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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Hillingdon LBC, ex p. Puhlhofer [1986] UKHL 1 (06 February 1986)
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Cite as: [1986] AC 484, [1986] UKHL 1

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/246

    Puhlhofer (A.P.) and another (A.P.) (Appellants) v. London
    Borough of Hillingdon (Respondents) (England)

    JUDGMENT

    Die Jovis 6 Februarii 1986

    Upon Report from the Appellate Committee to whom was
    referred the Cause Puhlhofer (A.P.) and another (A.P.)
    against London Borough of Hillingdon, That the Committee had
    heard Counsel on Wednesday the 4th and Thursday the 5th days
    of December last upon the Petition and Appeal of Ricky and
    Angela Puhlhofer both of De Porres Hotel, Sheepcote Road,
    Harrow, Middlesex, praying that the matter of the Order set
    forth in the Schedule thereto, namely an order of Her
    Majesty's Court of Appeal of the 24th day of July 1985, might
    be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioners might have such other
    relief in the premises as to Her Majesty the Queen in Her
    Court of Parliament might seem meet; as also upon the Case of
    the London Borough of Hillingdon lodged in answer to the said
    appeal; and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Civil Division) of the 24th day of July 1985
    complained of in the said Appeal be, and the same is hereby,
    Affirmed and that the said Petition and Appeal be, and the
    same is hereby, dismissed this House: And it is further
    Ordered That the Costs of the Appellants be taxed in
    accordance with Schedule 2 to the Legal Aid Act 1974.

    Cler: Parliamentor:


    6 February 1986

    HOUSE OF LORDS

    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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