The Court of Appeal held that a reviewing officer had failed to discharge the Public Sector Equality Duty when considering whether a property was suitable for a disabled applicant
Articles About The Case
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In a nutshell this case concerns an application for emergency injunction from the High Court over the telephone in circumstances which were found to be inappropriate. The Claimant's solicitor and counsel were criticised for at best having failed to give the Judge the whole picture so that they had in effect misled him. The case is important reading for any lawyers applying for emergency injunctions. It is still be used [at the time of writing in 2016] by local authorities to argue that emergency injunctions are being obtained in appropriately. As a result it is important for counsel to keep a detailed attendance note of their telephone application when obtaining an out of hours Order.
The claimant fled with her children from domestic violence in her matrimonial home and she gave up the secure housing association tenancy of that home. The council decided that she had become homeless intentionally. It notified her by letter dated 23 August 2007 that it would only provide accommodation for her until 21 September.
The claimant applied for a review and her solicitors asked for accommodation pending the outcome of that review (Housing Act 1996 section 188(3)). The council declined. Accommodation was withdrawn on 21 September and eventually the claimant was street homeless.
On the evening of 28 September 2007 her solicitors obtained a without notice injunction by telephone from the duty judge requiring the council to accommodate. On the council’s application, a High Court judge set aside the order. There had been material non-disclosure to the duty judge and, in any event, the injunction was not warranted as the underlying judicial review claim was without merit. The judgment gives useful guidance to practitioners on the making of urgent injunction applications.
This summary is from Garden Court Chambers News & Views - October 2007
Nearly Legal 2007 - Homelessness and Ex Parte Injunctions - A Warning
Law Society Gazette Article 2008 - Abusing the system
Cambridge Law Digest
Mr and Mrs Puhlhofer were living with their two young children temporarily in bed and breakfast accommodation in a guest house. They had one single bedroom with no means of washing clothes or cooking. They applied to the local authority for accommodation as homeless persons because the room was inadequate for their needs. The council decided that they were not homeless or threatened with homelessness within the meaning of the Housing (HP) Act 1977, s.1.
The Court of Appeal
In the Court of Appeal Ackner LJ (supporting the judgment of Hodgson J) held that the word “accommodation”:
…cannot mean simply premises in which the applicant and his family are presently lodging. In my judgment the accommodation must be such that it is reasonable for the applicant and his family to continue to occupy it, having regard to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he has applied (at p 493).
The House Of Lords
The House of Lords upheld the local authority’s decision. In deciding whether or not an applicant was homeless, the local authority did not have to consider whether any existing accommodation was appropriate or reasonable.
The consequence of the decision in Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless.
This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority’s duty to provide them with accommodation
Corrrection of the House of Lords Error via the Housing and Planning Act 1986
During the passage of the Housing and Planning Act 1986, Baroness David backed by Shelter sought tenaciously to tackle the injustice that resulted from the decision in Puhlhofer. The successful amendment enlarged the definition of homelessness to include the requirement that accommodation must be reasonable to continue to occupy. Section 14(2) of the Act amended the Homelessness Act 1977 so as to add the requirement that the accommodation available to a person had to be "suitable" for them.
Significantly the predecessor provisions to ss 206 and 210 of the Housing Act 1996 – (discharge of functions by local authorities and suitability of accommodation with reference to fitness standards) were also brought in under the Puhlhofer amendment.
7 July 2015 Doughty Street Chambers Seminar Material The End of Puhlhofer? copy
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The court considered the nature of the assessment required of a housing auithority when application was made by a person claiming to be homeless. Simon Brown J said: ‘The duty to make necessary inquiries is not a duty to make all inquiries in fact necessary before the truth can be ascertained. A council which makes numerous inquiries can in my judgment only be attacked for failing to making one more if it failed to make an inquiry which no reasonable council could have failed to regard as necessary.’