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

The Banksy image in Folkestone before it was vandalised
Life and Style

Sales of the tablet are set to fall again, say analysts

football West Brom vs Man Utd match report: Blind grabs point, but away form a problem for Van Gaal
Arts and Entertainment
Gotham is coming to UK shores this autumn
tvGotham, episode 2, review
Have you tried new the Independent Digital Edition apps?
ebooksAn unforgettable anthology of contemporary reportage
Arts and Entertainment
Bloom Time: Mira Sorvino
tvMira Sorvino on leaving movie roles for 'The Intruders'
First woman: Valentina Tereshkova
peopleNASA guinea pig Kate Greene thinks it might fly
Brian Harvey turned up at Downing Street today demanding to speak to the Prime Minister

Met Police confirm there was a 'minor disturbance' and that no-one was arrested

Arts and Entertainment
George Lucas poses with a group of Star Wars-inspired Disney characters at Disney's Hollywood Studios in 2010

George Lucas criticises the major Hollywood film studios

Chris Grayling, Justice Secretary: 'There are pressures which we are facing but there is not a crisis'

Does Chris Grayling realise what a vague concept he is dealing with?

Life and Style
A street vendor in Mexico City sells Dorilocos, which are topped with carrot, jimaca, cucumber, peanuts, pork rinds, spices and hot sauce
food + drink

Trend which requires crisps, a fork and a strong stomach is sweeping Mexico's streets

Life and Style
The charity Sands reports that 11 babies are stillborn everyday in the UK
lifeEleven babies are stillborn every day in the UK, yet no one speaks about this silent tragedy
Blackpool is expected to become one of the first places to introduce the Government’s controversial new Public Space Protection Orders (PSPOs)

Parties threaten resort's image as a family destination

Life and Style
Northern soul mecca the Wigan Casino
fashionGone are the punks, casuals, new romantics, ravers, skaters, crusties. Now all kids look the same
Life and Style

I Am Bread could actually be a challenging and nuanced title

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Year 5 Teacher

£80 - £140 per day: Randstad Education Leeds: Year 5 Teacher KS2 teaching job...

Software Developer

£35000 - £45000 Per Annum Pensions Scheme After 6 Months: Clearwater People So...

Systems Analyst / Business Analyst - Central London

£35000 - £37000 per annum + Benefits: Ashdown Group: Systems Analyst / Busines...

Senior Change Engineer (Network, Cisco, Juniper) £30k

£30000 - £35000 per annum + Benefits: Ampersand Consulting LLP: Senior Change ...

Day In a Page

Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Ranked seventh in world’s best tourist cities - not London, or Edinburgh, but Salisbury

Salisbury ranked seventh in world’s best tourist cities

The city is home to one of the four surviving copies of the Magna Carta, along with the world’s oldest mechanical clock
Let's talk about loss

We need to talk about loss

Secrecy and silence surround stillbirth
Will there be an all-female mission to Mars?

Will there be an all-female mission to Mars?

Women may be better suited to space travel than men are
Oscar Pistorius sentencing: The athlete's wealth and notoriety have provoked a long overdue debate on South African prisons

'They poured water on, then electrified me...'

If Oscar Pistorius is sent to jail, his experience will not be that of other inmates
James Wharton: The former Guard now fighting discrimination against gay soldiers

The former Guard now fighting discrimination against gay soldiers

Life after the Army has brought new battles for the LGBT activist James Wharton
Ebola in the US: Panic over the virus threatens to infect President Obama's midterms

Panic over Ebola threatens to infect the midterms

Just one person has died, yet November's elections may be affected by what Republicans call 'Obama's Katrina', says Rupert Cornwell
Premier League coaches join the RSC to swap the tricks of their trades

Darling, you were fabulous! But offside...

Premier League coaches are joining the RSC to learn acting skills, and in turn they will teach its actors to play football. Nick Clark finds out why
How to dress with authority: Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear

How to dress with authority

Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear
New book on Joy Division's Ian Curtis sheds new light on the life of the late singer

New book on Ian Curtis sheds fresh light on the life of the late singer

'Joy Division were making art... Ian was for real' says author Jon Savage
Sean Harris: A rare interview with British acting's secret weapon

Sean Harris: A rare interview with British acting's secret weapon

The Bafta-winner talks Hollywood, being branded a psycho, and how Barbra Streisand is his true inspiration
Tim Minchin, interview: The musician, comedian and world's favourite ginger is on scorching form

Tim Minchin interview

For a no-holds-barred comedian who is scathing about woolly thinking and oppressive religiosity, he is surprisingly gentle in person
Boris Johnson's boozing won't win the puritan vote

Boris's boozing won't win the puritan vote

Many of us Brits still disapprove of conspicuous consumption – it's the way we were raised, says DJ Taylor
Ash frontman Tim Wheeler reveals how he came to terms with his father's dementia

Tim Wheeler: Alzheimer's, memories and my dad

Wheeler's dad suffered from Alzheimer's for three years. When he died, there was only one way the Ash frontman knew how to respond: with a heartfelt solo album