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DE FALCO V CRAWLEY BOROUGH COUNCIL: CA 1980

March 22, 2017 dls 0 Local Government,

De Falco v Crawley Borough Council

Silvestri v Crawley Borough Council

Court of Appeal

12 December 1979

[1979 D. No. 2376][1979 S. No. 5429]

[1980] Q.B. 460

Lord Denning M.R. , Bridge L.J. and Sir David Cairns

1979 Dec. 3, 4, 5, 6; 12

Local Government—Housing—Homeless persons—E.E.C. nationals with families leaving home in Italy to come to England to work—Prior accommodation arrangements breaking down—Applications to local housing authority as homeless persons with priority need—Local authority's decision of "homeless intentionally"—Four—day period given to make own arrangements—Actions for declarations that decisions invalid—Summons for interim relief ordering authority to provide accommodation—Relevance of departmental Code of Guidance—Remedy for breach of housing authority's statutory duty— Housing (Homeless Persons) Act 1977 (c. 48) ss. 4 (2) (b) (3) (b), 17 (1) (4)

1 In 1979 two Italian nationals living in Naples but unable to find work there came to England bringing with them their wives and infant children. The first applicant had arranged to share a brother's house; the second had the prospect of renting a flat; but both arrangements broke down. The families lived for short periods with relatives or friends; and both applicants obtained work in the area of the respondent housing authority where there was a housing shortage. By September 1979 both families had been required to leave their accommodation. The applicants applied to the housing authority as homeless persons with a priority need within section 2 (1) of the Housing (Homeless Persons) Act 1977 . The housing authority, having ascertained that under E.E.C. regulations they were, as employed nationals of a member state, entitled to "all the rights and benefits accorded to national workers in matters of housing...", complied with section 3 (4) by putting the families into local guest houses and proceeded to make "appropriate inquiries" as required by section 3 (1) and (2) . On November 2, 1979, they wrote to each applicant, as section 8 requires, notifying them that though satisfied that each had been rendered homeless in September *461 and had a priority need for accommodation "the council is of the opinion that you became homeless intentionally because you came to this country without having insured that you had permanent accommodation to come to"; that they must therefore leave the guest houses by November 6; and that they would thereafter get no help from the authority.

Section 17 (1) of the Act provides that "... a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation... available... and which it would have been reasonable for him to continue to occupy." The Code of Guidance issued by the relevant government departments (to which under section 12 housing authorities "shall have regard") recommends by paragraph 2.18 that "in assessing whether a person has become intentionally homeless it will be relevant to consider the most immediate cause of that homelessness rather than events that may have taken place previously...."

The applicants left the guest houses on November 6. On November 12 they issued writs in the High Court claiming inter alia, declarations that the decisions (a) that they were intentionally homeless and (b) what period (under section 4 (3) ) would give them a reasonable opportunity of finding accommodation themselves, were invalid. They also applied for an interim injunction ordering the housing authority to provide accommodation. The authority put them back in the guest houses on the date of issue of the writ and maintained them there pending the outcome of the present proceedings. Chapman J., on conflicting affidavit evidence, including evidence for the authority (which was not challenged) that both applicants had given as their reason for coming here their lack of work in Italy and not lack of suitable accommodation there, refused the injunctions.

On appeals by the applicants: -

Held, dismissing the appeals and refusing the injunctions, that, since the Act of 1977 which imposed the duty to house homeless applicants with a priority need also entrusted to the housing authority the decision that they were intentionally homeless within the criteria laid down in section 17 (1) and (3) , the court would only grant interim mandatory relief if at that stage the material before it showed a strong prima facie case that the decision was invalid; that the Code of Guidance recommendation to consider the applicants' position when they were rendered homeless in England in September had no direct statutory force and could be disregarded in the particular cases; and (Bridge L.J. dubitante) that the decision that these applicants became homeless intentionally did not contravene the criteria in section 17 (1) since the reason given for leaving Italy was not lack of accommodation there and that entitled the authority to decide that they had deliberately left accommodation in Naples which it would have been reasonable for them to continue to occupy, and in so deciding, to have regard to the housing position in their own area under section 17 (4) .

American Cyanamid Co. v. Ethicon Ltd.[1975] A.C. 396 , H.L.(E.) not applied.

(2) That though the four-day period given on November 2 for the applicants to find their own accommodation would not have been reasonable compliance with section 4 (3), the *462 considerable extension of that period over the present proceedings had cured that defect. Per Lord Denning M.R. Regard can be had to the whole period in which the applicants were put up in the guest house (post, p. 478F).

Per Bridge L.J. The period contemplated by section 4 (3) commences when the authority's decision is communicated to the applicant and the authority cannot rely on any prior opportunity the applicant had of securing accommodation himself (post, p. 483C-D).

Per curiam. Though the Act itself provides no remedy for a person adversely affected by a breach of statutory duty, it has already been decided that such person could bring an ordinary action for damages in the county court, and there is no reason why in such an action, whether in the county court or the High Court, he could not also claim declarations that a decision was invalid, and an injunction; that, alternatively, he could bring proceedings for judicial review under R.S.C., Order 53 , and in either case could apply for interim relief by way of mandatory injunction ordering the provision of accommodation; but such relief should only be granted where a strong prima facie case of breach of duty is made out at the interlocutory stage (post, pp. 476C-G, 47C-D, 479G - 481A, D-G).

Thornton v. Kirklees Metropolitan Borough Council[1979] Q.B. 626 , C.A. applied.

Decision of Chapman J. affirmed.

The following cases are referred to in the judgments:

• American Cyanamid Co. v. Ethicon Ltd.[1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504 , H.L.(E.).
• Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A. .
• Meade v. Haringey London Borough Council[1979] 1 W.L.R. 637; [1979] I.C.R. 494; [1979] 2 All E.R. 1016, C.A. .
• Reg. v. Bristol City Council Ex parte Browne[1979] 1 W.L.R. 1437; [1979] 3 All E.R. 344, D.C. .
• Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (No. 2)[1972] 2 Q.B. 455; [1972] 2 W.L.R. 1370; [1972] I.C.R. 19; [1972] 2 All E.R. 949 , N.I.R.C. and C.A. .
• Secretary of State for Education and Science v. Tameside Metropolitan Borough Council[1977] A.C. 1014; [1976] 3 W.L.R. 641; [1976] 3 All E.R. 665 , C.A. and H.L.(E.) .
• Thornton v. Kirklees Metropolitan Borough Council[1979] Q.B. 626; [1979] 3 W.L.R. 1; [1979] 2 All E.R. 349, C.A. .
• Tickner v. Mole Valley District Council (unreported), October 29, 1979, Stephen Brown J.

The following additional cases were cited in argument:

• Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208 , H.L.(E.).
• Bristol District Council v. Clark[1975] 1 W.L.R. 1443; [1975] 3 All E.R. 976, C.A. .
• H. K. (An Infant) In re[1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; [1967] 1 All E.R. 226, D.C. . *463
• Hubbard v. Vosper[1972] 2 Q.B. 84; [1972] 2 W.L.R. 389; [1972] 1 All E.R. 1023, C.A. .
• Leary v. National Union of Vehicle Builders[1971] Ch. 34; [1970] 3 W.L.R. 434; [1970] 2 All E.R. 713 .
• Minister of Health v. Bellotti[1944] 1 All E.R. 238, C.A. .
• Morris v. Redland Bricks Ltd.[1970] A.C. 652; [1969] 2 W.L.R. 1437; [1969] 2 All E.R. 576 , H.L.(E.).
• N.W.L. Ltd. v. Nelson. N.W.L. Ltd. v. Woods[1979] 1 W.L.R. 1294; [1979] I.C.R. 867; [1979] 3 All E.R. 614 , H.L.(E.).
• Roebuck v. National Union of Mineworkers (Yorkshire Area)[1977] I.C.R. 573 .
• Shepherd Homes Ltd. v. Sandham[1971] Ch. 340; [1970] 3 W.L.R. 348; [1970] 3 All E.R. 402 .
• Smith v. Inner London Education Authority[1978] 1 All E.R. 411, C.A. .
• Stevenson v. United Road Transport Union[1977] I.C.R. 893; [1977] 2 All E.R. 941, C.A. .

INTERLOCUTORY APPEALS from Chapman J.

The plaintiffs, Vincenzo De Falco and Antonio Silvestri, two Italian nationals employed in England under the provisions of the E.E.C. Treaty , issued writs in the Queen's Bench Division of the High Court on November 12, 1979, claiming against the Crawley Borough Council, declarations (1) that the council had not validly determined that the plaintiffs were intentionally homeless pursuant to section 3 (2) (b) of the Housing (Homeless Persons) Act 1977 ; (2) that the council were under a duty to secure that accommodation became available for the occupation of the plaintiffs and their families pursuant to section 4 (5) of the Act; (3) that the council had not validly determined what period of accommodation available for the plaintiffs' occupation would give them a reasonable opportunity of themselves securing accommodation for their occupation pursuant to section 4 (3) of the Act; an injunction ordering the council to provide accommodation for the occupation of the plaintiffs and their families; damages; and costs. They also applied for interim relief by way of an