amount to an emergency within the meaning of the Act. Mr Higgs has lost his accommodation in the same way that someone might if evicted illegally, however this in itself does not constitute priority need.”
[11]The appellant exercised his right of appeal to the County Court. At the hearing the Recorder’s attention was drawn to the case of R v Bristol City Council, ex p Bradic (1995) HLR 584 in which this court had to consider precisely the same provisions then contained in section 59(1)(d) of the Housing Act 1985.[12]In that case the court dealt with the case of a person rendered homeless when his landlord unlawfully evicted him whilst he was away on holiday and the landlord himself lost possession of the premises to a building society by court order. The judge at first instance concluded that the loss of his home in such circumstances was to be characterised as an emergency such as flood, fire or other disaster and the local authority appealed that decision.[13]The Court of Appeal affirmed the view expressed by the Court in considering a similar provision in earlier legislation, section 2(1)(b) of the Housing Act 1977, in the case of Noble v South Herefordshire District Council (1983) 17 HLR 80, where Waller LJ with whom May LJ agreed said:
“In my opinion that argument (that the word ‘emergency’ was used in a wider sense than emergencies confined to emergencies arising from disaster) has no force in this case because in the phrase ‘any emergency such as flood, fire or any other disaster’ the words ‘or any other disaster’ are clearly indicating ‘any other disaster’ similar to a flood or a fire”
[14]Having accepted that proposition, Roch LJ in his judgment in Bradic, with which the other two members of the court expressly agreed, said at page 50:
“In my view the event that results in the homelessness of the person claiming a priority need must have the characteristics of being “an emergency” and “a disaster”
. The omission of the word “any” before the words “other disaster” in the 1985 Act reinforces, in my opinion, this reading of the subsection. I would therefore interpret the words of the subsection to mean an emergency such as flood, fire or other disaster of a similar nature. The line is not, in my judgment, to be drawn as narrowly as to confine the emergencies which can give rise to a priority need to those amounting to “force majeure”. Parliament must have had in mind emergencies caused by fires deliberately or accidentally caused by human beings. In my opinion the line is to be drawn so as to embrace all emergencies which consist of physical damage to the accommodation of the applicant which have made the accommodation uninhabitable.”[15]The Recorder in this case applying the construction of the section “as laid down in Bradic” concluded that “the disappearance of this property without any explanation as to by whom, for what motive, or what has become of it does not fall within the construction of this priority section.”[16]On behalf of the respondent, Miss Roberts contends that the Recorder was right to so find. She argues that whilst the loss of the caravan was no doubt a disaster from the point of view of the appellant, it was not a disaster similar to flood or fire. She contends that what the section clearly envisages is a loss of home through some physical disaster.[17]Miss Roberts accepts that the intervention of some other person will not prevent an emergency coming within the provision. Roch LJ gave the example of an arsonist deliberately setting fire to a home. But she argues that physical damage is the essential element.[18]I cannot accept these arguments. No-one knows what became of this caravan. It may for all that is known have been removed and destroyed. Can Parliament really have intended that unless the appellant could trace his caravan or its remains and show that it had been rendered uninhabitable, he was not to be treated as a priority need?[19]It would be surprising to say the least if a person whose caravan was removed without trace was in a fundamentally different position from someone whose caravan was destroyed whether by deliberate fire or by vandalism. Most other dwellings simply cannot be removed but if one considers a pre-fabricated structure that was dismantled and taken away it is difficult to see how such a situation could be viewed as different from someone having just raised it to the ground.[20]Thus I am satisfied that this loss of the appellant’s home was an emergency akin to those expressly referred to in section 189(1)(d) of the Act. It involved the sudden and wholly unexpected loss of the appellant’s home in circumstances wholly outside his control by the loss of the structure in which he made his home. The removal of the caravan was a form of physical interference with the property that deprived the appellant of his home and this is to be contrasted with the situation in Bradic where the home remained available as a home in which the respondent could have lived but for the operation of the law that precluded him from regaining occupation of the premises.[21]If it were not for the second point raised by the respondent’s notice I should feel bound to allow the appeal. However, Miss Roberts raises a further difficulty in the path of the appellant which she contends meant that in any event his claim was bound to fail.[22]Section 175(2)(b) of the Act means that a person is homeless if he lives in a caravan and he has no place where he is entitled to locate his caravan and to reside in it. That, Miss Roberts argues, was the position of the appellant prior to the loss of his caravan. He was, therefore, homeless long before the caravan went missing. In these circumstances she submits the homelessness was not “as a result” of the loss of his caravan as is required by section 189(1)(d) of the Act.[23]Mr Watkinson, on behalf of the appellant, responds by saying that at the time when a person claims to be homeless, it is necessary to look at the operating factor that has deprived him of his home at that stage and in this case that was the loss of the caravan. It is, he submits, of no consequence that prior to the loss of the caravan he might have been deemed to be homeless because it was only the disappearance of the caravan that caused the appellant to seek the assistance of the respondent.[24]With every respect to Mr Watkinson, that argument simply cannot be right. The appellant had not had a home for some time and the supervening event of the loss of the caravan did nothing to change his status as homeless. His homelessness was caused under the Act by whatever circumstances led him to live in a caravan which he had no right to park anywhere. Unless and until he had a home again, his homelessness continued and it resulted from that cause and not as in this case from the subsequent loss of the caravan.[25]For these reasons, I accept the respondent’s argument that the decision below must be upheld, although not for the reasons given by the Recorder but rather by reference to the matter raised in the respondent’s notice. I would, therefore, dismiss this appeal.[26]This appeal centres on s189(1)(d) of the Housing Act 1996 (“the 1996 Act”) which provides that:
“(1) The following have a priority need for accommodation- … (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.” … (d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.”
[27]Two question arise: first, whether the sudden disappearance of the appellant’s caravan in the circumstances described by Kay LJ constituted “an emergency such as flood, fire or other disaster”; secondly, even supposing that it did, whether the appellant’s homelessness was “as a result of” that emergency.[28]The judge below decided the first issue against the appellant who now appeals to this court by permission of Sedley LJ who described the issue as “a short and truly important point of principle”. The judge noted but expressed no conclusion upon the second issue which now comes before us by way of a respondent’s notice (for which we gave leave at the hearing).

Issue 1

[29]The most authoritative decision in point on this issue is R -v- Bristol City Council ex parte Bradic (1995) 27 HLR 584 in which this court held that a tenant’s illegal eviction did not constitute an emergency within the relevant provision (then s59(1)(d) of the 1985 Act). In the leading judgment at p590 Roch LJ said this:
“In my view the event that results in the homelessness of the person claiming a priority need must have the characteristics of being ‘an emergency’ and ‘a disaster’. … I would therefore interpret the words of the subsection to mean an emergency such as flood, fire or other disaster of a similar nature. The line is not, in my judgment, to be drawn as narrowly as to confine the emergencies which can give rise to a priority need to those amounting to ‘force majeure’. Parliament must have had in mind emergencies caused by fires deliberately or accidentally started by human means and floods deliberately or accidentally caused by human beings. In my opinion the line is to be drawn so as to embrace all emergencies which consist of physical damage to the accommodation of the applicant which have made that accommodation uninhabitable.”
The other members of the court agreed with that reasoning before adding short judgments of their own.[30]Was the sudden disappearance of the appellant’s caravan properly to be characterised both as “an emergency” and “a disaster” of a similar nature to the destruction of a building by flood or fire (recognising that such flood or fire may be caused deliberately as well as accidentally)? In my judgment it was. If a relevant emergency is constituted by someone hostile to the applicant setting fire to his accommodation, why not equally by such a person permanently removing it? If a tornado were to carry away a caravan, why should one treat its loss through malign human action as any less of an emergency and disaster? Most accommodation, of course, is to be found in permanent rather than moveable structures. Where, however, as here, it is moveable, it seems to me vulnerable to the additional hazard of disappearance (in the case of a vessel, for example a houseboat, by sinking), a disaster to my mind of a similar nature to the burning or flooding of a house.[31]I respectfully disagree with the Recorder’s conclusions on this first issue.

Issue 2

[32]Section 175(2)(b) of the 1996 Act provides that: “A person is also homeless if he has accommodation but- … (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.” …[33]In these proceedings it is conceded that at the date of the caravan’s disappearance (indeed for some months previously) there was no place where the appellant was entitled or permitted both to place it and to reside in it. He was, therefore, at that time homeless within the meaning of the 1996 Act.[34]In those circumstances it seems to me quite impossible to contend that he was “homeless as a result of” the emergency constituted by the caravan’s disappearance so as to establish a priority need for accommodation under s189(1)(d). He was already homeless. He was not made homeless by the caravan’s disappearance.[35]I would accordingly uphold the decision below - the decision that the appellant has not made out a case for priority need - but solely by reference to the causation issue raised by the Respondent’s Notice. On this basis, in common with Kay LJ whose judgment I have now read, and agree with, I too would dismiss the appeal.[36]I agree that for the reasons given in both judgments that the loss of the appellant’s caravan should properly have been characterised as an “emergency” and a “disaster” similar in nature to the destruction of a building by flood or fire. However I also agree again for the reasons given in both judgments that the appeal must be dismissed because the appellant was already homeless, and thus his homelessness was not as a result of that emergency or disaster.

Order

Appeal dismissed. No order as to costs.