Birmingham City Council (Appellants) v Ali (FC) and others (FC) (Respondents) Moran (FC) (Appellant) v Manchester City Council (Respondents)

The statutory question whether accommodation is reasonable to continue to occupy looks to the future as well as the present. A person may therefore be homeless although able to remain temporarily, if continued occupation for as long as would be necessary without local-authority intervention would be unreasonable.

The duty under section 193(2) of the Housing Act 1996 may be performed through temporary accommodation. Suitability depends on its anticipated duration, and accommodation suitable in the short term may become unsuitable through time. An authority cannot discharge that duty merely by placing the applicant within its housing-allocation scheme.

A person fleeing domestic violence will ordinarily remain homeless while temporarily living in a refuge. Losing the refuge place does not ordinarily amount to intentional homelessness.

These conjoined appeals concerned duties owed to homeless applicants under Parts 6 and 7 of the Housing Act 1996.

In the Birmingham proceedings, six large families remained for substantial periods in overcrowded, defective or otherwise unsuitable accommodation after the council accepted that it owed the full section 193(2) duty. Collins J granted declaratory and mandatory relief in R (Aweys) v Birmingham City Council [2007] EWHC 52 (Admin). The Court of Appeal dismissed the council's appeal in [2008] EWCA Civ 48, [2008] 1 WLR 2305.

In the Manchester proceedings, Ms Moran fled domestic violence and entered a women's refuge. After her eviction for alleged misconduct, the council found that she had become intentionally homeless. A county court quashed that decision, but the Court of Appeal reversed that result in [2008] EWCA Civ 378, [2008] 1 WLR 2387.

The central questions were whether the statutory expression “reasonable to continue to occupy” permits a prospective assessment; whether temporarily occupied accommodation can satisfy the full housing duty; and whether refuge accommodation can found a decision of intentional homelessness.

1. Disposition. Baroness Hale and Lord Neuberger delivered the joint leading opinion. Lord Hope, Lord Scott and Lord Walker agreed. Both appeals were allowed unanimously, subject in the Birmingham appeal to declarations preserving part of the Court of Appeal's conclusion concerning the allocation policy.

2. Prospective assessment of homelessness. Per Baroness Hale and Lord Neuberger, the words “continue to occupy” in sections 175(3) and 191(1) of the Housing Act 1996 require consideration of occupation over time. Applicants may be homeless although they can remain for a short period, where it would be unreasonable to expect them to remain for as long as they would have to without the authority's intervention.

3. The section 193(2) duty. Temporary accommodation may satisfy the full duty. Suitability is related to anticipated duration: accommodation may be suitable in the short term but unsuitable in the medium or long term. Birmingham could therefore leave a family temporarily in its existing accommodation, but could not do so indefinitely or automatically until a council house became available. Whether a period has become excessive is primarily for the authority, having regard to resources and available housing. A court may nevertheless intervene when the conditions or elapsed time show that enough is enough.

4. Parts 6 and 7. The duty to operate a lawful allocation policy is distinct from the individual duty to secure suitable accommodation for a homeless applicant. Placement in an allocation band performs the Part 7 duty only if it will produce suitable accommodation before continued occupation of the existing accommodation becomes unreasonable. Part 6 permits rational priority between groups receiving reasonable preference. On the evidence, however, Birmingham had not justified preferring applicants in new temporary accommodation over applicants left temporarily in accommodation that was no more satisfactory.

5. Women's refuges. Per Baroness Hale and Lord Neuberger, a woman who has fled domestic violence will ordinarily remain homeless while living in a refuge, because a refuge is normally a temporary haven rather than somewhere she can reasonably occupy indefinitely. Loss of that place, even through misconduct, therefore does not ordinarily constitute intentional homelessness. Ms Moran's intentional-homelessness finding was quashed and replaced by a finding that she had not become intentionally homeless.

6. Additional and obiter reasoning. Lord Hope, with Lord Scott agreeing, preferred the formulation in Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925 that suitable accommodation must be secured within a reasonable period determined by the circumstances and available supply. The leading opinion also indicated, obiter, that the reasoning in R v Ealing London Borough Council, ex p Sidhu which denied that a refuge was “accommodation” could not survive the later authorities, although its humane result could now be reached through section 175(3).

1. House of Lords: In Birmingham City Council v Ali and others; Moran v Manchester City Council [2009] UKHL 36, both appeals were allowed unanimously. The House made declarations in the Birmingham proceedings and substituted a finding that Ms Moran had not become intentionally homeless.
2. Court of Appeal—Birmingham proceedings: The heading records an appeal from [2008] EWCA Civ 1228. The body of the judgment also records that the council's appeal from Collins J was dismissed in R (Aweys) v Birmingham City Council [2008] EWCA Civ 48, [2008] 1 WLR 2305. The House rejected the Court of Appeal's conclusion that the families could not lawfully remain temporarily at home, but upheld the narrower objection to the unjustified allocation priority.
3. High Court—Birmingham proceedings: Collins J held the allocation policy unlawful and made mandatory orders requiring offers of suitable accommodation: R (Aweys) v Birmingham City Council [2007] EWHC 52 (Admin).
4. Court of Appeal—Manchester proceedings: In [2008] EWCA Civ 378, [2008] 1 WLR 2387, the court held that a refuge could be accommodation which it was reasonable to continue to occupy and restored the intentional-homelessness conclusion. The House reversed that result.
5. County Court—Manchester proceedings: Mr Recorder Rigby quashed the reviewing officer's decision and remitted the matter because the officer had failed to consider R v Ealing London Borough Council, ex p Sidhu and the statutory guidance.