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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough Of Hackney v Ekinci [2001] EWCA Civ 776 (24 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/776.html Cite as: [2002] HLR 2, [2001] EWCA Civ 776

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM SHORDITCH COUNTY COURT
(HIS HONOUR JUDGE GRAHAM QC)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 24th May 2001

LORD JUSTICE PILL:

1. This is an appeal against a decision of His Honour Judge Graham QC sitting at Shoreditch County Court on 4 July 2000. The judge allowed an appeal against a decision of the London Borough of Hackney ("the Council") who are the local housing authority with duties under the Housing Act 1996 ("the 1996 Act"). They decided on 7 January 2000 that Mr Riza Ekinci ("the applicant") did not have a priority need for accommodation within the meaning of that term in section 189 of the 1996 Act. The judge held that the applicant did have a priority need because Mrs Serpil Ekinci, his wife, was a "dependent child" within the meaning of that term in section 189(1)(b).
2. Section 189(1) of the 1996 Act is in that part of the Act which deals with the Council's "interim duty to accommodate" and provides:

"(1) The following have a priority need for accommodation—

(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;

(b) a person with whom dependent children reside or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."

Similar provisions had been included in earlier Housing Acts.

3. Mrs Ekinci was 17 years old at the time the Council took their decision. She was in full time education and was dependent on her husband. It was accepted that she might reasonably be expected to reside with her husband. The issue is whether she was a "dependent child" within the meaning of the section.
4. The judge referred to paragraph 14.2 of the Code of Guidance issued by the Secretary of State. Section 182 of the 1996 Act requires a local housing authority to have regard in the exercise of their functions relating to homelessness and the prevention of homelessness to such guidance. The current Code (December 1996) provides:

"Dependent children need not necessarily be the applicant's own children, but could be, for example, related to the applicant or his/her husband or wife, or adopted, or fostered by the applicant, or related to a person cohabiting with the applicant."

5. There is no definition of the word "child" in the 1996 Act but paragraph 14.2 of the Code of Guidance also provides:

"The 1996 Act does not define dependent children, but authorities may wish to treat as dependent all children under 16 and all children aged 16 to 18, who are in, or about to begin, full-time education or training, or who, for other reasons, are unable to support themselves, and who live at home."

6. In R v Oldham MBC ex p Garlick [1993] AC 509, Lord Griffiths, at p 517, accepted that approach to the definition of child. It follows that, taking the word child in isolation, Mrs Ekinci was a child for present purposes. Lord Griffiths at the same time considered the position of children in the equivalent scheme under the Housing Act 1985. He stated at p 517B:

"Dependent children are not amongst those classified as in priority need. This is not surprising. Dependent children depend on their parents or those looking after them to decide where they are to live and the offer of accommodation can only sensibly be made to those in charge of them. There is no definition of a dependent child in the Act but the Homelessness Code of Guidance for Local Authorities, 3rd ed. (1991), to which local authorities must have regard for guidance (see section 71), suggests in paragraph 6.3 that authorities should normally include as dependent all children under 16 and all children aged 16 to 18 who are in, or about to begin, full-time education or training or who for other reasons are unable to support themselves and who live at home. This seems to me to be sensible guidance and likely to result in families being housed together until the children are reasonably mature. There will obviously be the case from time to time when a child leaves home under the age of 16 and ceases to be dependent on the parents or those with whom he or she was living and such a child may be vulnerable and in priority need by virtue of section 59(1)(c): see Kelly v Monklands District Council, 1986 S.L.T. 169. But however that may be, it cannot possibly be argued that a healthy four-year-old living with parents is other than a dependent child. Such a child is in my opinion owed no duty under this Act for it is the intention of the Act that the child's accommodation will be provided by the parents or those looking after him and it is to those people that the offer of accommodation must be made not to the dependent child."

7. For the applicant, Mr Latham submits that Mrs Ekinci is both a child and a dependent and it follows that she is a dependent child within the meaning of section 189. Section 189(1)(b) is unambiguous. There is no justification for the addition of the words: "unless the child is the applicant's spouse", especially when the legislative intent is to promote family life and to avoid the splitting of families.
8. The judge accepted that submission stating:

"In my judgment, on a proper interpretation of section 189(1), the term "child" includes a wife under the age of 18 years who is in full-time education. The fallacy of the respondent's argument is its implied assertion that the concepts of "child" and "wife" are incompatible. In fact, there is no such logical inconsistency in the case of a person over 16 but under 18 years of age. There is no reason why a young woman within that age group should not be within the statutory definition of a child and be married. In my view, there is no ambiguity within the context of the legislation and, therefore, the Court should eschew any alternative interpretation."

9. The judge also referred to Article 8 of the European Convention on Human

Rights which provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The judge relied on it, stating:

"At present Mr and Mrs Ekinci are not living together. They are prevented from enjoying family life in its most basic meaning for lack of accommodation at which they can cohabit. They are impecunious and unable to acquire a home from their own resources. The interpretation advanced in support of the appeal would enable them to obtain accommodation, where they could live together, which would conduce and promote to family life and privacy."

Mr Latham however does not assert that Article 8, which I would regard as law to be applied in this case, creates a right to housing beyond that provided in the 1996 Act.

10. In support of his construction of section 189(1)(b), Mr Latham further submits:

(a) a child, even if married, retains the protection provided in the Children Act 1989;

(b) specific provision in made in the Social Security Contributions and Benefits Act 1992, (Schedule 9, paragraph 3), for the exclusion of benefit in respect of a child who is married. There is no such exclusion in the 1996 Act;

(c) on a contrary view of section 189(1)(b), difficult questions would arise when, for example, the child is the sibling or nephew or niece of the applicant.

11. For the Council, Mr Bhose refers to the "vulnerability" provision in section 189(1)(c) which would cover Mrs Ekinci if she was indeed vulnerable. The section deals with priorities and does not create a priority for an applicant where no vulnerability exists, merely because his wife is 17 years old. Mr Bhose's central submission is that paragraph (b) is concerned with the parent/child relationship, broadly defined, and not that between spouses.
12. I accept the submission of Mr Bhose. A local housing authority have an interim duty to accommodate under section 188(1) of the 1996 Act, if they have reason to believe that "an applicant may be homeless, eligible for assistance and have a priority need". Section 189 defines the categories of persons who have a priority need, that is a priority over other applicants for accommodation provided on an interim basis. In R v Kensington and Chelsea Royal Borough Council ex p Amarfio (1995) 27 HLR 543, the question of marriage did not arise but when considering the expression "dependent children" in section 59(1) of the Housing Act 1985, the equivalent of section 189(1) in the 1996 Act, Nourse LJ, at p 544, bore in mind that the purpose of the section was "to identify, amongst those already homeless, those who have a priority need for accommodation". In those circumstances, Nourse LJ stated that he started from the position "that the expression is to be construed narrowly rather than broadly".
13. In R v Camden LBC ex p Pereira (1998) 31 HLR 317, Hobhouse LJ stated:

"It, thus, has to be borne in mind that any priority system involves striking a balance between the needs of one group of homeless persons and another. To grant priority to one person involves the deferment of another."

14. Provision is also made for priorities in that part of the 1996 Act requiring local housing authorities to have a general allocation scheme. Under section 167(2), the scheme must be framed so as to secure that reasonable preference is given to a number of categories of persons including "families with dependent children" (paragraph (c)). The expression should clearly bear the same meaning in the two sections.
15. In the context of the Act, the priority created in section 189(1)(b) is in my judgment one based on the parent/child relationship. It does not cover an applicant whose dependent spouse happens to come within the extended definition of child in the Code of Guidance. She is capable of being a dependent child in relation to her parents, or someone in a quasi-parental position; she is not capable of being a dependent child in relation to her husband. She is his wife and, in that relationship, she is outside the category of persons contemplated in section 189(1)(b). In reaching that conclusion, I bear in mind that the purpose of the section is to create priorities and I can discern no intention to create a priority over other applicants by reason of the age of the applicant's spouse. It is the existence of the parent/child relationship, broadly defined, which creates the priority. The fact that there may be situations in which it is not easy to decide whether the relationship does come within that category is not a reason for extending the relationship to cover spouses.
16. The judge's reliance on Article 8 was in my judgment misplaced in this context. In Chapman v The United Kingdom (18 January 2001; application number 27238/95) the European Court of Human Rights stated, at paragraph 99:

"It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision".

There is no breach of Article 8(1) in Parliament enacting a scheme of priorities whereby applications for accommodation by homeless persons are to be determined by local housing authorities whose resources will inevitably be limited. In assessing priorities, Parliament is entitled to take into account considerations, such as vulnerability, which may or may not have an impact on family life, as well as those which inevitably do. Equally, there is no breach of Article 8(1) in a Court approaching the legislation as to priorities in the manner Nourse LJ did in Amarfio, Hobhouse LJ in Pereira, or as I would propose to do in this case. Article 8(1) does not require applicants with child spouses to be given priority over applicants with adult spouses or over other categories of applicant.

17. To find in favour of the applicant would undoubtedly "promote [his] private life and privacy", as the judge found, but to hold that he does not have the priority over other applicants which he claims does not involve the lack of the respect contemplated by Article 8(1).
18. Consideration of Article 8(2) does not in my judgment arise but, if I am wrong about Article 8(1), I would hold that a scheme of priorities for allocating scarce housing, and the interpretation of the scheme by the Courts, are interferences necessary for the economic well-being of the country and for the protection of the rights of other applicants.
19. I would allow the appeal.

LORD JUSTICE ARDEN:

20. I agree.

LORD JUSTCE DYSON:

21. I also agree.
ORDER:
22. Appeal allowed
23. Order of His Honour Judge Graham QC to be set aside.
24. No order as to costs here and below.
25. Detailed assessment of funded client's costs here and below.
(Order does not form part of approved Judgment)