This house is not a home

One of the key hurdles an applicant must overcome to activate a local authority’s duty to provide accommodation is that he must be homeless. Section 175 of the Housing Act 1996 (HA 1996) provides that a person is not homeless if he has accommodation available for his occupation in the UK or elsewhere. However, pursuant to s 175 (3), it must be reasonable for him to continue to occupy that accommodation In the recent case of Waltham Forest London Borough Council v Maloba [2007] EWCA Civ 1281, [2007] All ER (D) 32 (Dec), the Court of Appeal provided guidance on the interpretation of HA 1996, s175 (3), which defines both homelessness and threatened homelessness (see box below). Mr Maloba was born in Uganda. In 1989 he came to the UK and was granted British citizenship in 1997. In 1999 Mr Maloba, on a visit to Uganda, met his wife. In 2001 they had a child and in 2002 they were married in Uganda. For two years thereafter Mr and Mrs Maloba lived in an annexe at the Maloba family home in Uganda. The house itself was lived in by Mr Maloba’s brother and one of his three sisters and their respective families. In 2004 Mr and Mrs Maloba and their daughter came to the UK. In 2005 Mr Maloba approached WalthamForest’s Housing Department (the Local Authority) for assistance. Mrs Maloba had entered the UK on a visitor’s visa. As such Mrs Maloba was not eligible for housing assistance pursuant to HA 1996, s 185. However, if Mr Maloba satisfied the criteria of homelessness his daughter’s position as a dependant child potentially made him a person with priority need pursuant to s 189.

On his initial application for housing assistance Mr Maloba had stated that he did not own, rent or have access to property anywhere abroad. However, in subsequent communications with the council he provided information about the property in Uganda. On that basis the council, pursuant to s 175, informed Mr Maloba that he was not homeless because he had accommodation abroad which he was entitled to occupy and that it was reasonable for him to occupy this accommodation. Following an unsuccessful review of this decision Mr Maloba, pursuant to HA 1996, s 204, appealed against the decision. The appeal was allowed on the basis that the council’s decision that the accommodation in Uganda was reasonable for him to occupy was Wednesbury unreasonable. The council appealed against the judge’s decision.

CONSTRUCTION OF S 175

The key question for the Court of Appeal was the proper construction of s 175(3). Does s 175(3) only apply if the applicant is currently living in the alternative accommodation? In Begum (Nipa) v Tower Hamlets LBC (2000) WLR 306, [1999] All ER (D) 1189 the majority view of the Court of Appeal concluded obiter that the use of the words “to continue” in s 175 (3) had the effect that the subsection could only apply if the person was in actual occupation of the relevant accommodation. As Lord Justice Toulson said in the instant case this would have the following effect:

“On this reading, if at the time of the council’s decision a person was in occupation of accommodation which it would not be reasonable for him to continue to occupy, the fact that he was living there would not prevent him from being homeless within the meaning of the Act; but the opposite would apply if he had left the property, so long as it remained available for his occupation. In the latter case, in order to qualify for help under the Act he would have to take up the accommodation which it would not be reasonable for him to continue to occupy, whereupon he would become statutorily homeless.”

INTENTIONS COUNT

The Court of Appeal also had difficulties with the interpretation of HA 1996, s 175 (3) as set out by the majority in Nipa Begum because of the effect of HA 1996, s 191. Section 191 is concerned with intentional homelessness, and reads:

“The construction preferred by the majority in Nipa Begum leads to the paradoxical situation whereby a person who has left accommodation in circumstances which did not make him homeless intentionally because it was unreasonable to expect him to remain there is nevertheless not homeless at all if he is able to return to the property which he reasonably left.”

In the instant case the Court of Appeal’s view was that good sense could be made of s 175 (3) by construing the words “reasonable for him to continue to occupy” as synonymous with “reasonable for him to occupy for a continuing period”, meaning for the future, whether or not he was in occupation at the moment of the application or decision. Was the council entitled to consider reasonableness solely in terms of the size, structural quality and the amenities of the accommodation? The appeal judges felt that there was no good reason for importing such a limitation. The local authority had not considered whether or not it was reasonable to expect Mr Maloba to relocate to Uganda after he had been living in the UK for a number of years. The judge at first instance had thus been right to quash the local authority’s decision. The Court of Appeal in Maloba interpreted sub-s (3) so that a person need not be in actual occupation of the property for a court to consider whether or not it was reasonable to occupy that accommodation. The court also made it clear that the housing authority has to consider more than just the size, structural quality and the amenities of alternative accommodation under consideration. In Maloba, the fact that Mr Maloba had lived in the UK for a number of years and that the alternative accommodation was in Uganda were also relevant factors.