Brooks, R (On the Application Of) v The London Borough of Islington [2015] EWHC 2657 (Admin)

[2015] EWHC 2657 (Admin)

Case No CO/1946/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/09/2015

Before

MR JUSTICE LEWIS

Between

THE QUEENClaimant

THE LONDON BOROUGH OF ISLINGTONDefendant

Anna Watterson (instructed by Miramar Legal) for Claimant

Christopher Baker (instructed by LB Islington) for Defendant

Hearing Hearing date: 19/08/2015

Judgment

INTRODUCTION

[1]This is a claim for judicial review of a decision of the Defendant, the London Borough of Islington, contained in a letter dated 15 April 2015, indicating that the Defendant considered that they had performed their duty to secure the provision of accommodation pursuant to section 188 of the Housing Act 1996 (“the Act”) by offering accommodation in a three-bedroomed house at 48 Barnsfield Road, Bexley, London. The Claimant had refused that offer of accommodation. The Defendant declined to make any further offer of accommodation.

[2]In brief, the Act provides a code for dealing with a person who is homeless or threatened with homelessness within the meaning of the Act. A person may apply for assistance. The housing authority must then make inquiries to determine whether the person is eligible for assistance and whether any duty is owed under the Act. The authority must notify the applicant of their decision. Pending the outcome of the inquiries, the authority may be under an interim duty to secure that accommodation is available by reason of section 188 of the Act

[3]The Claimant contends that the duty under section 188 of the Act to secure that accommodation is available continues until the Defendant notifies the applicant of their decision as to whether or not any duty is owed to the applicant under the other provisions of the Act. In the present case, therefore, the Claimant contends that the duty under section 188 continued to exist as at 15 April 2015 as the Defendant had not notified her of their decision as at that date. Consequently, the Claimant contends that the Defendant were either required to hold open the offer of accommodation at 48 Barnsfield Road or to provide other accommodation until such time as she was notified of the Defendant’s decision.

[4]The Defendant contends that they had performed their duty under section 188 of the Act by making an offer of suitable accommodation. If an applicant for assistance refuses that offer, then, the Defendant contends, the authority is not in breach of its duty under section 188 of the Act and is not required to make further offers of accommodation.

THE FACTS

[5]The Claimant was the mother of three children, an adult daughter, a daughter who was under 18 years old at the material time, and an adult son. Her son had a serious medical condition and was admitted to hospital on 2 March 2015. He, sadly, died on 16 April 2015 without having left hospital.

[6]The Claimant had been the tenant of premises owned by a housing association. She had lived there with her two daughters and her son. On 25 August 2011, a possession order was made granting possession of the property to the housing association as rent had not been paid. The possession order was suspended and arrangements made for the Claimant to pay the arrears. The arrears were not paid and the amounts owing increased. On 8 January 2015 permission was granted to enforce the possession order. The order was enforced and the Claimant was evicted, and ceased to occupy the property, on 24 March 2015.

[7]On 31 March 2015, the Claimant applied to the Defendant for assistance under the homelessness provisions of the Act. The Defendant had reason to believe that the Claimant was homeless, eligible for assistance and had a priority need within the meaning of the Act as she had a child (her younger daughter who was then aged 17) living with her. The Defendant considered, therefore, that they owed her a duty under section 188 of the Act to secure that accommodation was available to her whilst they made further inquiries. At that stage, the only accommodation that the Defendant could secure was accommodation for one night at the Hornsey Road Reception Centre. The Claimant did not wish to accept that accommodation and informed the Defendant that she had made other arrangements.

[8]On 2 April 2015, the Claimant returned to the housing office. At that stage, the only accommodation that the Defendant could secure was temporary accommodation at a hotel. The Claimant and her two daughters were accommodated at a hotel in Barking between 2 and 7 April 2015, a hotel in Romford on 8 and 9 April 2015 and a hotel in Enfield on 10 to 13 April 2015. The hotel accommodation was seen as a short-term expedient and the Defendant’s officers continued to search for temporary accommodation for the family pending the outcome of their inquiries on her homelessness application.

[9]On 14 April 2015, the Defendant secured for the Claimant the offer of accommodation in a three-bedroomed house at 48 Barnsfield Road, Bexley in south London. The Claimant met an accommodation officer at the housing office in Islington. The officer went through the relevant documentation and informed the Claimant of the address of the property, the bedroom sizes, the charges and the terms and conditions of the tenancy. At that stage the Claimant had not visited the property. The Claimant signed a temporary accommodation occupancy agreement for the property. Clause 18 of that agreement provided that:

“Given the shortage of affordable housing in Islington, and taking into account all of your circumstances, the council believes that it is reasonable for us to offer you this accommodation, which we consider suitable for you. Should you refuse this offer, the council may discharge its duty to accommodate you and may not make you another offer.”

[10]On 15 April 2015, the Claimant returned to the housing office and met Mr Lawal, one of the mangers in the Defendant’s homelessness team. The Claimant contended that it was not reasonable for her to occupy the property at Barnsfield Road because of its location. She said that it had taken two to three hours to drive from the accommodation to Islington. She also referred to the fact that there were stairs at the property and she did not consider that it would be suitable for her son who used a wheelchair. Mr Lawal was familiar with the area and considered that it would take between 45 minutes and 1 hour to travel from the accommodation to Islington and he considered that that distance was reasonable. Mr Lawal was also familiar with the circumstances of the Claimant and her family. He considered that the accommodation was suitable for the family to occupy but he was prepared to review its suitability again when further details of the Claimant’s son’s date of discharge from hospital and his medical needs then were known. He further informed the Claimant that, if she refused the offer of the accommodation, she would not be offered any further temporary accommodation whilst the Defendant made its inquiries into her homelessness application.

[11]The Claimant then spoke to a colleague of Mr Lawal. She was asked if she wished to reconsider her refusal. The Claimant confirmed that she did not wish to accept the accommodation at 48 Barnsfield Road. The Claimant spoke again to Mr Lawal and again confirmed that she wished to refuse the offer of accommodation at 48 Barnsfied Road. Mr Lawal advised her that the Defendant would not be making a further offer of temporary accommodation. He confirmed the position in writing on 15 April 2015. The letter was initially headed “Formal notice under section 193(6) of the Housing Act 1996 (Discharge of duty)”. That was an error as the letter concerned section 188 of the Act. A further copy of the letter was sent, with the heading “Formal notice under section 188 of the Housing Act 1996 (Discharge of duty)”. The text of the letter remained the same. The material parts were as follows:

“Following your application for accommodation to this Authority under Part VII of the Housing Act 1996 (homelessness) on 31 March 2015, you were provided with temporary accommodation pending enquiries into your homeless application. “On 14 April 2015, we offered you alternative accommodation at 48 Barnsfield Road, DA17 5NG. You signed for the licence agreement but later returned to advice that the accommodation is not suitable because “it is too far for you to access and the property does not meet your son’s medical needs”. “I have carefully considered the information before me and assessed that the temporary accommodation offered by this Council is reasonable and suitable for your needs. I informed you that London is cosmopolitan city with good transport links and Bexley Council is connected to Islington by good transportation networks. The average journey can be completed by car or train within 1 hour. I also advised we will review the suitability of the accommodation when medical information is received from your son’s hospital with confirmation of the date of discharge from hospital. “You further advised me that you believe that the remnant of the presence of cats exist within the property and you are allergic to cats. I confirmed that there are no cats within the property and I will get the agent to clean the property. “I have also explained to you the implications if you refuse the offer. You have informed me that you wish to refuse the offer of Temporary accommodation provided by the Council under the above Act. “In view of this circumstance, I regret to inform you that your temporary accommodation has now been cancelled. The council is also discharging its full duty towards you under S.188 of the above act. You are now responsible for your own housing arrangements and can seek assistance from your local Children’s Services or alternatively you can seek housing advice from the authority under Section 190 of the above Act. “If you have a General Waiting List application and you require housing assistance from the Council, you should contact the Registration Team on 020.7527.4140. Alternatively you can contact the Registration Team, to enquire as to your rights to make a General Waiting List application. “If you are dissatisfied with the Council’s decision that it was discharged its duty towards you you have the right to appeal to the County Court on a point of law or to approach the Local Ombudsman. Any such appeal must be made within 21 days of your receipt of this letter. “You may approach this office for advice and assistance.”

[12]The Defendant cancelled the arrangements for the rental of 48 Barnsfield Road on 16 April 2015, having paid for the nights of 14 to 16 April 2105 inclusive.

[13]On 23 April 2015, the Claimant applied out of hours to the duty judge for interim relief requiring the Defendant to secure accommodation for her and her two daughters, her son, sadly, having died on 16 April 2015. Hickinbottom J. granted that application and ordered, by way of interim relief, that the Defendant was to secure that appropriate accommodation was available for the Claimant with her household, now consisting of her two daughters, until such time as the judicial review was concluded or until further order. Following that order, the Defendant secured accommodation in a 3 bedroomed house at 32 Bostall Lane, London SE2 0NH.

[14]Permission to apply for judicial review was granted by Ouseley J. on 5 June 2015 on two grounds, namely:

“i) Whether the Defendant made an error of law in its decision dated 15 April 2015 by treating its duty to the Claimant under s.188(1), of the Housing Act 1996 as having come to an end in circumstances where it was satisfied that the Claimant had refused an offer of suitable accommodation;” ii) In the alternative, whether the Defendant lawfully decided that its duty under s.188(1), Housing Act 1996 was ended by the refusal of such accommodation, if it did not give the claimants opportunity for a few days thereafter, to reconsider her refusal or to decide how to deal with the disagreement over suitability.”

[15]Ouseley J. continued the order for interim relief until such time as the Defendant notified the Claimant of their decision in accordance with section 184 of the Act, but provided that the interim relief would cease if the Claimant did not respond to the Defendant’s inquiries. The Claimant did respond to the Defendant’s inquiries.

[16]On 16 June 2015, the Defendant notified the Claimant of their decision. The Defendant found that the Claimant was homeless, eligible for assistance, and had a priority need. However, the Defendant was satisfied that the Claimant’s homelessness was intentional in that it was the consequence of a deliberate act or omission on the part of the Claimant in failing to pay the rent due for the property that she had been occupying. The Defendant was therefore satisfied that they did not owe the Claimant a duty under section 193 of the Act and they were not required to secure that accommodation was available for occupation by her. The Defendant decided that it would not provide temporary accommodation at 32 Bostall Lane after the night of 29 June 2015 which would be the Claimant’s last night at the property. The interim relief came to an end on the notification of the Defendant’s decision in accordance with the provisions of the order of Ouseley J.

[17]Mr Lawal, in his two witness statements, sets out the difficulties faced by housing authorities seeking to perform their duties under the 1996 Act and section 188 in particular. The Defendant has found it increasingly difficult to identify suitable temporary accommodation within London. The Defendant presently has a team of two officers searching on a daily basis for temporary accommodation for applicants for assistance. The Defendant receives a large number of applications for assistance under the Act. During the 2014/2015 financial year, the Defendant has placed 865 applicants in temporary accommodation pursuant to section 188 of the Act. On occasions, the Defendant has to resort to securing hotel accommodation for homeless applicants. This is regarded as a short-term expedient. It is not considered desirable accommodation for families and it is expensive.

THE LEGAL FRAMEWORK

[18]Part VII of the Act deals with homelessness. Section 175 of the Act provides, amongst other things, that a person is homeless if he has no accommodation available to him. Section 176 of the Act provides that accommodation is only to be regarded as available for occupation if it is available for occupation by him together with any person who normally resides with him as a member of his family or who might reasonably be expected to reside with him. Section 183 of the Act recognises that persons may apply to a local housing authority for accommodation. Section 184 of the Act imposes duties upon the authority to make appropriate inquiries and, so far as material, provides that:

“184.— Inquiry into cases of homelessness or threatened homelessness. ‘(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves— (a) whether he is eligible for assistance, and (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part. “(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland. “(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision. ….. “(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202). “(6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority's office for a reasonable period for collection by him or on his behalf.”

[19]Section 188 of the Act imposes what is described as an interim duty to secure accommodation in cases of apparent priority need and provides as follows: 188.— Interim duty to accommodate in case of apparent priority need. “(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part. (1A) But if the local housing authority have reason to believe that the duty under section 193(2) may apply in relation to an applicant in the circumstances referred to in section 195A(1), they shall secure that accommodation is available for the applicant's occupation pending a decision of the kind referred to in subsection (1) regardless of whether the applicant has a priority need. “(2) The duty under this section arises irrespective of any possibility of the referral of the applicant's case to another local housing authority (see sections 198 to 200). “(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review.”

[20]Section 190 of the Act provides that a housing authority is subject to limited duties where the authority is satisfied that the applicant is homeless, eligible for assistance and has a priority need but became homeless intentionally. Section 193 of the Act provides that the authority is subject to a duty, often referred to as the full duty, to secure that accommodation is available when the authority is satisfied that the applicant is homeless, eligible for assistance, has a priority need and did not become intentionally homeless. The provisions of section 193 of the Act, so far as material, provide that:

“193.— Duty to persons with priority need who are not homeless intentionally. “(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 until it ceases by virtue of any of the following provisions of this section. ….. “(5) The local housing authority shall cease to be subject to the duty under this section if— (a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant, (b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and (c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section. “(6) The local housing authority shall cease to be subject to the duty under this section if the applicant— (a) ceases to be eligible for assistance, (b) becomes homeless intentionally from the accommodation made available for his occupation, (c) accepts an offer of accommodation under Part VI (allocation of housing), or (cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord, (d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation. “(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal or acceptance and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6. “(7AA) The authority shall also cease to be subject to the duty under this section if the applicant, having been informed in writing of the matters mentioned in subsection (7AB)– (a) accepts a private rented sector offer, or (b) refuses such an offer.” (a) accepts a private rented sector offer, or (b) refuses such an offer.”

[21]Section 206 of the Act sets out the ways in which the authority may discharge, that is perform or carry out, their functions under Part VII of the Act. The section provides that:

“206.— Discharge of functions by local housing authorities. “(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, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person. “(2) A local housing authority may require a person in relation to whom they are discharging such functions— (a) to pay such reasonable charges as they may determine in respect of accommodation which they secure for his occupation (either by making it available themselves or otherwise), or (b) to pay such reasonable amount as they may determine in respect of sums payable by them for accommodation made available by another person.”

THE ISSUES

[22]The principal issue in the case is that foreshadowed in the first ground upon which permission was granted, namely whether, as a matter of the proper construction of section 188 of the Act, the duty imposed by that section came to an end in circumstances where the Defendant was satisfied that the Claimant had refused an offer of suitable accommodation.

[23]A secondary issue potentially arose in the alternative, namely whether, on the particular facts of this case, the Defendant had properly discharged their duty under section 188 of the Act if they did not give the Claimant an opportunity for a few days after making the offer of temporary accommodation to reconsider her refusal of the offer or to decide how to deal with the disagreement over the suitability of the accommodation.

[24]These issues are now academic in the sense that there is no longer any live issue between the parties. As the parties accept, on any analysis, any duty under section 188 of the Act would have ended at the latest when the Defendant gave notice on 16 June 2015 of their decision in accordance with section 184 of the Act. Furthermore, the interim relief also came to an end on notification. The Claimant is not now entitled to any remedy in relation to the duty under section 188 of the Act. Both parties, however, submit that, at least in relation to the first and principal issue, this is an appropriate case for the court to exercise its discretion to deal with that issue. Both parties submit that the principal issue raises a question of statutory construction which has significance for local housing authorities in respect of the way in which they approach their duty under section 188 of the Act even though the Claimant herself would no longer be entitled to seek a remedy in relation to that duty.

[25]The courts have a discretion to hear claims involving questions of public law even if, at the time when the case comes to be heard, there is no longer a live issue to be decided which will directly affect the rights and obligations of the parties: see R v Secretary of State for the Home Department ex p. Salem [1999] 1 A.C. 450 (dealing with appeals, but similar principles apply to hearings at first instance). That discretion “is to be exercised with caution and public law disputes which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so” (see per Lord Slynn at page 457A-B).

[26]In the present case, it is appropriate, in my judgment, to exercise that discretion in relation to the principal issue in this case. First, that issue involves a question of statutory construction, namely the proper interpretation of section 188 of the Act. Secondly, it is an issue of importance to housing authorities and individual applicants who are homeless as the answer to that issue will determine how housing authorities should approach their duty under section 188 of the Act. Thirdly, the issue may not otherwise be determined unless it is resolved in a case such as the present. The issue relates to the interim duty to provide temporary accommodation pending a decision, following inquiries, on whether or not a duty is owed under the provisions of Part VII of the Act. The period of time during which that interim duty is owed is likely to be relatively short and in most, perhaps all, cases the question of enforcement of the duty would have ceased to be a live issue before the matter could be brought before a court by way of judicial review. There may not be a case where the issue has not become academic before the court considers it. Fourthly, in the present case, the issue arises against a background of actual rather than assumed or hypothetical facts. Even when considering questions of statutory interpretation, it is usually preferable to approach the matter on the basis of an actual factual situation. That better enables possible alternative interpretations of the statutory provision to be assessed. For all those reasons, there is a public interest in dealing with the principal issue and this case is an appropriate case for the court to rule on that issue.

[27]The position is different in relation to the second issue. The parties agree that, in the way that the dispute arises in this case, no question of statutory interpretation arises. It is, rather, a question of whether on the particular facts of this case the Defendant acted reasonably when they did not give the Claimant a few days to reconsider her refusal of the offer of accommodation or decide how to deal with the disagreement over suitability. That issue, as both parties accept, turns on the particular facts of the case. It is not usually appropriate to exercise the discretion to entertain public law claims which have become academic between the parties where the determination will depend upon the precise factual context of each case: see R v Secretary of State for the Home Department ex p. Salem [1999] 1 A.C. 450 at page 457B-C. Any decision on the particular facts of this case is unlikely to be of assistance in future cases. For those reasons, I do not consider that there is a public interest in dealing with the second issue that arises in this case.

THE PRINCIPAL ISSUE – THE PROPER CONSTRUCTION OF SECTION 188 OF THE ACT

[28]Ms Watterson, on behalf of the Claimant, submits that Part VII of the Act sets out a complete statutory code setting out, amongst other things, when a local housing authority owes a duty under the Act and when that duty ceases. The Claimant contends that the duty under section 188 does not cease until the Defendant notifies the Claimant of its decision as to whether or not any duty is owed: see section 188(3) of the Act. The Claimant further contends that the duty is owed, and may therefore be enforced, until the duty has ceased. Consequently, the Claimant contends that the Defendant acted unlawfully on 15 April 2015 when it decided that it was no longer required to perform any duty under section 188 of the Act as the Claimant had refused an offer of accommodation which the Defendant considered was suitable. As the Claimant put it in her skeleton argument the Defendant “was obliged either to hold open the offer of 48 Barnsfied Road or provide other accommodation until such time as its duty ceased in accordance with section 188(3)” of the Act.

[29]Mr Baker, on behalf of the Defendant, submits that the requirement under section 188(1) of the Act to “secure that accommodation is available … for occupation pending a decision” contemplates that it is ordinarily enough for the housing authority to have secured the availability of accommodation once. If the authority have done so, but the applicant fails to take advantage of the offer, the authority are not thereby in breach of their duty and are not required to undertake any further steps in performance of the duty.

Analysis

[30]First, having regard to the wording and structure of Part VII of the Act, It is necessary to distinguish between the existence of the duty and the performance of the duty. So far as the existence of the duty is concerned, the duty under section 188 of the Act arises if the authority has reason to believe that an applicant meets certain criteria, namely that the applicant may be homeless, eligible for assistance and may have a priority need. At that point, the duty arises and the authority will need to comply with the duty. If the authority does not do so, there may be a claim by way of judicial review to enforce the duty. The duty ceases to exist when the applicant is notified of the decision of the authority as to whether or not the applicant is owed a duty under the provisions of Part VII of the Act. Once that stage is reached, the duty under section 188 of the Act no longer exists and there is no longer any duty capable of being enforced.

[31]So far as performance of the duty is concerned, the duty is to secure that “accommodation is available for his occupation pending a decision as to the duty (if any) owed to him”. That duty may be performed either by the authority ensuring that accommodation provided by them is available to the applicant or ‘by securing that [the applicant] obtains suitable accommodation from some other person”: see section 206 of the Act. The authority will have performed the duty owed under section 188 of the Act if the authority offers suitable accommodation, or secures the offer of suitable accommodation by another person, which is intended to be available to the applicant until the authority have completed their inquiries and notified the applicant of their decision as to whether a duty is owed. If the applicant does not take up the offer of accommodation, then he cannot require the authority to take different and further steps to perform the duty again.

[32]There may be a material change of circumstances and the accommodation may cease to be suitable prior to the authority reaching a decision on whether or not a duty is owed. If so, the duty under section 188 of the Act still exists (as the time when it ceases to exist, namely notification of the decision, has not yet been reached). If a material change of circumstances occurs and if that results in the accommodation no longer being suitable, the authority would not at that stage be securing that suitable accommodation is available and the duty would be capable of being enforced by means of a claim for judicial review.

[33]Secondly, that interpretation of section 188 of the Act is, in my judgment, reinforced by the case law dealing with the predecessor to section 193 of the Act, that is the full duty to secure that accommodation is available. That duty was first included as section 4(5) of the Housing (Homeless Persons) Act 1977 (“the 1977 Act”) which provided that: “Where – [the housing authority] are satisfied – that he is homeless, and that he has a priority need, but (b) they are not satisfied that he became homeless intentionally their duty subject to section 5 below, is to secure that accommodation becomes available’.

[34]That duty was to be performed either by making accommodation held by the authority available or securing that the applicant obtained accommodation from some other person: see section 6(1) of the 1977 Act.

[35]In R v City of Westminster ex p. Chambers (1982) 6 H.L.R. 28, the applicant applied for housing for himself and his wife and child. In July 1981, he was offered the tenancy of 48 Padbury House, a two-bedroomed flat on the Lisson Green Estate owned by the local authority. The applicant did not like it as, amongst other things, the flat was on the fifth floor and the family wished to live on the ground floor. He, therefore, refused the offer of accommodation. He and his family went to live with his wife’s parents. A year later he applied again to the housing authority as he was threatened with homelessness as his mother-in-law had asked the family to leave. The authority refused the application and concluded that he was intentionally homeless as he had refused the offer of accommodation at 48 Padbury House. McCullough J. held that the authority was wrong to say that the applicant was intentionally homeless as that question involved consideration of whether he had intentionally ceased to occupy his mother-in-law’s property not 48 Padbury House. However, McCullough J. concluded that the authority was not required to take further steps to secure accommodation as they had performed their duty under section 4(5) of the 1977 Act. As McCullough observed at (1982) 6 H.L.R. 26 at page 29:

“” “What would have been the correct approach? It would have been this. In July 1981, Mr Chambers was homeless and had a priority need for accommodation. As the council accepted, he was not then intentionally homeless, so they were under a duty to secure that accommodation became available for his occupation. That is provided by Section 4(5). Their duty could be performed inter alia by “making available to him accommodation”, in accordance with Section 6. By “accommodation” is meant “appropriate accommodation”: see Parr v Wyre Borough Council (1982) 2 HLR 71, in the Court of Appeal. “If 48 Padbury House was not appropriate accommodation, the council's offer did not amount to the performance of its duty. But if, as the council contends, the accommodation was appropriate, their duty was performed by making the offer. They were obliged to do no more. The fact that Mr Chambers refused would be neither here nor there. “When he returned in June 1982, the council should not have said that he was an intentionally homeless person to whom they owed no duty. Taking the view they did of the unreasonableness of his refusal the previous year, they should have said that he was a person who had become unintentionally homeless and to whom they had owed a duty which had been performed. Had they said this, their decision would have been unimpeachable.”

[36]A similar conclusion was reached by the Court of Appeal in R v Wycombe District Council v Hazeltine (1993) 25 H.L.R. 313, dealing with section 65 of the Housing Act 1985, which replaced section 4(5) of the 1977 Act and was the immediate predecessor to section 193(2) of the Act. That sub-section provided that:

“(2) Where [the local housing authority] are satisfied that he has a priority need and are not satisfied that he became homeless intentionally, they shall, unless they notify another local housing authority in accordance with section 67 (referral of application on grounds of local connection) secure that accommodation becomes available for his occupation.”

[37]There, the housing authority had a policy that an applicant would only be made one reasonable offer of accommodation and, if that was refused, no further offer would be made. Lloyd L.J., with whom Hirst and Peter Gibson L.JJ. agreed, held, at page 315, that:

“By securing an offer of suitable accommodation, they would have fulfilled their statutory duty under section 65(2) and 69(1)(b) of the Act: see R v Westminster City Council ex p. Chambers (1982) 6 H.L.R. 24 and R v Ealing London Borough Council ex p. McBain [1985] 1 W.L.R. 1351.”

[38]The offer had to be one which took account of all relevant circumstances and, on the facts of that case, it did not as it was made on incomplete information. However, as Lloyd L.J. observed at page 318:

“Nothing I have said affects the ordinary rule, which is both lawful and convenient, that a housing authority fulfils its statutory duty under Part III of the Housing Act 1985 by making a single offer of suitable accommodation, subject only to a subsequent change of circumstances.”

[39]Both these decisions deal with the full duty under what is now section 193 of the Act not the interim duty under section 188 of the Act. Consequently, they are not direct authority as to the interpretation of section 188 of the Act. However, in both cases, the courts were considering how a particular duty was to be performed. The duty was a duty “to secure that accommodation becomes available” for a person’s occupation. The obligation in section 188 of the Act “to secure that accommodation is available” is materially similar to that obligation. In my judgment, the approach to determining what steps are necessary to fulfil the duty “to secure that accommodation becomes available” in relation to an applicant who is owed the full duty as he is unintentionally homeless, applies also where the authority owe a temporary or interim duty “to secure that accommodation is available” to an applicant pending a decision on whether a full, or permanent, duty to secure accommodation is owed. If an authority provides suitable accommodation, or secures an offer of suitable accommodation from another person, the authority has secured that accommodation is available and has performed its duty under section 188 of the Act.

[40]Ms Watterson submitted that the provisions of section 193(5)(a) of the Act demonstrates a legislative choice on the part of Parliament to provide that the duty ceases to exist when the applicant refuses an offer of accommodation which the authority are satisfied is reasonable but that no such provision was included in relation to section 188 of the Act. Ms Watterson submits that, consequently, Parliament cannot have intended that the refusal of an offer of reasonable accommodation would bring about the end of the interim duty. In my judgment, that overlooks the distinction between the performance of the duty and its continued existence as a matter of law.

[41]Parliament has chosen, by the provisions of section 193(5)(a) of the Act, to provide that persons who are unintentionally homeless and in priority need will cease to be owed a duty under section 193 of the Act if they refuse an offer of accommodation. As the duty would otherwise continue to exist as a matter of law, albeit that it would have been performed subject to there being no material change of circumstances, it is understandable that Parliament should have legislated to make it clear that the duty no longer existed as a matter of law, and could no longer be enforced by way of a claim for judicial review where a reasonable offer of accommodation had been refused. Parliament, however, was not seeking to eliminate the distinction between the existence and the performance of the duty. Nor was it seeking to provide that the words “to secure that accommodation becomes available” were no longer capable of meaning that the duty had been performed if an offer of suitable accommodation had been made. Rather, the action that would ensure the authority had performed its duty under section 193 of the Act would also, now, bring that duty to an end. In the context of section 188 of the Act, the duty will have been performed where an offer of suitable accommodation is made, subject to there being a material change of circumstances, but the existence of the duty would continue as a matter of law until a different event, notification of the eventual decision on whether a duty was owed, occurred.

[42]For completeness, I note that the Defendant submitted that its interpretation of section 188 of the Act was reinforced by the decisions of the Court of Appeal on the nature of the duty owed under section 21 of the National Assistance Act 1948: see R v Kensington and Chelsea R.L.B.C. ex p. Kutjim (1999) 32 H.L.R. 579 and Khana v Southwark London Borough Council [2002] H.L.R. 31. Those decisions, dealing with a different statutory framework, do not, in my judgment, assist in the interpretation of section 188, and Part VII, of the Act.

[43]Thirdly, in my judgment, the conclusion that I have reached as to the proper interpretation of section 188 of the Act is reinforced by consideration of the realities of the situation for which Parliament was legislating when enacting the Act and its predecessors. Parliament was intending to deal with the circumstances in which the state should provide accommodation to those in need of accommodation and who, without assistance, would otherwise be homeless or threatened with homelessness. Parliament would have been well aware of the competing claims for the provision of accommodation, which is often a scare resource, and the potential cost to the public purse of meeting those claims. Parliament would have intended the legislation to be interpreted in a way which took account of those realities.

[44]The interpretation that the Claimant seeks to place on section 188 of the Act would require the Defendant to pursue one of two courses of action. First , it would have to hold open the offer of accommodation at 48 Barnsfield Road until the section 188 duty to secure accommodation was available came to an end because the authority had notified the Claimant of its decision as to whether any duty was, in fact, owed under the Act. That would leave accommodation, an often scare and limited resource, empty for the period until the Defendant notified the Claimant of the decision following the making of inquiries in accordance with section 184 of the Act. That accommodation could well have been used to accommodate another homeless family in need of three-bedroomed accommodation. Further, the authority would have had to pay for that accommodation, even though it was empty, out of the public pursue. Alternatively, the Claimant would be entitled to refuse the offer of suitable accommodation at 48 Barnsfield Road and could then return immediately to the authority and require other accommodation to be provided. Accommodation is often a limited resource. Public resources would have to be devoted to finding alternative temporary accommodation. Parliament, in my judgment, would not have intended section 188 of the Act to be interpreted in a way that could leave scare and limited accommodation empty or require the use of public resources to identify further possible accommodation when suitable offers of accommodation had already been refused.

[45]By contrast, the interpretation of section 188 of the Act which I consider correct does enable competing claims for accommodation to be managed efficiently and without waste of public resources whilst providing for individuals in need of assistance to be offered suitable accommodation. The duty will be performed if the authority secure an offer of suitable accommodation pending notification of its decision, following inquiries into the homeless application as to whether a duty is owed, subject to any material change of circumstances which means that the accommodation is no longer suitable.

The Position in the Present Case

[46]In relation to the facts of the present case, the provision of accommodation for one, or a couple of nights, at a particular reception centre or hotel, would enable the duty to be performed on those nights but the duty would still need to be performed on subsequent nights until the Defendant notified the Claimant of their decision in accordance with section 184 of the Act. The provision of accommodation at 48 Barnsfield Road was intended to last until the Defendant had completed its inquiries and notified the Claimant of its decision. It was a three-bedroomed house which the Defendant considered was suitable for the Claimant and her family which, at the time the offer was made, consisted of her two daughters and her son. Had the Claimant’s son been discharged from hospital, and if his medical needs at the time of discharge had changed, that might have amounted to a material change of circumstances, and the authority would have to consider whether or not the accommodation remained suitable. Sadly, the Claimant’s son died without leaving hospital and the question of the continued suitability of the accommodation never needed to be addressed. In the circumstances, therefore, the Defendant had performed its duty under section 188 of the Act by securing the offer of suitable accommodation at 48 Barnsfield Road which would be available until the Defendant notified the Claimant of its decision on whether a duty was owed to her under Part VII of the Act.

CONCLUSION

[47]On the proper interpretation of 188 of the Act, a distinction is to be drawn between the existence of the duty and the steps required to perform that duty. The duty will continue to exist until the housing authority notify the applicant of their decision as to whether or not a duty is owed under another provision in Part VII of the Act. The housing authority will have performed their duty under section 188 of the Act if they have secured an offer of suitable accommodation intended to be available until notification of their decision as to whether a duty is owed, subject to any material change of circumstances which means that the offer is no longer suitable. If the housing authority have secured an offer of suitable accommodation, then, ordinarily, they will have performed their statutory duty under section 188 of the Act. If the applicant refuses the offer of suitable accommodation, the authority cannot be required to take further steps to provide alternative accommodation unless there is a subsequent material change of circumstances which renders the accommodation no longer suitable.

Cited in 13 later judgments

and 4 more of the most senior