L A W R E P O R T; Housing association can provide accommodation for the homeless

Regina v Hertsmere Borough Council, Ex parte Woolgar Queen's Bench Division (Sir Louis Blom-Cooper QC) 3 May 1995

A local housing authority's duty to secure accommodation for a person who was unintentionally homeless and in priority need can be performed by a registered housing association, provided the local authority retains its duty to decide whether the person is entitled to such accommodation.

Sir Louis Blom-Cooper QC dismissed an application for judicial review of the council's offer of accommodation to the applicant under the Housing Act 1985.

In 1994 the council's housing stock was transferred to two housing associations. The council retained nomination rights to the housing amounting to 50 per cent of vacancies.

The applicant, who was on the housing waiting list, wrote to one association for accommodation in the Bushey area, as well as applying to the council under the 1985 Act. The council decided, on the basis of section 62 inquiries carried out by the housing association on behalf of the council, that she was unintentionally homeless and in priority need and the council had a duty to provide accommodation.

The housing association offered her accommodation in Borehamwood, but the applicant refused the offer as she wanted to live in Bushey. The council informed the applicant that the offer of accommodation was reasonable and no further offers would be made.

She applied for judicial review of the council's decision on the ground that the council's duty to secure accommodation under section 65 could not be performed by a housing association.

Simon Farrell (Carruthers & Co, Cambridge) for the applicant; Martin Young (Borough Solicitor) for the council.

SIR LOUIS BLOM-COOPER QC said that in R v West Dorset District Council and another, Ex p Gerrard [1994] 27 HLR, Roger Henderson QC, sitting in the High Court, decided that the local authority's duty under section 62 to inquire into cases of homelessness could not be delegated to a housing association. The complaint here was that the council's full housing duty under section 65 of securing that accommodation became available could not be performed by a housing association.

The starting point of the question to what extent the performance of statutory obligations was transferable was section 72, which provided for co-operation with a housing authority by a housing association under section 72(a). Section 72 was uniformly about collaboration as between local government agencies and with voluntary housing agencies. Section 72 did not, however, disturb the vital distinction between the local authority's decision-making in relation to its various duties and the performance of its duties.

Section 72 preserved the exclusively statutory duties of decision-making to the local housing authority. By imposing a duty on a housing association to give assistance to a local authority authority in carrying out duties towards homeless persons, Parliament intended that the recipient of the assistance - the local housing authority - should possess the correlative right to receive the fruits of such assistance.

The reason for omitting section 64, which provides for notification of a reasoned decision, from the duties listed in section 72(a) was simply because only the local housing authority could perform the duty to give such notice, accompanied by a reasoned decision. Like all duties of decision- making, that duty could not be devolved on an agent. That was clearly acknowledged by this council.

Since the council's housing stock was transferred, it no longer operated its own housing waiting list or register. The lists were maintained by the housing associations. Residents in the borough might apply direct to the housing association, but such applications did not have any effect on a subsequent application to the council should a resident become homeless and entitled to rights under Part III of the 1985 Act.

So long as all decision-making within Part III was kept exclusively within the local authority, there seemed no basis for reading into section 72 any limitation on the exercise of all powers of investigation being legitimately performed by an outside agency which was statutorily acknowledged.

Having considered the guidance from the Department of Environment, Large Scale Voluntary Transfers Guidelines, issued in December 1993, and the Code of Guidance referred to in the Act, the two agreements entered into by the council and the housing associations preserved the council's exclusive decision-making duty. There was nothing which violated section 72. The submission that this was an unlawful transfer of the non-transferable duty of the council to secure accommodation for the applicant was rejected.

Although the court was bound to follow previous decisions, relevant parts of the code of guidance and department of environment guidelines were not referred to in the Gerrard decision, and so the exception to the rule of binding precedent could be relied on.

The council in offering the applicant accommodation in Borehamwood performed its duty under section 65(2) and in the process did not exceed its powers under section 72 to seek assistance from the housing association in finding such accommodation.

Ying Hui Tan, Barrister