PUHLHOFER (A.P.) AND ANOTHER (A.P.)
(APPELLANTS)
v.
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.
– 1 –
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
– 2 –
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
– 3 –
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.
– 4 –
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,
– 5 –
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
– 6 –
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.”
– 7 –
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.
– 8 –
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.
– 9 –
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