B, R (on the application of) v Southwark

For the purposes of Part VII of the Housing Act 1996, imprisonment does not prevent a person from being homeless. A prison cell is not accommodation of the statutory kind because detention gives the prisoner no enforceable right to occupy it. Alternatively, it is not accommodation which it would be reasonable for the prisoner to continue to occupy where release is available, subject only to suitable accommodation. A declaration of homelessness does not itself establish an unconditional duty to provide accommodation: other statutory requirements, including eligibility, must still be determined.

The claimant, aged 17, was detained in a Young Offender Institution under an eight-month detention and training order. He was eligible for early release under a home detention and tagging scheme, but could not be released without suitable accommodation. The local authority initially processed his homelessness application, then decided that he was not homeless because his lawful detention was reasonable accommodation.

The claimant sought judicial review and amended his claim to seek a declaration that the decision was legally erroneous. The central issue was whether a person detained in prison can be homeless within the meaning of Part VII of the Housing Act 1996.

1. Declaration granted. The decision letter of 2 July 2003 was based on an error of law. The claimant was homeless within the meaning of section 175 of the Housing Act 1996.
2. Prison is not accommodation in the statutory sense used in Part VII. Although a prisoner is accommodated in prison in the ordinary sense, Stewart v London Borough of Lambeth 2003 EWCA Civ 753 was authority that prison was not settled accommodation for the purposes of the homelessness provisions. Puhlhofer v Hillingdon London Borough Council [1986] A.C. 484 did not require a different conclusion because it concerned an earlier statutory scheme and did not address imprisonment.
3. Independently, section 175(1) requires accommodation which the person is entitled to occupy, has a licence to occupy, or occupies under an enactment or rule of law conferring a right to remain or restricting recovery of possession. A prisoner has no right to occupy a prison cell in that sense. Imprisonment removes or restricts rights and cannot fall within section 175(1)(a), (b) or (c).
4. Further, if prison could constitute accommodation under section 175(1), section 175(3) would prevent it being treated as such because it would not be reasonable, viewed subjectively, for a prisoner eligible for release subject only to accommodation to remain in prison. The lawfulness of the sentence was immaterial. The approach in R v London Borough of Brent, ex parte McManus [1993] 25 H.L.R. 643 supported that subjective assessment.
5. The declaration did not itself establish an unconditional duty to provide accommodation. The claimant’s eligibility remained unresolved, although the court noted that his age meant that he was in priority need. Costs followed the event, with detailed assessment of publicly funded costs. Permission to appeal was refused by the High Court.

The judgment describes interim orders by McCombe J and Goldring J during the permission stage. The High Court (Administrative Court) granted the declaration and refused permission to appeal; any appeal application had to be made to the Court of Appeal.