Orejudos v Royal Borough of Kensington & Chelsea

The provision of temporary accommodation by a public authority may involve conditions affecting an applicant’s freedom to stay elsewhere without engaging the right to respect for private life under Article 8. The question is whether the conditions are an ordinary and necessary part of providing the accommodation. A requirement to give a satisfactory reason for an overnight absence may qualify, but does not remove, the freedom to sleep elsewhere. Where accommodation is paid for on a daily basis, conditions enabling the authority to control costs and assess whether it remains needed are ordinary and necessary. The court therefore need not reach Article 8(2), although the conditions would in any event have been lawful, directed to a legitimate aim and proportionate.

The appellant was accepted as homeless and owed the full duty under section 193 of the Housing Act 1996. He was placed in hotel and hostel accommodation under agreements requiring him to stay each night, or to obtain permission by explaining any absence in advance. After repeated absences, the authority cancelled his booking and decided that he had become intentionally homeless. Its review upheld that decision.

The County Court dismissed his appeal on points of law. On further appeal, the central issue was whether the accommodation conditions engaged Article 8 of the Convention and, if so, whether they were justified under Article 8(2). A separate challenge to the adequacy of the authority’s inquiry was not pursued on this appeal.

1. Appeal dismissed. The requirement imposed on a homeless applicant using temporary hotel or hostel accommodation was not an interference with Article 8 private life. It did not require the applicant to sleep in the allocated room every night. In substance, it required him to provide a satisfactory reason if he chose, or had chosen, not to do so.
2. Article 8 private life is broad and includes freedom to live as a person chooses, but it does not protect every act or measure which adversely affects that freedom. The private sphere necessarily has an interface with the public sphere. In the context of accommodation provided from public funds, the public authority has a legitimate interest in the terms on which accommodation is supplied, given the need to accommodate other homeless persons and control public expenditure.
3. The relevant inquiry was whether the conditions were an ordinary and necessary part of providing accommodation. The daily charging structure made it necessary and lawful for the authority to know whether the accommodation was being occupied. It could thereby control costs, cancel or negotiate the booking where appropriate, and consider whether the accommodation remained genuinely needed.
4. The condition was not invalid merely because it was not a conventional landlord-and-tenant term. Its validity had to be assessed against the particular type of bed-and-breakfast accommodation and the relationship between the applicant and the authority. The condition arose directly from those circumstances.
5. It was unnecessary to decide Article 8(2). However, if that issue had arisen, the conditions would have been in accordance with the law, directed to the legitimate aims identified in Article 8(2), and proportionate to enabling the authority to discharge its statutory accommodation duties. The separate requirement to sign the register was not a separate ground of appeal and was not determined.
6. Lord Justice Chadwick and Lord Justice Auld agreed with Lady Justice Arden. The appeal was dismissed with costs, with the ordinary order under section 11 of the 1999 Act concerning the publicly funded appellant’s costs.

• Court of Appeal (Civil Division) — Appeal by the applicant, with permission from Brooke LJ, against the order of Her Honour Judge Mayer in the Barnet County Court dated 24 April 2003. The Court of Appeal dismissed the appeal with costs.
• Barnet County Court — The judge dismissed the appeal against the authority’s review decision and rejected the Article 8 challenge. The judgment’s text gives no citation for that order.
• Royal Borough of Kensington & Chelsea — On 1 October 2002, the authority upheld its decision that the applicant had become intentionally homeless and that its section 193 duty had been discharged.