| LOCAL GOVERNMENT — Homeless persons —Accommodation available for occupation — Whether applicant having accommodation elsewhere — Whether applicant to be treated as homeless regardless of reasonableness of expecting him to occupy accommodation elsewhere — Housing Act 1985, s175(1),(3)
R(Maloba) v Waltham Forest London Borough Council
CA: Sir Igor Judge, P, Carnwath and Toulson LJJ: 4 December 2007
On the proper construction of s 175(3) of the Housing Act 1985, the phrase “ accommodation which it would be reasonable .. to continue to occupy” was to be read as “ to occupy or continue to occupy”. Such an interpretation avoided the creation of a distinction between a person with unfit accommodation available to him who was living in it and one who was not. Furthermore, the matters to be considered in deciding whether it was reasonable to expect an applicant to occupy accommodation available to him were not limited to the size and structural quality of the accommodation.
The applicant had arrived from Kampala, Uganda in 1989 and acquired British citizenship in 1997. His family owned a house in Uganda in an annex to which his wife and child had lived since 2001 before joining him in London in 2004. They lived in privately rented accommodation until threatened with homelessness. In March 2005 the applicant applied to the council for accommodation. The application was refused on the ground that he was not homeless because the accommodation in Uganda was available and reasonable for him to occupy since he had not identified any problem with living in it.
The Court of Appeal so held, inter alia, dismissing the appeal of the council, Waltham Forest London Borough Council, from the decision of Judge Hornby in the Bow County Court on 12 October 2006, quashing the decision of the council’s housing review officer on 24 March 2006 that the applicant, Davis Maloba, was not homeless within the meaning of Part VII of the Housing Act 1996. The Law Society appeared as an interested party on the question of costs.
TOULSON LJ said that the provision now contained in s 175(3) was introduced by the Housing and Planning Act 1986 by amendment to the Housing (Homeless Persons) Act 1977 following the decision in R v Hillingdon London Borough Council , Ex p Pulhofer [1986] AC 484. Parliament could not have positively intended by the language used in [those] amendments to create a distinction between a person with unfit accommodation available to him who was living in it and one who was not — a distinction so unreasonable that the majority in Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306 did not consider that any responsible authority could properly take the point. Good sense could be made of s 175(3) by construing the words “reasonable for him to continue to occupy” as synonymous with “reasonable for him to occupy for a continuing period”, ie for the future, whether or not he is in occupation at the moment of the application or the decision. The second issue concerning s 175(3) was, on the basis that the council had to consider whether it was reasonable to expect the applicant to occupy the accommodation which was available to him, was the council entitled to consider reasonableness solely in terms of the size and structural quality of the accommodation and its amenities? There was no reason for importing such a limitation. There might be other reasons why it would not be reasonable. If so, there was no ground to suppose that Parliament intended such reasons to be ignored. The question whether it would be reasonable to expect a person to occupy particular accommodation was necessarily a fact specific question. It was clear that the council’s review officer adopted an over restrictive approach to the matters which had to be considered. Nowhere did she consider whether it was reasonable to expect the applicant to relocate to Kampala after he had been living here since 1997 and had acquired British citizenship. In so doing she misdirected herself.
Carnwath LJ delivered a concurring judgement and Sir Igor Judge P, agreed with both judgments.
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