Waltham Forest v Maloba

Accommodation available to a homelessness applicant must be disregarded if it would be unreasonable for the applicant to occupy it for a continuing period. This applies whether or not the applicant occupies, or has previously occupied, the accommodation.

Reasonableness under section 175(3) of the Housing Act 1996 is not confined to the accommodation’s physical condition, size or amenities. It is a fact-specific assessment which may include its location and the applicant’s personal circumstances. An authority therefore misdirects itself if it treats overseas accommodation as reasonable without considering whether the applicant could reasonably be expected to relocate there.

The respondent applied to the appellant housing authority for assistance under Part VII of the Housing Act 1996. The authority decided that he was not homeless because accommodation at his family home in Kampala was available and reasonable for his family to occupy.

On an appeal under section 204, the Bow County Court quashed that decision as unreasonable. The authority appealed to the Court of Appeal. The principal issues were whether section 175(3) applied to available accommodation which the applicant did not currently occupy and whether reasonableness was confined to the accommodation’s physical characteristics. A separate appeal concerned the refusal to stay the county court’s costs order pending a fresh homelessness decision and any later appeal.

1. The appeal was dismissed. Toulson LJ held that section 175(3) of the Housing Act 1996 applies whether or not the applicant currently occupies, or has previously occupied, the available accommodation. The words “reasonable for him to continue to occupy” mean reasonable for him to occupy for a continuing period. The contrary majority observations in Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306 were obiter and were not accepted.

2. The alternative construction would produce statutory incoherence. A person who reasonably left accommodation, and therefore was not intentionally homeless under sections 191 and 177, could otherwise cease to be homeless merely because the same unreasonable accommodation remained available. It would also create an irrational distinction between people who were and were not already occupying unsuitable accommodation. The adopted construction preserved symmetry between homelessness and intentional homelessness.

3. Reasonableness is not confined to the accommodation’s size, structure or amenities. The question is fact-specific and may include safety, location and the applicant’s personal circumstances. The reference in section 175(1) to accommodation in the United Kingdom “or elsewhere” addresses availability. It does not make the location irrelevant to the distinct assessment of whether occupation would be reasonable.

4. The review officer adopted an unduly narrow legal approach. She considered the Kampala property’s availability and amenities but failed to consider whether it was reasonable to expect the respondent, a British citizen who had lived in the United Kingdom for many years, to relocate there. The decision was therefore properly quashed. It was unnecessary to decide whether the authority could rationally have found that the property remained available.

5. Carnwath LJ agreed, adding that a purposive construction required “continue to occupy” to encompass both occupation and continued occupation. The President agreed with both judgments. The matter required reconsideration by the authority.

6. The costs appeal was also dismissed. The court had power to stay a costs order, but there should be no general practice of staying costs awarded to a successful publicly funded applicant until completion of a fresh administrative decision and any later statutory appeal. The county court judge’s case-specific exercise of discretion disclosed no error.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 1281, dismissed the authority’s substantive and costs appeals, upheld the order quashing the review decision, and required the homelessness application to be reconsidered.
• Bow County Court: HHJ Hornby allowed the applicant’s appeal under section 204 of the Housing Act 1996, quashed the authority’s review decision and ordered the authority to pay two thirds of the applicant’s costs.
• Housing authority review: The authority confirmed its decision that the applicant was not homeless because accommodation in Kampala was available and reasonable for his family to occupy.