Local government – Domestic violence – Homelessness

Birmingham City Council v Ali & ors: Moran v Manchester City Council: HL (Lords Hope of Craighead, Scott of Foscote, Walker of Gestingthorpe, Neuberger of Abbotsbury, Baroness Hale of Richmond, ): 1 July 2009

The House was required to determine two joined appeals against decisions ([2008] EWCA Civ 48, [2008] 1 WLR 2305 and [2008] EWCA Civ 378; [2008] 1 WLR 2387) concerning the duties of local authorities towards homeless people under part VII of the Housing Act 1996.

In the Birmingham case, the first respondent families (F) were living in overcrowded accommodation. The first appellant local authority accepted that they were unintentionally homeless and in priority need, but had left them in that accommodation for months or years before permanent accommodation was found. It appealed against a finding that it was in breach of its duty to find F suitable accommodation. In the Manchester case, the second appellant mother (M) had left home with her children because of domestic violence and gone to a women’s refuge. She had later been evicted, and the second respondent local authority decided that she had become homeless intentionally. M appealed against the decision that it could be reasonable for her to continue to occupy the refuge. The Birmingham local authority and M argued that a person could be regarded as homeless under section 175(3) of the act if he had accommodation which it was not reasonable for him to continue to occupy for as long as he would occupy it if the local authority did not intervene. M further argued that a refuge could not be regarded as ‘accommodation’ at all, and that R v Ealing LBC Ex p Sidhu [1981-82] 2 HLR 45 QBD had been correctly decided.

Held: (1) The language of both sections 175(3) and 191(1) suggested that those sections were looking to the future as well as to the present: they both used the words ‘continue to’ occupy, suggesting that they were looking at occupation over time. The linguistic reasons were reinforced by the policy of the act. Its aim was to provide help to people who had lost the homes to which they were entitled and where they could be expected to stay. Section 175(3) was introduced for a case such as a family who could have been expected to stay a little while longer in their cramped accommodation, but not for the length of time that they would have had to stay there if the local authority had not intervened. In Birmingham, that interpretation had the advantage that the local authority could accept that a family was homeless even though they could actually get by where they were for a while longer, and the local authority could begin to look for more suitable accommodation for them. Otherwise it would have to reject the family’s application for accommodation until they could not stay there any longer, the likely result of which would be that they would have to go into very short-term accommodation, which was highly unsatisfactory. The interpretation also meant that the family did not have to make repeated applications: if an application was rejected on the ground that it was reasonable for the family to stay one more night, they could not apply again until there was a different factual basis for the application. The family could not be expected to judge when the local authority would consider that the tipping point had been reached. In Manchester, the interpretation had the advantage that a woman who had lost her home because of domestic violence remained homeless, even though she had a roof over her head in a refuge: a refuge was a safe haven in which to find peace and support, but it was not a place to live. Accommodation which might be unreasonable for a person to occupy for a long period could be reasonable for that person to occupy for a short period, R v Brent LBC Ex p Awua [1996] AC 55 HL applied. The Birmingham local authority was entitled to decide that F were homeless even though they could stay where they were for a little while, but they were not entitled to leave them there indefinitely: there was bound to come a time when their accommodation could no longer be described as suitable in the discharge of the local authority’s duty under ­section 193(2).

(2) Once it was decided that it would not be reasonable for a woman to continue to occupy her place in a refuge indefinitely, it became unnecessary to decide whether the refuge was ‘accommodation’: women would be homeless while they were in the refuge and remain homeless when they left. There was no need for the approach to the question of accommodation in Sidhu to survive the decisions in R v Hillingdon LBC Ex p Puhlhofer [1986] AC 484 HL and Awua: the concerns raised in Sidhu could be addressed via section 175(3), Sidhu superseded and Puhlhofer considered.

(3) The Court of Appeal’s view that it was unlawful for the Birmingham local authority to give priority to those who had been placed in temporary accommodation over those such as F, who had been left in their current accommodation, could not be supported in so far as it was based on the conclusion that the latter could not lawfully have been left in their current accommodation. However, that view was also based on the fact that the local authority’s duty to each group under part VII of the act was identical, and therefore it was unlawful to prioritise one group over the other.

Appeals allowed.

Ashley Underwood QC, Catherine Rowlands (instructed by in-house solicitor) for the first appellant; Jan Luba QC, Adam Fullwood (instructed by Shelter Greater Manchester Housing Centre) for the second appellant; Jan Luba QC, Zia Nabi (instructed by Community Law Partnership) for the first respondent; Clive Freedman QC, Zoe Thompson (instructed by in-house solicitor) for the second respondent; Stephen Knafler, Liz Davies (instructed by Sternberg Reed) for the first intervener; Martin Chamberlain (instructed by Treasury Solicitor) for the second intervener.