R v Hillingdon LBC, ex p. Puhlhofer [1986] UKHL 1

House of Lords

Between

RAppellant

Hillingdon LBC, ex p. PuhlhoferRespondent

Before

Lord Keith of Kinkel

Date 6 February 1986

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 24th day of July 1985 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered That the Costs of the Appellants be taxed in accordance with Schedule 2 to the Legal Aid Act 1974.

Cler: Parliamentor:

6 February 1986

HOUSE OF LORDS

PUHLHOFER (A.P.) AND ANOTHER (A.P.) (APPELLANTS)

LONDON BOROUGH OF HILLINGDON (RESPONDENTS)

Lord Keith of Kinkel Lord Roskill Lord Brandon of Oakbrook Lord Brightman Lord Mackay of Clashfern

LORD KEITH OF KINKEL

My Lords,

I have had the advantage of having read in draft the speech, to be delivered by my noble and learned friend Lord Brightman. I agree with it, and would dismiss the appeal for the reasons he gives.

LORD ROSKILL

My Lords,

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Brightman. I agree with it and for the reasons he gives I would dismiss this appeal. I would like emphatically to endorse what my noble and learned friend has said about the misuse of the remedy of judicial review in cases where Parliament has entrusted the decision- making power to a public body save, of course, where that public body has acted in such a manner as to justify judicial intervention on one or more of the various grounds to which my noble and learned friend refers in his speech.

LORD BRANDON OF OAKBROOK

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman. I agree with it, and for the reasons which he gives I would dismiss the appeal.

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LORD BRIGHTMAN

My Lords,

The Housing (Homeless Persons) Act 1977 is a part of the large volume of public housing legislation based on the Housing Act 1957 (now Part III of the Housing Act 1985 shortly to come into force). It has generated a mass of litigation, at the receiving end of which are local authorities endeavouring to cope with intractable housing problems and to balance competing claims to limited housing resources. The present appeal is the first case to reach your Lordships' House, or indeed the Court of Appeal, that is directly concerned with the meaning to be given in the Act to the word "accommodation," a word which is central to the operation of the Act and has a place in almost every section.

The statutory scheme is well known, and needs only a brief introduction. As Lord Wilberforce has pointed out, the Homeless Persons Act (as I will call it) imposed for the first time on a local housing authority a positive duty to accommodate homeless persons, as distinct from assisting them through welfare departments. Section 1 of the Act is a definition section. It defines when a person is "homeless" within the meaning of the Act. The key words are:

"A person is homeless for the purposes of this Act if he has no accommodation, . . ."

The section then sets out circumstances in which a person is to be treated as having no accommodation. These circumstances bring the homeless person's family within the shelter of the Act; a person is to be treated as having no accommodation if there is no accommodation which he, together with any other person who normally resides with him as a member of his family, is entitled to occupy. The second part of the section specifies when a person is to be treated as homeless although he has accommodation, e.g. if he cannot secure entry to it. There is also a definition of a person threatened with homelessness. This category of homeless person need not be distinguished for the purposes of the present appeal.

Section 2 in effect divides homeless persons into those who have and those who have not a priority need. The "priority need" class includes, for example, a person who has dependent children residing with him. Section 4 defines the principal duties of the local authority towards the homeless. There are three categories of homeless persons. The highest category, towards whom the local authority has the highest statutory duty, is the homeless person who has a priority need and who is not intentionally homeless. The duty of the local authority is "to secure that accommodation becomes available for his occupation." The next category is the homeless person who has a priority need but became homeless intentionally (as defined in section 17): In this case the duty of the local authority is twofold, to furnish him with advice and appropriate assistance, and to "secure that accommodation is made available for his occupation [including his family, per section 16] for such period as they consider will give him a reasonable opportunity of himself securing accommodation for his occupation." The third category is the homeless person

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with no priority need, whether homeless intentionally or unintentionally. In this case the duty of the local authority is confined to furnishing advice and appropriate assistance. The duty of the local authority to secure that accommodation is made available to the homeless person is accordingly confined to the homeless person with a priority need: indefinite accommodation if not intentionally homeless, temporary accommodation if intentionally homeless.

It will be seen from a reading of the Act that it contains a statutory definition of "homeless" (section 1), "threatened with homelessness" (section 1), "priority need" (section 2), "accommodation . . . available for a person's occupation" (section 16), and "homeless intentionally" (section 17). There is no statutory definition of the word "accommodation" although it is a component of the meaning of each of these expressions. Nor is there any definition in the rest of the housing legislation; the different expression "housing accommodation" is used and defined, in different terms, in the Housing Acts of 1957 and 1974.

I turn to a brief narrative of the facts. The applicants are Mr. and Mrs. Puhlhofer, to whom I will refer as the husband and the wife. The wife, then unmarried, applied to the London borough of Hillingdon for assistance under the Act of 1977 in June 1983. She had a son born in April 1982 and was treated therefore as having a priority need. There was a dispute, irrelevant for present purposes, whether she was intentionally homeless. The local authority placed her in the Rosslyn Guest House, Harrow, used by the borough for homeless persons within their area. In July 1983 the husband, who was also homeless, applied to the borough for assistance. They introduced him by way of advice and appropriate assistance, to the same guest house. In September 1983 the husband and the wife married. In April 1984 a child was born of the marriage. In May 1984 the husband and the wife applied jointly to the borough for assistance under the Act. At that time they and the two children were in occupation of one room at the guest house, on a bed-and-breakfast basis. The applicants claimed that this room was not accommodation which answered the statutory duty of the borough under the Homeless Persons Act. The housing officer disagreed. He formally notified the husband and the wife by letter dated 11 May 1984 that they were not homeless or threatened with homelessness "because you have accommodation available for your occupation" at the guest house. The applicants were not satisfied with this answer and obtained leave to apply for judicial review of the local authority's decision. The relief sought by the applicants was an order of certiorari to quash the decision that they were neither homeless nor threatened with homelessness, and a declaration (so far as material) that "the accommodation available to the applicants is such that they are homeless" within the meaning of the Homeless Persons Act.

The applicants were at the date of the application in occupation of one room at the guest house containing a double and a single bed, a baby's cradle, dressing table, pram and steriliser unit. There were no cooking or washing facilities in the room. There were three bathrooms in the guest house, the total capacity of the guest house being 36 people or thereabouts. The applicants were in consequence compelled to eat out and to use a launderette

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for washing their own and the children's clothing. This expense absorbed most of their state benefit of £78 a week.

It is the submission of the appellants that a person does not have "accommodation" within the meaning of the Act and is therefore "homeless," if he occupies premises which either are not large enough to accommodate the family unit, or lack the basic amenities of family life; such basic amenities should include not only sleeping facilities, but also cooking, washing and eating facilities. If the premises are deficient in any of these respects, they are not accommodation. The local authority have to take into account the size of the family, and whether the premises occupied are capable of being regarded as a "home" for that family. Put shortly, "accommodation" must provide the ordinary facilities of a residence. Therefore no local authority properly directing themselves could have formed the view that the room allotted to the applicants at the Rosslyn Guest House was "accommodation" within the meaning of section 1, at least after the child of the marriage was born in April 1984, because it was then overcrowded in the statutory sense, and lacked both exclusive and communal facilities for cooking and clothes washing. So ran the argument for the appellants.

Before turning to the judgments of the Divisional Court and the Court of Appeal, it will be convenient to consider certain observations made in the Court of Appeal in Parr v. Wyre Borough Council (1982) 2 H.L.R. 71, which was decided on 3 February 1982. In that case a husband and wife, with five children, were desperate for accommodation. As a temporary expedient they acquired what was described as a motor caravanette, parked it on the promenade at Fleetwood, which was the husband's home town, and applied to the housing department for accommodation. The view taken by the housing officer was that they were not homeless because they had accommodation in keeping with their chosen mode of living. After some discussion, the housing department accepted that they were homeless and stated that they would make a suitable offer of accommodation. The offer turned out to be accommodation 200 miles away in Birmingham. It was held that the local authority could not on the facts of that case discharge their statutory duty in that manner. The importance of the case for present purposes is that observations were made in relation to the quality of the accommodation which a local authority is under a statutory duty to provide for homeless persons who qualify for accommodation, and those observations were fastened on by the trial judge in the instant case. Lord Denning M.R. said, at p. 78:

"It was agreed on all hands that the accommodation offered must be "appropriate" accommodation. That means, of course, that the house - as a dwelling - must be appropriate for a family of this size. It must have enough rooms to house his wife and five children."

Eveleigh L.J. spoke to the same effect, at pp. 79-80:

"I agree with my Lord that accommodation must be appropriate, and whether or not it is appropriate will be a matter for the local authority to decide taking into consideration all the facts and circumstances of the case.

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This court may then review that decision ii it comes to the conclusion that the local authority has approached the question of appropriateness upon a wrong basis."

Donaldson L.J. added, at p. 82:

"both parties agree that the word 'appropriate' should be read into the Act."

In the instant case the trial judge addressed himself first to the question whether the accommodation which the appellants were currently occupying was capable of being regarded as accommodation within section 1 of the Act. Not unnaturally, in the light of the observations of the Lords Justices in Parr's case, he translated this into the question "whether

. . . any reasonable authority could have come to the conclusion that it was appropriate." He concluded:

"the accommodation in this case is so inappropriate . . . particularly in respect of overcrowding . . . that no reasonable local authority properly directing itself . . . could come to the conclusion that this particular accommodation was appropriate within section 1."

In so concluding the learned judge had regard to the Housing (Homeless Persons) Act 1977 Code of Guidance issued pursuant to section 12 of the Act. This section is in the following terms:

"(1) In relation to homeless persons and persons threatened with homelessness a relevant authority shall have regard in the exercise of their functions to such guidance as may from time to time be given by the Secretary of State. (2) The Secretary of State may give guidance either generally or to specified descriptions of authorities."

The second edition of the Code was issued in 1983. Paragraph 4, under the heading "Accommodation," begins with a reference to the duty of the local authority, where satisfied that an applicant is homeless and has a priority need, to secure that accommodation is available for his occupation. Paragraph 4.3 points out that the authority may fulfil their obligation to secure that accommodation is available in a number of ways, concluding as follows:

"Authorities should also bear in mind relevant provisions of general housing and public health legislation."

This observation led the learned judge to consider as a matter of importance section 4(1) of the Housing Act 1957 (as amended by section 71 of the Housing Act 1969), which provides:

"In determining for any of the purposes of this Act whether a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters, that is to say - ... ( cc )internal arrangement; . . . ( f )water supply; . . . ( h ) facilities for ... preparation and cooking of food and for the disposal of waste water; . . ."

He also referred to the fact that if the appellants' room at the guest house was a dwelling-house within section 77 of the Act of 1957 (as to which he made no finding):

"it is overcrowded to the extent of one half . . . when you go so far that there is, or would be, statutory overcrowding,

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then it seems to me that that is the 'bottom line.' . . . there is a bottom line and the accommodation in this case is so inappropriate, so fails, particularly in respect of overcrowding, to come up to the guidance (which I accept the local authority is not in law bound to follow) that no reasonable local authority properly directing itself and taking into account, but no more, the Code of Guidance, could come to the conclusion that this particular accommodation was appropriate within section 1."

He accordingly quashed the decision of the local authority, and declared that the applicants were homeless persons in priority need of accommodation.

The local authority appealed, but before turning to the judgments in the Court of Appeal, I would like to put aside the Code of Guidance. I am in respectful agreement with Slade L.J. that none of the provisions of the code give any assistance on the particular point at issue beyond that afforded by the Act itself.

Ackner L.J., who delivered the first judgment, rejected the proposition that accommodation within the meaning of section 1 of the Act must simply be "appropriate" or "reasonable":

"I am, however, of the opinion that to treat the word 'accommodation' as being totally unqualified does not give effect to the intention of Parliament as evinced by the statute considered as a whole .... In my judgment the accommodation must be such that it is reasonable for the applicant and his family to continue to occupy it, having regard to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he has applied. This qualification recognises: 1. that the standard of accommodation may be such that it is not reasonable for the housing authority to regard it as being capable of being accommodation for the applicant and his family; and 2. that the standard cannot be lower or higher than that required by section 17 of the Act to justify an applicant being entitled to leave that accommodation without thereby becoming 'intentionally' homeless."

He concluded that there was material upon which the borough were entitled to conclude, having regard to housing in their area, that it was reasonable for the Puhlhofers to continue to live in the accommodation at the guest house.

With great respect to the learned Lord Justice, I do not think that it was correct to construe "accommodation" in section 1 by reference to section 17. The relevant subsections of section 17 read as follows:

"(1) Subject to subsection (3) below, for the purposes of this Act a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. . . . (4) Regard may be had, in determining for the purposes of subsections (1) and (2) above whether it would have been reasonable for a person

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to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he applied for accommodation or for assistance in obtaining accommodation."

The purpose of subsection (1) is simply to define the expression "becomes homeless intentionally." The subsection starts by making the assumption that the homeless person has been in occupation of accommodation which is available for occupation both by him and (per section 16) by others reasonably expected to reside with him. It then assumes that the homeless person ceased to occupy that accommodation. Lastly, it assumes that it would have been reasonable for him to have continued to occupy that accommodation, instead of ceasing to do so. In such circumstances he "becomes homeless intentionally." For example, the rent of the accommodation which the homeless person has ceased to occupy may have become too great for that person to afford; in such a case the local authority may take the view that it was reasonable for him to cease to occupy it; therefore, though homeless, he is not homeless intentionally. Or the local authority may take the view that the new rent was within his means, so that by ceasing to occupy he made himself homeless intentionally. Or the accommodation which he occupied may be up a flight of stairs, which was no longer within the physical capacity of the homeless person; so the local authority may consider that it waif reasonable for him to have ceased to occupy it; he is, therefore, homeless but not intentionally. That subsection has nothing whatever to do with the inherent quality of the accommodation and does not assist to answer the question whether a person is homeless because he has no "accommodation" properly so called. Similarly, subsection (4) has no relevance for present purposes. It simply provides a gloss on the words in subsection (1), "which it would have been reasonable for him to continue to occupy." In deciding whether or not it was reasonable for the homeless person to walk out of his existing accommodation, the local authority may have regard to the general circumstances prevailing in relation to housing in the locality. An example of the possible application of this subsection was given by Lord Fraser of Tullybelton in Din (Taj) v. Wandsworth London Borough Council

[1983] 1 AC 657

, 670H- 671A.

Slade L.J. in his judgment also rejected the implication of "appropriate" in section 1 of the Act. He said:

"If the legislature, in using the word 'accommodation' in that section, had intended to confine its meaning to appropriate accommodation, or to accommodation which it was reasonable for the occupant to continue to occupy, I think it would surely have said so."

Glidewell L.J. added:

"If a person is occupying what would normally be regarded as accommodation (as the room occupied by [the Puhlhofers] certainly would) it is in my judgment still accommodation within section 1 however crowded or lacking in facilities it may be, and thus such a person is not 'homeless' within the Act of 1977."

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He concluded that there was information before the council on which they could properly reach the decision that the appellants were not homeless.

My Lords,

I have summarised the judgments in the Court of Appeal with brevity but I hope without discourtesy, for the purpose of indicating the diversity of opinion expressed.

There are several features of the Act which in my respectful opinion have to be borne in mind. First, although the Act bears the word "Housing" in its short title, it is not an Act which imposes any duty upon a local authority to house the homeless. As the long title indicates, its object is to make "further provision as to the functions of local authorities with respect to persons who are homeless or threatened with homelessness; . . ." It is an Act to assist persons who are homeless, not an Act to provide them with homes. It is an Act which came into operation in England and Wales only four months, and in Scotland only seven months, after it was passed (section 21); not sufficient time to enable a local authority to achieve any dramatic increase in their available housing stock. It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there probably are bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand, and the legitimate aspirations of those on their housing waiting list on the other hand.

In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word "accommodation" in section 1 or section 4 of the Act, and none is to be implied. The word "appropriate" or "reasonable" is not to be imported. Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of Part II of the Housing Act 1957 or might involve overcrowding within the meaning of Part IV. Those particular statutory criteria are not to be imported into the Homeless Persons Act for any purpose. What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. There are no rules. Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all; it would be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act. What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language.

I do not, however, accept that overcrowding is a factor to be disregarded, as Glidewell L.J. apparently thought. I agree that the statutory definition of overcrowding has no relevance. But accommodation must, by definition, be capable of accommodating. If, therefore, a place is properly capable of being regarded as accommodation from an objective standpoint, but is so small a space that it is incapable of accommodating the applicant together with other persons who normally reside with him as members of his family, then on the facts of such a case the applicant would be homeless because he would have no accommodation in any relevant sense.

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In the instant case the bona fides of the borough is not in dispute. On the facts in evidence, it is in my opinion plain that the council were entitled to find that the applicants were not homeless for the purposes of the Homeless Persons Act because they had accommodation within the ordinary meaning of that expression.

My Lords,

I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg, v. Secretary of State for the Environment. Ex parte Nottinghamshire County Council [1986] 2 W.L.R. 1, 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

My Lords,

I would dismiss this appeal. And I express the hope that there will be a lessening in the number of challenges which are mounted against local authorities who are endeavouring, in extremely difficult circumstances, to perform their duties under the Homeless Persons Act with due regard for all their other housing problems.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Brightman. I agree with it, and for the reasons which he gives I would dismiss the appeal.

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