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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sharp v London Borough of Brent  EWCA Civ 779 (14 April 2003)
Cite as:  HLR 65,  EWCA Civ 779
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE LATHAM)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
|LONDON BOROUGH OF BRENT||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A MOORE (instructed by J D Spicer & Co, London NW6 4JD) appeared on behalf of the Respondent
(AS APPROVED BY THE COURT)
Crown Copyright ©
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
.... .... ....
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years ('the minimum period'), subject to the following provisions of this section.
After the end of that period the authority may continue to secure that accommodation is available for occupation by the applicant, but are not obliged to do so (see section 194).
.... .... ....
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant-
.... .... ....
(c) accepts an offer of accommodation under Part VI (allocation of housing).
.... .... ....
(7) The local housing authority shall also cease to be subject to the duty under this section if-
(a) the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI, and
(b) the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal."
Mr Moore this morning also referred specifically to section 206 of the Act of 1996 which like section 193 is within Part VII:
"(1) A local housing authority may discharge their housing functions under this Part only in the following ways-
(a) by securing that suitable accommodation provided by them is available".
Thereafter in October 2000 the council offered the respondent accommodation at an address in Harlesden. She declined to accept it and the offer was withdrawn. A further offer of premises in Cricklewood suffered the same fate. The council reconsidered the respondent's application to succeed her mother as tenant of 63 Pharamond, determined again to reject it and made an offer of accommodation in fulfilment or purported fulfilment of their duty under section 193 of the flat at 29 Joules House which like Pharamond was part of their housing stock. This was first done by letter of 24 January 2001 which has been provided to us this morning. It is not necessary however to read it: it was superseded by later correspondence. The council maintained its position by solicitor's letter of 29 March 2001. That letter offered the respondent an opportunity to make further representations.
"(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating housing accommodation ....
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to-
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,
(b) people occupying housing accommodation which is temporary or occupied on insecure terms,
(c) families with dependent children,
(d) households consisting of or including someone who is expecting a child,
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.
The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future."
And it is provided that the local authority is to, in effect, distribute its housing resources in accordance with the allocation scheme.
"The Council has fully reconsidered Ms Sharpe's request to remain at 63 Pharamond whether in discharge of the Council's minimum 2 year duty under Part VII of the Housing Act 1996 ('the Act'), or as a 'permanent' allocation under Part VI of the Act.
Having given the matter very great thought, and having re-considered all of the many representations made by Ms Sharpe, her doctors, and other advocates on your Client's behalf, we regret to inform you that the Council has upheld its decision not to discharge duty under Part VII by allowing Ms Sharpe to remain in the premises any longer, nor to offering your Client a secure tenancy of the premises as an allocation under Part VI of the Act. In other words, the Council is standing by the decision communicated to [you] by solicitors letter of 24.1.01, that it intends to recover possession of the premises."
Then on page 2 of the letter under "Procedural History" I read just two short paragraphs:
"Ms Sharpe has had a good deal of assistance in presenting her case. By letter dated 24.01.01 the Council, through its solicitors, notified your Client's former Solicitors, Williams & Co of its decision that it was going ahead to evict Ms Sharpe. Williams & Co made further representations by letter of 2.2.01, alleging that Ms Sharpe's medical condition had deteriorated. By letter of 13.2.01 Williams & Co made further, detailed, representations. They stated, in particular, that Ms Sharpe was due to see Dr Mallett 'again very shortly for a full and detailed re-assessment'. They implored the Council to review its decision and assured it that further medical evidence was to be submitted.
We replied on 29.3.01, maintaining the Council's decision not to 'discharge' Part VI or VII duty by allowing Ms Sharpe to remain in the premises. However, within that letter the Council stated that, with a view to concluding the whole matter, it was willing to afford Ms Sharpe the opportunity to make further representations, including the submission of medical evidence .... The Council has considered that there are 2 discrete (but linked) issues for it to consider - (i) entitlement for consideration under the Housing Review 2000 policy on non-statutory 'successions', and (ii) discharge of the Council's obligations by the offer of a tenancy of these premises, or by an offer elsewhere.
.... .... ....
Qualification under the 'second succession' policy
The Council sees no reason to depart from, and affirms its decision of 24.1.01 ....
.... .... ....
The Council, we regret to say, simply does not believe Ms Sharpe's assertions. Accordingly, no question arises as to whether Ms Sharpe might qualify under the Housing Review Policy 2000 policy on non-statutory concessions. In any case such consideration would be discretionary.
Discharge by offering a tenancy of the premises
It is important to stress that Ms Sharpe had no right to remain in the premises [that is of course 63 Pharamond], after her mother's death. Ms Sharpe in fact recognised this by consenting to an immediate order for possession on 16.8.00.
Ms Sharpe's request to be allowed to remain at premises, has been considered. The Council has, and operates, an allocations policy which determines the allocation of housing, for both current tenants, and homeless applicants. The application of the policy to all applicants ensures fair and equal treatment to applicants and facilitates the Council's discharge of duties. It has never been a practice or procedure of the Council that an applicant for housing had been able to 'choose' the property which is to be allocated to them. Nor, in Ms Sharpe's case, is the Council satisfied that there is anything in the medical or other evidence to suggest that this is an exceptional case that might begin to warrant the Council adopting such a course (which if applied to others could lead to chaos, bad-feeling and allegations of 'preferential' treatment). It continues to conclude that there is nothing which compels it to reach a decision that Ms Sharpe must not, on any account, be required to move to other, suitable permanent accommodation. The Council's views on the medical information has been set out in its previous letters.
In fact there is a further very good reason not a adopt such a course in this case. The Council has concluded (as we state above) that Ms Sharpe sought to mislead it as to the 'second' succession. Given this conclusion, it would be wholly invidious if Ms Sharpe were to secure for herself (by the Part VI/VII route) premises she had sought wrongfully to secure (through the 'second' succession route). The Council's discharge of its housing functions, and the operation of its policies, is dependent upon those applying for assistance being truthful to it, and correctly recording their circumstances. We regret the Council does not feel that Ms Sharpe has done that.
.... .... ....
Accordingly, the Council considers (if it in law is bound to reason in this way) that to require you to move is necessary to preserve the integrity of the allocations scheme and of truthfulness in the making of applications for housing assistance (whether by succession or under Part VII). It ensures equality of treatment and fairness amongst all those to whom the Council owes duties. It is a necessary and proportionate decision to take.
Offer of 29 Joules House
The Council further affirms that Ms Sharpe be offered a secure tenancy of 29 Joules House, as an allocation under Part VI of the Act. The Council considers that 29 Joules House is suitable for Ms Sharpe's needs."
"(1) If an applicant who has requested a review under section 202-
(a) is dissatisfied with the decision on the review.
.... .... ....
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision."
.... .... ....
(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."
The respondent proceeded to exercise her right of appeal against the review decision of 26 November 2001. I should make it clear that this was not the appeal which came before His Honour Judge Latham, and so ultimately to this court: the appeal against the decision of 26 November 2001 was adjourned upon the council undertaking to carry out a further review. The further review culminated in a decision letter of 26 July 2002 and it was against this further review decision that the appeal to Judge Latham was brought.
"Having concluded that 29 Joules House would be suitable for you, ordinarily that would be the end of the matter. However, in your case I have to consider whether all your circumstances taken together (including medical & social aspects) lead me to the conclusion that -- despite my conclusions about 29 Joules House -- the Council could only really discharge its statutory duty to you by letting you remain at 63 Pharamond. If that was my conclusion then, despite my clear conclusion on the suitability of 29 Joules House, I might have to re-assess the suitability of the discharge.
The issue of allowing you to remain (or be allocated this property) has been well ventilated over the last 18 months or so, and I am conscious that this is a review against the decision to offer 29 Joules House, not some sort of challenge to the decision not to allow you to stay at 63 Pharamond. That decision was taken a long time ago by the Council -- I refer you to the letter of 6 August 2001 in particular. I do not repeat its contents, and I agree with the reasoning about non-statutory successions. I also agree with the sentiments expressed about the importance of applying the Council's policies fairly to all. It seems to me (as it did to my colleagues on that occasion) that allowing someone the right to remain in Council accommodation where that right does not exist, unless through some special arrangement, would contravene our policies as well as legislation. It would require a compelling case .... "
Then, missing a paragraph, Mr Moone proceeded to address the medical evidence which was before him in writing. This is what he said:
".... on the issue I have to decide, I do not see that Dr Latcham's opinion has in any material way softened. His opinion is that the traumas you have suffered in your life are the same as anyone in your position would experience, and that whilst it would be distressing for you to leave 63 Pharamond, this distress would then subside. His view is that a large component of your current distress is due to uncertainty as to the future. Nothing about his report leads me to conclude that there will be dire consequences from your moving from 63 Pharamond.
As I would expect, given Mr Kirkby's previous opinion, his current opinion differs. However, Mr Kirkby does accept (as Dr Latcham states) that uncertainty is a source of anxiety, and that it operates in your case. Whilst he gives a number of reasons why other factors significantly outweigh that of uncertainty, I am unconvinced - particularly in the light of Dr Latcham's report. For instance, for all that is said about 63 Pharamond having been your mother's home for a number of years, it has not been your home for very long at all (only since October 1998, even on your own account). Further, your concern as to crime at 29 Joules House has not been expressed in the past as a reason for not wanting to live there - which I would have expected had it been a substantial reason for not accepting that offer, and wanting to stay at Pharamond.
I have come to a clear conclusion that I prefer and find convincing the professional opinion of Dr Latcham, over that of Dr Kirkby and other health professionals who have supported your case over the years. It is clear to me, in circumstances such as these, that there will always be a certain amount of distress, anxiety etc in requiring someone to move - particularly where there is a degree of emotional attachment to the property. However, as indicated in Dr Latcham's report, this is an inevitable consequence of the circumstances and it is likely that this will dissipate over time. To suggest that something more serious could arise is, in my opinion, mere speculation."
Thereafter Mr Moone shortly addressed a discrete issue concerning the floor level of 63 Pharamond which, being at the sixth floor, was higher than recommended by the district's medical officer. The letter ended with Mr Moone's conclusion that the offer of 29 Joules House was reasonable and suitable to the respondent's needs and the council's duty to the respondent under section 193 was discharged upon her refusal to accept it.
"It appears to me that (in the way that Mr Moore has submitted) the council, in the review decision of Mr Moone that is attacked in his adopting that earlier thought process [that must be a reference, I think, to the letter of 6 August 2001] confused the issues about statutory succession to the tenancy that Miss Sharp lost on, with issues about suitability of accommodation and allocation of accommodation. When Mr Moone says that 'this would contravene our policies well as legislation', there is a not a mandatory basis for rejecting Miss Sharp's case. In so far as it is put on policy, both as to the integrity of the council's housing priority scheme and what appears to be a policy of punishing those who include dishonest grounds in their application, Mr Moore is right that Mr Moone lapsed into misdirecting himself on irrationality for the purposes of issues in this appeal."
The reference here is to the following part of Mr Moone's decision letter of 26 July 2002 which is very short. I will re-read it for convenience:
"That decision was taken a long time ago by the Council - I refer you to the letter of 6 August 2001 in particular. I do not repeat its contents, and I agree with the reasoning about non-statutory successions. I also agree with the sentiments expressed about the importance of applying the Council's policies fairly to all. It seems to me (as it did to my colleagues on that occasion) that allowing someone the right to remain in Council accommodation where that right does not exist, unless through some special arrangement, would contravene our policies as well as legislation."
(1) this passage in the review letter of 26 July 2002 betrays a confusion between (a) the statutory scheme under the Housing Act 1985 and the council's policy relating to a person's claim to succeed to the tenancy over another, (b) Part VI of the Housing Act 1996 and (c) Part VII of the Housing Act 1996; and
(2) Mr Moone should have treated the council's earlier finding that the respondent had sought to lie her way into the succession to her mother's tenancy as legally irrelevant to the matters before him.
"7. In that passage of the decision letter I was simply summarising and recording the history of the decisions in which the Council had decided the Appellant was not to be allowed to remain at 63 Pharamond. .... The Council's 'policies' I was referring to was the Council's 'second succession' policy, and the 'legislation' was those parts of Part IV of the Housing Act 1985 which provided that there was no right to more than one statutory succession.
8. It was common ground that the Appellant had no entitlement to succeed under Part IV Housing Act 1985, and that whilst she had claimed entitlement under the policy, the Council had decided against her in decisions of 24 January 2001 and 6 August 2001 ....
9. All that I was suggesting in [the] criticised passage is that given there was no entitlement to a statutory succession, and given that the Council had already disbelieved the Appellant's assertions as to her residence at 63 Pharamond so that 'no question' arose as to whether she might qualify under the second succession policy, it would require a compelling factual case before the Council was in a position to conclude that the only property which it could lawfully offer to her in discharge of its duties under the Housing Act 1996, was 63 Pharamond."
"I accept that Miss Sharp has article 8 of the European Convention on Human Rights protection at 63 Pharamond as her home, as is conceded by Mr Findlay, counsel for the local authority.
I accept Mr Moore's point made in his skeleton argument that on the European Human Rights Convention issues in this case the burden lies on the local authority to justify their decision, and the local authority and Mr Bhose are wrong if they try to throw the onus over on to Miss Sharp in establishing European Human Rights Convention protection issues. That point is made in paragraph 18.0 at page 13 of Mr Moore's skeleton argument."
(1) it would constitute an interference with the respondent's right for respect to her home under Article 8 to require her to move out from 63 Pharamond from the offer being made at 29 Joules House;
(2) such an interference could only be justified if the council were able to demonstrate that it was within Article 8(2) "necessary in a democratic society" to achieve one of the legitimate aims listed in subparagraph (2), such as the right to the protections and freedoms of others; and
(3) the council could not demonstrate that. Accordingly it was said that their decision amounted to a violation of Article 8.
"When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established lawfully or unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong."
Moreover, it is plain -- see Chapman paragraph 99 -- that Article 8 does not in terms provide a right to a home.
"I accept Mr Moore's submissions that the statutory framework means that, in deciding to house Miss Sharp out of their own housing stock, the case reverts to or (as Mr Moore submits) overlaps into allocation criteria issues and Part VI and VI of the Housing Act 1996 in that sense are blended together at that point."
Then I read this passage on the same page at line 21:
"I have to consider whether there was sufficient material available before Mr Moone to resolve allocation issues: for example, for an understanding of the points priority scheme and the points that Miss Sharp had, that material is not material [before me] in the bundle. There is no sufficient material available as to what the pool of available one-bedroom flats were for allocation at the time that Miss Sharp was allocated the flat at 29 Joules House, which I think must be taken to include 63 Pharamond for that purpose. That is clearly very important in relation to whether I can decide the issues in this case myself or whether the case must be sent back for another section 202 review."
"any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e)."
The pronoun "him" here refers of course to the claimant for housing, here the respondent. The only relevant provision within paragraph (b) or (e) there referred to is section 193. The authority's duty under section 193 is to offer accommodation which they consider suitable. It is only their judgment on that question that was subject to the appeal on law to His Honour Judge Latham.
ORDER: Appeal allowed and the order below be set aside. The costs of the appeal be paid by the respondent under section 11(1) of the Access to Justice Act 1999, the respondent's contribution being assessed as nil. The costs below after 26 July 2002 be paid by the respondent. Detailed assessment of the respondent's costs. Execution of the possession warrant stayed for 21 days. Permission to appeal to the House of Lords refused.
(Order not part of approved judgment)