Sharp v London Borough of Brent

Under Part VII of the Housing Act 1996, a homeless applicant is entitled to suitable accommodation, not a particular property. Where an authority discharges that duty by offering accommodation under Part VI, the statutory review and any section 204 appeal remain confined to the legality of the suitability decision.

The court cannot reassess allocation priorities, require a different property, or compare the offer with accommodation that might be more suitable. Article 8 may be relevant where a person is required to leave an existing home. Lawfulness of the home, the legislative housing scheme, the rights of other applicants and the authority’s margin of discretion are material to proportionality.

After the respondent’s mother died, the respondent sought to succeed to the council tenancy of 63 Pharamond. The council rejected that claim, obtained a possession order and accepted that she qualified for assistance as a homeless person in priority need whose homelessness was unintentional.

The council offered alternative accommodation, ultimately offering 29 Joules House as suitable accommodation in discharge of its duty under Part VII of the Housing Act 1996. On further review, the council upheld that decision. His Honour Judge Latham allowed the respondent’s statutory appeal, holding that the council had confused the statutory schemes, mishandled Article 8 and lacked sufficient allocation evidence. The central issue was whether the review decision lawfully determined the suitability of the accommodation offered.

The appeal was allowed unanimously and the county court’s order was set aside. Lord Justice Laws gave the principal judgment, with Lord Justice Longmore agreeing. Lord Justice Simon Brown agreed with the result but expressed a narrower view on Article 8.

1. Part VII entitlement. A homeless applicant’s entitlement under Part VII of the Housing Act 1996 is to suitable accommodation. It is not an entitlement to remain in, or to be offered, any particular property. The council’s duty under section 193 was therefore capable of being discharged by the offer of 29 Joules House if that accommodation was suitable.
2. Scope of review and appeal. A section 204 appeal is confined to points of law arising from the review decision. The court’s jurisdiction was limited to the legality of the council’s decision that the accommodation offered in discharge of section 193 was suitable. It did not extend to reconsidering the council’s Part VI allocation priorities, requiring a different property, or comparing the offered accommodation with another property that might have been more suitable. The court referred to ex parte Sacupima 33 HLR 1 in support of this distinction.
3. Separate statutory functions. Parts VI and VII impose distinct duties and confer distinct functions. Section 193(6)(c) permits a Part VII duty to end when the applicant accepts an offer under Part VI, but that statutory overlap does not blend the two schemes or enlarge the county court’s section 204 jurisdiction.
4. Succession history. The council was entitled to take account of its earlier lawful conclusion that the respondent had no succession entitlement and had attempted to mislead it. That history was relevant background to whether an exceptional case existed in which the council could discharge its Part VII duty only by allowing her to remain at 63 Pharamond.
5. Article 8. Lord Justice Laws held that 63 Pharamond was the respondent’s home in the autonomous Convention sense and that requiring her to leave was, on its face, an interference with Article 8(1). Chapman v United Kingdom (2001) 33 ECHR 18 showed that the lawfulness of the establishment of the home was highly relevant to proportionality, while Article 8 did not confer a right to a home. Following Sheffield City Council v Smart [2002] HLR 639, the legislative housing scheme ordinarily struck the balance under Article 8(2), leaving local authorities a relatively wide margin. The decision was justified by the need for a fair and equitable housing policy and the protection of the rights and freedoms of others. Lord Justice Simon Brown considered Article 8 inapplicable to the suitability question, but agreed in any event that recovery of possession could be justified by the respondent’s dishonesty and the council’s proper interest in controlling its housing functions.

The respondent was ordered to pay the appeal costs, with her contribution assessed as nil, and the costs below after 26 July 2002. Execution of the possession warrant was stayed for 21 days. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division). On 14 April 2003 the appeal was allowed and the county court’s order was set aside.
• Willesden County Court. On 5 November 2002 His Honour Judge Latham allowed the respondent’s appeal under section 204 of the Housing Act 1996 against the council’s further review decision.
• London Borough of Brent review. On 26 July 2002 the council’s further review upheld the offer of 29 Joules House as suitable accommodation and treated the Part VII duty as discharged upon refusal.