Law Report: Council has duty to house 'homeless' unborn child: Regina v Newham London Borough Council, Ex parte Dada Queen's Bench Division (Sir Louis Blom-Cooper QC) 15 July 1994

An unborn child is a 'person who might reasonably be expected to reside' with a homeless person.

Sir Louis Blom-Cooper QC, sitting as a deputy judge of the Queen's Bench Division, quashed the council's rejection of the applicant's reasons for refusing accommodation.

In 1993 when the applicant was eight months' pregnant, she and her husband were informed by the council that they were to be offered a permanent home as homeless persons in priority need.

Before the baby was born, they were offered the tenancy of a one- bedroom property. Shortly after the baby was born, they rejected the offered accommodation on the grounds that it was a one- bedroom flat.

The council remained satisfied that its offer of accommodation, excluding from its consideration the imminent arrival of the baby, was reasonable.

Christian Moll (Irving Brown & Daughter) for the applicant; Steven Woolf (council solicitor) for the council.

SIR LOUIS BLOM-COOPER QC said that the question raised on the application for judicial review was whether the unborn child would be 'any other person who might reasonably be expected to reside' with the unintentionally homeless person for the purposes of section 75 of the Housing Act 1985.

The ordinary or natural meaning of the word 'person' excluded the unborn, but that might be departed from so as to include a child en ventre sa mere if that would secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date: Elliot v Joicey (1935) AC 209.

Where the question was a matter of statutory construction, the court's task was to determine whether Parliament intended to include the unborn child in the statutory language.

The homeless persons legislation was designed for the express purpose of bringing and keeping families together.

The Act supported the familial notion and referred to 'family associations'.

Given that legislative framework, the judicial inclination was to say that an unintentionally homeless husband and wife, or partners, awaiting the arrival of their baby were entitled to assume the accommodation being made available to them would accommodate the extra person, and that since section 75 was phrased in futuro - 'might reasonably be expected' - the person would linguistically include an expected baby.

On a construction of section 75, Parliament intended to depart from the strict rule that person must mean a living person, and would include a child en ventre sa mere.

All that was required of the local authority was an acknowledgment, when performing its duty to make available suitable accommodation, that it must take account of the impending addition to the homeless person's family.

Indeed, section 59(1)(a) defined a pregnant woman as having a priority need, and as a person who qualified, therefore, for housing accommodation.

The priority need arose from the very fact of a woman with child.

It would be odd if the homeless person had to occupy accommodation that would be rendered unsuitable almost immediately after taking up occupancy, and to await a transfer to suitable accommodation with all the delay and domestic disruption involved. The council's decision would be quashed.

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