| LOCAL GOVERNMENT — Homeless persons — Priority need — Housing authority distinguishing between “street homeless” and “homeless at home” — Accommodation of homeless at home found unsuitable but temporary replacement accommodation not provided— Whether authority discharging duty to secure accommodation — Housing Act 1996 (as amended), ss 175(3), 193(2), 210
R (Aweys and others) v Birmingham City Council [2008] EWCA Civ 48; [2008] WLR (D) 36
CA: Ward, Arden and Smith LJJ: 7 February 2008
In the case of the homeless in priority need it was not lawful, for the purposes of the duty to secure accommodation pursuant to s193 (2) of the Housing Act 1996, for a local housing authority, pending permanent re-housing, to leave those found to be homeless but not on the streets within the very accommodation found to be unsuitable for occupation.
The Court of Appeal so stated, inter alia, when dismissing the appeal of the defendant local housing authority, Birmingham City Council, from a decision of Collins J on 26 January 2007 ([2007] EWHC 52 (Admin)), in judicial review proceedings in the Administrative Court of the Queen’s Bench Division, declaring that: (i) the housing authority was in breach of its duty to the claimants, Abdishakur Aweys and five others, to secure suitable accommodation for them; and (ii) the housing authority’s allocations policy was unlawful.
WARD LJ said that the housing authority had decided to leave at home those who might be called the “homeless at home”, as opposed to the “street homeless”, until something better turned up, and had adopted an allocations policy giving preference to the street homeless. The appeal concerned the “main” duty to homeless persons with priority need, eligible for assistance and who were not homeless intentionally, governed by s193 of the 1996 Act; and where the claimants’ families were found homeless because they lived in over-crowded accommodation which it would not be reasonable for them to continue to occupy, the housing authority owed to each of them that duty to secure that accommodation was suitable for their occupation. The housing authority purported to discharge that duty by leaving them where they were while it searched for accommodation large enough to house the families suitably; and the housing authority submitted that there was nothing wrong in deciding, on the one hand, that, when answering the homelessness question under s175(3) of the 1996 Act, the family could not reasonably be expected to remain in overcrowded accommodation indefinitely, yet, on the other hand, that the overcrowded accommodation was still to be regarded as suitable within the meaning of s 210 of the 1996 Act provided it was offered for a short time only, so that the same accommodation was both unsuitable for one purpose, yet suitable for another. The claimants, however, submitted that the statutory scheme did not permit or contemplate an applicant simply being left where he was, even temporarily; and if he was left there, the applicant would continue to be homeless because it remained unreasonable for him to continue to occupy that accommodation; and he must be treated as having no accommodation. Accordingly the question was whether the duty under s 193(2) was discharged by leaving a homeless family in its current accommodation where the family had been found homeless because it would not be reasonable for it to occupy those same premises; and the answer to the question was “No”. The duty arose as soon as the local housing authority was satified that the applicant was homeless, eligible for assistance and had priority need, and was not satisfied that he became homeless intentionally. A person was not homeless if he had accommodation suitable for his occupation; but although the claimants’ premises remained “available for occupation”, they were nevertheless rendered homeless because it would not be reasonable for them to continue to occupy that accommodation, and by virtue of s175(3) of the 1996 Act they were not to be treated as having accommodation. From the moment of the decision that they were homeless the law treated them as being without accommodation; and the s193(2) duty was to ensure that accommodation was available for occupation by applicants. The words in s193(2) replicated the words in s175(1) and “accommodation available for occupation” had to bear the same meaning in both sections. Thus if the premises were not “accommodation” for s175(3) purposes in determining whether the claimants were homeless, they could not be “accommodation” for s193(2) purposes for discharging the obligation there imposed. It followed that the housing authority was in breach of its main duty if it did no more than leave a homeless family at home. Turning to the allocations scheme, those homeless at home ought to have been in temporary accommodation, just as the street homeless had been placed in such accommodation: there was no justification for a distinction being drawn where the same duty was owed to each and their treatment should have been the same. There was no justification for having the homeless in different bands, as had been the case.
ARDEN LJ gave a judgment concurring in the result. SMITH LJ agreed with both judgments.
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