Input:
This appeal raises a short point under Part VII of the Housing Act 1996.
The 1996 Act contains a set of provisions dealing with the obligations for housing authorities to those found to be homeless or threatened with homelessness.
They were originally enacted in the Housing (Homeless Persons) Act 1977.
Although there have been significant amendments, the general structure of the provisions has remained largely unaltered, as has the underlying principle that a home is somewhere which can accommodate a family together.
Thus in Din (Taj) v Wandsworth London Borough Council [1983] AC 657, Lord Fraser said: One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all the members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in a hostels while children were taken into care and the family thus split up . (p 668 D G)
That principle is clearly established in the first two sections.
Homelessness is defined by section 175(1) as follows: (1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession (2) . (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
By section 176: Accommodation shall be regarded as available for a persons occupation only if it is available for occupation by him together with (a) any other person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him.
References in this Part to securing that accommodation is available for a persons occupation shall be construed accordingly.
Thus what I shall call the extended meaning of available for his occupation, as defined by section 176, runs through the whole of Part VII of the 1996 Act.
It is relevant not only in establishing whether a person is homeless under section 175, but also for setting the authoritys duty towards him if so found, including both their interim duty to provide accommodation pending a decision (section 188(1)), and (as in the present case) their final duty to someone found to be in a priority need and not intentionally homeless (section 193(2)).
By contrast, no specific standard of accommodation has been laid down by Parliament.
As Lord Brightman said in R v Hillingdon LBC ex p. Puhlhofer [1986] AC 484, discussing the 1977 Act: In this situation, Parliament plainly, and wisely, placed no qualifying adjective before the word accommodation in section 1 or section 4 of the Act, and none is to be implied.
The word appropriate or reasonable is not to be imported.
Nor is accommodation not accommodation because it might in certain circumstances be unfit for habitation for the purposes of Part II of the Housing Act 1957 or might involve overcrowding within the meaning of Part IV.
Those particular statutory criteria are not to be imported into the Homeless Persons Act for any purpose.
What is properly to be regarded as accommodation is a question of fact to be decided by the local authority.
There are no rules.
Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all .
What the local authority have to consider, in reaching a decision whether a person is homeless for the purposes of the Act, is whether he has what can properly be described as accommodation within the ordinary meaning of that word in the English language. (p 517 E G) He added that, while the statutory definition of overcrowding had no relevance, overcrowding was not necessarily a factor to be disregarded altogether: accommodation must, by definition, be capable of accommodating.
If, therefore, a place is properly capable of being regarded as accommodation from an objective standpoint, but is so small a space that it is incapable of accommodating the applicant together with other persons who normally reside with him as members of his family, then on the facts of such a case the applicant would be homeless because he would have no accommodation in any relevant sense. (pp 517 H 518 A)
Some of Lord Brightmans assumptions about the intentions of Parliament
seem to have been falsified shortly afterwards.
Section 14 of the Housing and Planning Act 1986 introduced a requirement to disregard accommodation which it is not reasonable for him to continue to occupy (see now section 175(3) of the 1996 Act, quoted above).
It also introduced a requirement that accommodation provided by the authority should be suitable (see now section 206(1) of the 1996 Act).
In determining suitability the authority were required to have regard to the statutory provisions covering housing standards (see now section 210 of the 1996 Act).
To that extent it mitigated the apparent harshness of the test laid down by the House of Lords in Puhlhofer.
However it did not alter the definition of accommodation as such, nor detract from the authority of what Lord Brightman said about that word taken on its own.
The issue in this case, in short, is to what extent (if at all) the extended meaning of the expression available for his occupation in the 1996 Act implies a requirement that the family be accommodated not only together, but in a single unit of accommodation.
Factual background
The facts are sufficiently summarised in the agreed statement of facts and issues: On 3 June 2004, the Appellants, the London Borough of Camden (the Council) accepted a full duty to secure that suitable accommodation was available for occupation by the Respondent, Ms Sharif, under s.193(2), Housing Act 1996.
The Council accepted that Ms Sharifs father, Mr Sharif Ali, a man in his 60s with some health problems, and her sister, Zainab Sharif (aged 14), lived with Ms Sharif and were therefore part of her household.
Accordingly Ms Sharifs father and sister are entitled to be accommodated with Ms Sharif under the said housing duty.
Ms Sharif and her household were initially accommodated by the Council in hostel accommodation but, in 2004, they were accommodated also under s.193(2) at 83 Lopen Road, London N18 1PT (a 3 bedroom house) under a private sector leasing scheme.
On 6 November 2009, still by way of accommodation under section 193(2), the Council asked Ms Sharif and the household to move to two units (nos. 125 and 132) on the same floor of Englands Lane Residence, London NW3, a hostel used by the Council to accommodate homeless applicants.
Each unit comprised a single bed sitting room with cooking facilities, plus bathroom/w.c.
The two units were separated by a few yards. no. 125 can accommodate two single people; no. 132 is suitable for one.
It was envisaged that Ms Sharif and her sister would sleep in no. 125 and their father in no. 132.
Ms Sharif refused the offer as unsuitable, because it comprised two separate units; due to her fathers medical condition they needed to be able to live as a family in the same unit.
On 23 December 2009 the council confirmed that the offer was considered suitable, although not an ideal living arrangement, and that accordingly their housing obligation to her had come to an end (see section 193(5) of the 1996 Act).
Ms Sharif requested a review of the decision on suitability, again mainly on the grounds of her fathers ill health and the need to provide care for him.
It does not seem to have been suggested that lack of communal facilities as such was an issue.
On 16 February 2010 the council upheld their decision.
The review decision contained a detailed consideration of the facts, including the medical advice received by the Council, which in some respects differed from assertions made on behalf of Ms Sharif.
In particular, the reviewing officer was not persuaded that the distance between the two units was a significant problem: I am not persuaded that your client would experience any significant difficulties in attending her father in a separate flat which your client agrees herself was only a few yards away.
Walking from one flat to another and cleaning on her fathers behalf when necessary would not in my view have been any more challenging than cleaning a three bedroom house and walking up and down the stairs in the house.
I am therefore not persuaded that the accommodation offered to your client was unsuitable as it would be more onerous caring for her sister and father in two separate flats.
At this stage the sole issue was that of suitability; it was not suggested that accommodation in two units was as a matter of law incapable of satisfying the statutory requirement.
Ms Sharif appealed to the London Central County Court on various points of law (both procedural and substantive), as she was entitled to do by virtue of section 204 of the 1996 Act.
The present issue was raised for the first time by an amendment to the original grounds of appeal in the following terms: On a proper construction of section 176 Housing Act 1996 it is not lawful for the authority to purport to discharge its duty to secure accommodation for the appellant under Part VII of the Housing Act by providing separate accommodation for her father being a person who normally resides with her as part of her family.
The appeal was dismissed on 24 June 2010 by HH Judge Mitchell.
He took note in particular of a judgment of Scott Baker J in R v Ealing London Borough Council ex parte Surdonja [1999] 1 ALL ER 566.
In that case the family were housed in two hostels approximately a mile apart.
Noting that the council were obliged to provide accommodation available not only for the claimant but also for his family, the judge had said: In my judgment the obligation is not discharged by providing split accommodation in separate dwellings.
It is the policy of the law that families should be kept together; they should be able to live together as a unit.
I can well see that the obligation could be discharged by, for example, separate rooms in the same hotel, but not I think in two entirely separate hostels up to a mile apart. (p 571).
HH Judge Mitchell saw this as indicating Scott Baker Js view that the obligation could be fulfilled by offering split accommodation within the same building.
He saw that as consistent with the statutory language which required the provision of suitable accommodation, not necessarily accommodation suitable from the perspective of the claimant.
That decision was reversed by the Court of Appeal (Jacob, Wilson and Etherton LJJ) [2011] PTSR 1695.
Etherton LJ, who had granted permission to appeal, also gave the only substantive judgment.
His essential reasoning is encapsulated in the following passage: 17 The accommodation offered by Camden to the applicant comprised two self contained flats, on the same floor of the building, but a short distance apart, one of which was offered for occupation by the applicant and her sister and the other by her father.
On any ordinary use of language, that was not the provision of accommodation which the applicant and her father were to occupy together with one another.
They would be living close by each other, but separate from one another.
No one could reasonably describe them, in such circumstances, as living together with one another.
That ordinary meaning of the legislative language is reflected in the wording of section 176(a) which refers to a person who normally resides with the applicant.
It seems reasonable to suppose that concepts of occupation by the applicant together with another, and residence of the applicant with that other, were intended by Parliament to have a similar meaning.
It cannot be said, on any ordinary use of language, that persons living in separate self contained flats, however close, and not sharing any communal area, are residing together. (emphasis added)
He considered and rejected a number of submissions made on behalf of the council, which it is unnecessary to repeat in detail.
In relation to the judgment in Surdonja, Etherton LJ commented, in para 36, that the reference to separate rooms in the same hotel was quite different from occupation of separate self contained residential units with no sharing of any living areas.
He added: 38.
I recognise, without hesitation, the enormous difficulties faced by housing authorities in attempting to discharge their housing duties, including those under Part VII of the 1996 Act.
Their shortage of housing stock and limited resources and the scale of the problem of homelessness are well known to be acute.
It is obvious that anything which constrains the ability of the authorities to exercise discretion in the management and application of those limited resources and stock will increase the practical difficulties in discharging their duties.
The policy underlying the provisions of Part VII is, however, a matter for Parliament to determine.
That policy is to be ascertained in the usual way by a proper interpretation of the statutory language.
It is well established and common ground that the policy underlying section 176 of the 1996 Act is to keep families together.
The natural meaning of the language used in section 176 is that the policy is to be achieved by the provision of accommodation in which the applicant can reside together with those members of the applicants family who normally reside with the applicant, and not by the provision of two or more separate self contained units of accommodation without any sharing of communal living areas.
To strain the clear language of section 176 in order to enable housing authorities to have greater latitude in the management of their limited resources, by reducing the issue solely to one of suitability in the authoritys view (subject to Wednesbury principles), would be wrong in principle, as a judicial modification of Parliaments policy. (para 38)
The issues in the appeal
Mr Arden QC for the council submits that Etherton LJs construction of the statute went beyond what the words justified and would impose an unwarranted burden on the authority.
He accepted that one of the social purposes behind the statute was to ensure that families could be kept together.
However, that did not necessarily mean in one unit.
The correct question to ask was whether the accommodation, even if not in a single unit, was sufficiently proximate to fulfil that social purpose.
In other words, could the family be described as living together even if accommodated in what was technically more than one unit of accommodation? That interpretation was consistent with the history of the legislation and in particular the judgment of Lord Brightman in Puhlhofer.
The council was particularly concerned at the suggestion that the statutory requirement could only be satisfied by the provision of communal living areas.
Such a requirement would be novel to housing law generally, and there was no proper basis for importing it into this Part of the Act.
Mr Arden referred also to the decision of the House of Lords in Uratemp Ventures Ltd v Collins [2002] AC 301, relating to the definition of a dwelling house let as a separate dwelling in section 1 of the Housing Act 1988.
It was there held that a single room, even without cooking facilities could constitute a dwelling house as defined in the 1988 Act.
Lord Millett said: In both ordinary and literary usage, residential accommodation is a dwelling if it is the occupiers home But his home is not the less his home because he does not cook there but prefers to eat out or bring in ready cooked meals. (para 31).
By analogy, he submitted, neither the word accommodation nor the expression living together can in themselves be read as containing any implication as to the nature of the facilities to be provided.
For the respondent, Ms Lieven QC supports the judgment of the Court of Appeal.
She accepts that Etherton LJ may have gone too far in suggesting that there need to be communal living areas.
However she supports his essential reasoning, based on the ordinary use of language.
The accommodation must be available for living together.
That implies there must at least be somewhere in the accommodation where living together can take place.
The test is objective rather than subjective.
It is an issue of law on which, at least where the primary facts are not in issue, the court is able to substitute its view for that of the authority.
The layout must be such as to facilitate normal family life for those within the scope of the section.
That will normally imply a single unit of accommodation, but she accepts that it may be possible to accommodate a family in two rooms in a hostel, provided there is a space where some degree of shared family life can take place, even if that is limited to some shared cooking facilities.
Discussion
This is a short point which does not permit of much elaboration.
Etherton LJ relied on what he considered to be the ordinary meaning of the statutory language.
In my respectful view, the ordinary meaning does not support that interpretation.
The word accommodation in itself is neutral.
It is not in its ordinary sense to be equated with unit of accommodation.
It is no abuse of language to speak of a family being accommodated in two adjoining flats.
The limitation, if any, must therefore be found in the words available for occupation together with the other members of his family.
The statutory test will be satisfied by a single unit of accommodation in which a family can live together.
But it may also be satisfied by two units of accommodation if they are so located that they enable the family to live together in practical terms.
In the end, as Mr Arden submits, this comes down to an issue of fact, or of factual judgment, for the authority.
Short of irrationality it is unlikely to raise any issue of law for the court.
This legal issue had not been addressed in terms by the Review Officer, because it had not been raised in that form.
However, it is reasonably clear how it would have been answered, since the issue of suitability was clearly treated as including the needs of the family as a unit.
The main obstacle to family living which had been raised was the problem of caring for the father in a separate unit.
That was considered and discounted by the officer.
He thought the two flats were sufficiently close for the problem of communication to be no greater than in a house on two levels.
Ms Lievens submissions seem like an echo of those of counsel for the unsuccessful appellant in Puhlhofer, who submitted that: in order to constitute accommodation the premises must be such as to enable the family unit to reside and carry on the ordinary operations of daily life there . (p 505B).
Any such qualification was rejected by the House.
That remains the position, save to the extent that it is implicit in the requirements of suitability or reasonableness, introduced in 1986.
But those points are not, or are no longer, in issue in the present case.
Further, Ms Lievens interpretation would produce surprising results.
It is to be remembered that the statutory definition of overcrowding is not relevant to the definition of accommodation available for occupation, although it is now relevant to suitability.
Under the Puhlhofer test, a family might be properly accommodated within a single unit even though seriously overcrowded by normal standards.
But on Ms Leivens submission, the authority would not have been able to improve its position by offering it an additional unit next door.
It also has to be remembered that the same definition applies to the temporary accommodation to be provided while a decision is made on the merits of the claim.
It would be odd and potentially onerous if, even while the authority were simply considering the merits of the claimants position, they were unable to house the family in two adjoining units even on a temporary basis.
Furthermore, if as seems to be accepted, the observations of Scott Baker J in Surdonja were correct, it is hard to see why two rooms on different floors of a hotel or hostel would satisfy the council's duty, but two adjacent flats would not.
The presence of locked doors between adjacent flats also cannot be critical as rooms in a hotel or hostel would normally have their own lock.
As to Ms Lievens suggestion that shared cooking facilities might be sufficient, I accept that the observations of Lord Millett in Uratemp (quoted above) may not be of much relevance to what is needed to accommodate a family living together, as opposed to a single person.
In this case there were cooking facilities in both flats.
In practice no doubt they would be shared, particularly if as was suggested the father had limited ability safely to cook for himself.
It would be very odd if removal of a cooker from one flat, so as to leave no option but shared use, would convert what would otherwise be inadequate provision of accommodation into a valid discharge of the authoritys duties.
Of the other cases to which we were referred, I would mention only one: Langford Property Co Ltd v Goldrich [1949] 1 KB 511.
The issue under the Rent Acts was whether two self contained flats let together could constitute a separate dwelling house.
The facts were described in the judgment of Somervell LJ.
The premises consisted of two flats in a single block, which had previously been separately let.
They were on the same floor but not next to each other.
The tenant had taken these two flats as a home for himself and some relatives . his father, mother and a married sister.
He made no structural alterations (p 521).
It was held that they could be treated as constituting together a dwelling house.
The Lord Justice said: In my opinion if the facts justify such a finding, two flats or, indeed, so far as I can see, two houses, could be let as a separate dwelling house within the meaning of the definition.
What happened here was that the tenant wished to accommodate in his home these relatives to whom I have referred, and he wanted more accommodation than could be found or conveniently found in one flat.
He therefore took the two flats and made those two flats his home. [Counsel] suggested at one time that there might be some absurdity, if, say, a man took under a single lease (which does not seem very probable) two flats in widely separated districts; but that case can be dealt with when it arises. (p 517)
Care is always needed in drawing parallels between definitions in different statutory codes.
However I find this passage helpful in relation to the ordinary use of language in a closely analogous context.
Somervell LJ saw no difficulty in describing the two flats as accommodation, in which the family were able to make their home.
He distinguished the position where the flats are in widely separated districts.
This approach is very similar to that of Scott Baker J in the passage I have cited.
Submissions were made to us, on the one hand, as to the serious problems authorities would face in meeting their statutory duties, if the Court of Appeals judgment were upheld; and, on the other, as to the risks of allowing authorities too free a hand in the way in which they can accommodate families.
I find it unnecessary to comment in detail on either aspect.
Although the problems of housing authorities, particularly in urban areas, are well known, there is no specific evidence to support a submission that this particular requirement would pose unacceptable problems.
Mr Arden rightly accepted that, if the law was as the Court of Appeal said it was, the authority will have to comply.
In relation to the second point, I would emphasise the narrowness of the present decision.
It does not give authorities a free hand.
It is still a fundamental objective of the Act to ensure that families can live together in the true sense.
Accommodation, whether in one unit or two, is not suitable unless it enables that objective to be achieved.
I would therefore allow the appeal and restore the judges order.
LORD HOPE
I too would allow the appeal for the reasons given by Lord Carnwath.
We are all agreed that the test which section 176 of the Housing Act 1996 lays down will be satisfied by a single unit of accommodation in which a family can live together.
The question is whether the words available for occupation by him together with the other persons referred to can only be so satisfied.
Do they permit the local authority to accommodate the family in more than one unit of accommodation, so long as it can be said that the units are close enough for them to live together? The words resides with and reside with that follow the phrase I have just quoted serve to emphasise that the accommodation that the test refers to must be such as to enable them all to live together as a family.
But the test does not go further than that.
It does not say that it can only be met by the provision of a single unit.
Parliament has plainly and wisely, if I may adopt Lord Brightmans phrase in R v Hillingdon LBC, Ex p Puhlhofer [1986] AC 484 at 517, refrained from inserting any qualifying words of that kind.
In this situation the question whether the test has been met must be a question for the local authority.
There are, nevertheless, two yardsticks that can be applied.
The first is what must be taken to be the ordinary meaning of the words that the test uses.
The second is the practical one, which follows on the first.
Can it be said, in a practical sense, that all the members of the family are living together, although more than one unit is required to accommodate them? The provision of separate units is not, of course, ideal.
Some measure of inconvenience is bound to result if a single unit cannot be found.
But Parliament has recognised, by refraining from laying down strict rules, that the situations that may confront the local authority will vary from case to case and that it would be unreasonable to prescribe one solution that must be adopted in all cases.
The test is not there to be exploited.
It must be applied reasonably and proportionately.
So long as that is done, the aim of the test will have been satisfied.
LADY HALE
I agree that this appeal should be allowed, for the reasons given by Lord
Carnwath.
I understand that this will seem very harsh to a family who had been housed since 2004 in a three bed roomed house under a private sector leasing scheme and were then expected to accept much less spacious accommodation.
But the suitability of that accommodation is no longer in issue.
The only issue is whether it is available for Ms Sharif to occupy together with her father and her younger sister.
If one accepts that it is open to a local authority to accommodate members of a family in separate rooms in the same hostel or hotel, sharing cooking and/or bathroom facilities with others, then one must accept that it is possible to accommodate them in separate small flats like these, provided that the flats are close enough together to enable them to eat and share time together as a family.
There are passages in the judgment of Etherton LJ which appear to suggest that members of a family are only accommodated together if they have some shared communal living space, in the sense of a shared living room.
That would, of course, be ideal.
And, as was pointed out in Birmingham City Council v Ali; Moran v Manchester City Council [2009] UKSC 36, [2009] 1 WLR 1506, what is suitable for a family to occupy in the short term may not be suitable for them to occupy for a longer period.
But we are not concerned with suitability here.
To require some communal living space is to impose a standard which is too high to expect local authorities to meet across the whole range of statutory provisions to which the together with criterion applies, including the interim duty in section 188 of the 1996 Act.
Many of the hotels and hostels currently used to accommodate homeless people do not have a communal living room.
It is not surprising, therefore, that Mr Arden, on behalf of the local authority, was particularly concerned about this aspect of the Court of Appeals judgment.
No doubt many of us would wish that there were a much larger supply of affordable housing to enable homeless families to be accommodated in the way which we would ideally wish them to be accommodated.
But there is not and the law does not require local authorities to meet a minimum standard which in practice it would be impossible for many of them to provide.
LORD KERR (dissenting)
A home is where a family lives together.
The family unit may comprise many generations or it may consist of merely two people.
But at its heart and foundation lies the family home where its members share experiences and live their lives together.
This is why the notion of providing accommodation for a family to live as a single unit, not dispersed or living apart, occupies such a central place in the homelessness legislation of the last century.
The Housing Act 1996 imposes a duty to provide accommodation which is available to be occupied by one person together with members of his or her family.
The legislation clearly contemplates that the accommodation should be provided to an individual.
But it is also intended that the accommodation provided to that person should be capable of housing all the members of that persons family together.
That idea is buttressed by the requirement in section 176 of joint occupation.
Accommodation is only to be regarded as available for occupation if it is available for occupation by the person to whom it is provided together with any person who normally resides with him as a member of his family.
There is nothing in the legislation which suggests or implies that the statutory duty will be fulfilled by providing accommodation which, taken in combination with other accommodation, is capable of housing together all the members of the family.
Nor does the legislation authorise the provision of different units of accommodation which a family, if well disposed to do so, can use on different occasions for shared family activities.
If living together as a family is to mean anything, it must mean living as a distinct entity in a single unit of accommodation.
Ms Lieven QC was right to submit that the language of section 176 calls for focus on the accommodation, not on the use to which a particular family might put it.
The accommodation must be of a character that will allow all members of the family to live together within it.
She was also right that section 176 imposes an objective requirement, namely, that the accommodation is, as a matter of fact, capable of occupation by the members of the family together.
Togetherness in this context connotes a combination of people into a condition of unity.
There must be a single unit of accommodation to provide for that condition.
The appellant suggested that the local authority may exercise a judgment as to whether a series of units are suitable to permit members of the same family to live in a condition of sufficient proximity so that they can function as a family unit. (One may observe, as an aside, that sufficient proximity is quite different as a concept, and may be diametrically different in practice, from living together.) The appellant advanced this argument by seeking to assimilate the duty under section 176 with other Part 7 duties.
This is misconceived.
Ms Lieven was again right in her submission that other Part 7 duties, where they involve an element of discretion, are expressly provided with that facility in the language of the Act.
The duty under section 176 is quite different.
It is an obligation to provide accommodation, the physical dimensions of which are sufficient to allow it to be occupied by the person to whom it is made available together with the members of his or her family.
Some limited judgment may be exercised by the local authority in discharging that duty but that judgment is geared to the essentially factual exercise of deciding if the accommodation meets those physical requirements.
It has been said that Etherton LJ went too far in suggesting that a feature of the accommodation, to meet the requirements of section 176, had to be the provision of a communal space where family activities could be enjoyed and shared.
I rather think that Etherton LJ, in his reference to a communal space, was emphasising the lack of such a feature as an indication of the incapacity of the accommodation offered to meet the statutory requirements rather than identifying it as an invariably indispensable requirement.
In any event, this does not affect the principal issue.
This is that there should be physical accommodation capable of being occupied as a single unit by the person for whom it is provided together with the members of his or her family.
It is of course desirable that such a unit should have a communal space where family activities could be enjoyed but I do not consider that this is something which the statute affirmatively requires.
Much was made by the appellant of the considerable constraints that would be placed on local authorities if they were required to house families in single units and were not afforded the opportunity to exercise judgment as to their accommodation in different units.
No evidence was provided to support these (to my mind, at least) somewhat unlikely claims.
No suggestion was made that any local authority had accommodated families in this way on any widespread basis in the past.
Notably, there is nothing in the Code of Guidance: Homelessness Code of Guidance for Local Authorities (2006) which recommends the practice.
But if the opportunity is available to house families in different living units, there is every reason to suppose that local authorities, with the pressures that are placed on them to meet housing need, will, perfectly understandably, seek to exploit that opportunity to the fullest extent.
There is therefore a real risk that one of the principal purposes of the legislation (that of bringing and keeping families together) will be, if not undermined, at least put under considerable strain.
I would dismiss the appeal.

Output:
This appeal concerns the interpretation of a provision of the Housing Act 1996 (the 1996 Act) relating to the duties of local housing authorities to provide accommodation for those who are, or claim to be, homeless or threatened with homelessness.
Section 175 of the 1996 Act states, in essence, that a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere.
According to section 176, accommodation is to be regarded as available for a persons occupation only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him [3].
The phrase available for his occupation is relevant not only to establishing whether a person is homeless for the purposes of the 1996 Act, but also to identifying what duties a local authority owes to a person who is, or claims to be, homeless [4].
In 2004, Camden London Borough Council accepted that it owed a duty under the 1996 Act to provide accommodation to Ms Sharif, her father (a man in his 60s with certain health problems) and her sister (aged 14), on the basis that Ms Sharif was homeless.
They were initially accommodated by the Council in a hostel and later moved to a three bedroom house owned by a private sector landlord.
In 2009, the Council asked Ms Shariff, her father and her sister to move to two units on the same floor of a block of flats in North London.
Each unit comprised a single bed sitting room with cooking facilities, plus a bathroom.
The two units were separated by only a few yards.
It was envisaged by the Council that Ms Sharif and her sister would share one unit, and the other unit (suitable only for one person) would be used by her father [8].
Ms Sharif refused the offer, saying that the accommodation was not suitable because her fathers medical condition required them to live in the same unit of accommodation [9].
Ms Sharif requested a review of the Councils decision, but the Councils reviewing officer concluded that the accommodation offered was suitable [9].
Ms Sharif appealed to the London Central County Court on a number of grounds, including the suggestion that the accommodation was not suitable and that section 176 of the 1996 Act precluded the Council from offering Ms Sharif and her family two separate units of accommodation [10].
The County Court dismissed the appeal [11].
There was no further appeal on the issue of the suitability of the accommodation.
However, the Court of Appeal reversed the County Courts decision on the basis that the words together with in section 176 require a homeless family to be housed in the same unit of accommodation [12].
The Council appealed to the Supreme Court.
The Supreme Court allows the Councils appeal.
It holds that section 176 of the 1996 Act does not preclude local authorities from offering a homeless family two separate units of accommodation.
The lead judgment for the majority is given by Lord Carnwath.
Lord Kerr gives a dissenting judgment.
The majority concludes that, whilst one of the main purposes of the 1996 Act is to ensure that members of a homeless family are not split up by local housing authorities, section 176 does not prevent a local housing authority offering a homeless family two separate units of accommodation if they are so located that they enable the family to live together in practical terms.
That is a factual judgment to be made by the local housing authority [17].
The 1996 Act requires accommodation provided by a local housing authority to be suitable.
However, Ms Sharif no longer denies that the two flats offered to her by the Council meet that requirement [18, 29].
Neither the word accommodation nor the words together with in section 176 imply that a homeless family must be accommodated in the same unit of accommodation [5, 17].
Had the Councils reviewing officer been asked to answer the question of whether section 176 prohibits the Council from housing a homeless family in two separate units of accommodation, it is reasonably clear that he would have answered in the negative.
The main obstacle to family living which had been raised before the reviewing officer had been the problem of caring for Ms Sharifs father in a separate unit of accommodation.
That problem was discounted by the reviewing officer, on the basis that the problem of communication between the two flats would be no greater than in a house with two floors [18].
The arguments made on behalf of Ms Sharif would produce surprising results.
For example, the Council would not be able to improve the position of a homeless family residing in an overcrowded house or flat by offering them an additional neighbouring unit of accommodation, even on a temporary basis [19].
Ms Sharif also accepted that two separate rooms in a hostel or hotel would satisfy the requirements of section 176 of the 1996 Act.
However, the majority found it hard to see why that should be treated differently from the provision of two adjacent flats [20, 30].
Lady Hale emphasises that there is no requirement under the 1996 Act for local housing authorities to provide a communal living space to those who are, or claim to be, homeless [30].
The majority emphasises that their interpretation of section 176 of the 1996 Act does not give local housing authorities a free hand.
It is a fundamental objective of the 1996 Act to ensure that families can live together in a true sense; accommodation provided by a local housing authority will not satisfy section 176 unless it enables that objective to be achieved [23].
Lord Hope says that the test is not to be exploited by local housing authorities; it must be applied reasonably and proportionately [28].
Lord Kerr, dissenting, says that section 176 requires a local housing authority to accommodate a homeless family in the same unit of accommodation.
The accommodation must be of a character that will allow all members of the family to live within it [34].
Lord Kerr concludes that the words together with in section 176 imply joint occupation of the same unit of accommodation [32, 33].
He takes the view that sufficient proximity is very different from living together [35].


Input:
The question at issue on this appeal is what connection must a foreign company have with the United Kingdom to entitle an English court to wind it up, if its centre of main interests (or COMI) is in another member state of the European Union.
The answer depends on the meaning of two words, economic activity, in EU Regulation 1346/2000 on Insolvency Proceedings.
The legal framework
Under section 221 of the Insolvency Act 1986, the English court has jurisdiction under its domestic law to wind up a foreign company.
However, in the case of companies whose COMI is in another member state of the EU, the exercise of this power is constrained by the Regulation.
Article 3 of the Regulation provides as follows: Article 3 International jurisdiction 1.
The courts of the Member State within the territory of which the centre of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings.
In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2.
Where the centre of a debtor's main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State.
The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.
Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings.
These latter proceedings must be winding up proceedings. 3.
The COMI is not a term of art, and is not defined in the body of the Regulation.
Recital (13), however, recites what is perhaps implicit in the phrase, namely that it should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.
Jurisdiction to begin secondary insolvency proceedings in another European jurisdiction is established on a very different basis.
It depends on the existence of an establishment within its territory.
An establishment is defined in article 2(h) as any place of operations where the debtor carries out a non transitory economic activity with human means and goods.
Goods is hardly a satisfactory English word to use in this context.
It is apparent from the equivalent term in the other language versions that it means the same as assets (biens, Vermgen) in article 3(2).
The facts
Olympic Airlines SA was wound up on the direction of the Athens Court of Appeal on 2 October 2009.
Since then, the main liquidation proceedings have been in progress in Greece.
The appellants are the trustees of the companys pension scheme.
Olympic is the principal employer in the scheme and the only employer currently participating in it.
Under the rules of the scheme, it must be wound up upon the liquidation of Olympic Airlines.
Upon its winding up, a deficit was ascertained of (in round numbers) 16m, which Olympic is bound to make good under section 75 of the Pensions Act 1995.
On 20 July 2010, the trustees presented a winding up petition against the company in England on the ground that it was unable to meet this liability.
The size of Olympics deficiency means that they are unlikely to recover much.
But the winding up order was necessary in order that the scheme should qualify for entry into the Pension Protection Fund under section 127 of the Pensions Act 2004.
One of the conditions of entry was that a qualifying insolvency event should have occurred, and the only available one was that the company should have been ordered to be wound up under the Insolvency Act 1986: see Pensions Act 2004, section 121(3)(g).
Accordingly, the question arises whether Olympic had an establishment in the United Kingdom on 20 July 2010 so as to justify the presentation of a winding up petition on that date.
Olympic had had a number of offices in the United Kingdom, but the only ones which it still occupied on 20 July 2010 were its former UK head office at 11 Conduit Street in London, which it leased from an associated company.
The Chancellor heard evidence about the status of 11 Conduit Street and the activities that were carried on there at the relevant time.
He and the Court of Appeal made the following findings: (1) On 28 September 2009, shortly before the commencement of the liquidation proceedings in Greece, the area manager for Olympic in London was instructed that the company would cease all commercial operations as from 00.01 on the following day.
From that time all flight operations were undertaken by an unrelated company. (2) On 17 June 2010, the Greek liquidator informed the trustees of the pension fund that the employment of the 27 remaining UK staff would be terminated with effect from 14 July 2010.
Three persons, Mr Savva the General Manager, Mr Platanias the Finance and Purchasing Manager, and an accounts clerk, were retained thereafter on short term ad hoc contracts.
At the time of the English winding up petition, they were the only persons still working there. (3) Mr Savva attended the office at Conduit Street as required.
In practice this was about three or four times a week.
His function was to deal generally with anything requiring attention, principally instructions and requests from the liquidator and staff in Athens retained by him. (4) Mr Platanias arranged the payment of bills for his own salary and Mr Savvas, council tax, electricity and cleaning, and for minor repairs following a break in.
He reconciled bank statements, copied and sent relevant documents to the liquidator and his staff in Athens and dealt generally with post and telephone calls.
He supervised the disposal of the companys assets in England, a process which had begun before the winding up petition and continued for some time afterwards.
These comprised a current and deposit account, computers and office furniture, fixtures and fittings and computerised accounting records.
They had no substantial realisable value.
The Chancellor found that Mr Platanias functions were exactly what is to be expected from one responsible to an overseas liquidator for winding up the affairs of a foreign branch of a formerly substantial overseas trading company. (5) The clerk assisted in these activities under the direction of Mr Savva or Mr Platanias.
The decisions of the courts below
The Chancellor considered that to be economic an activity did not have to amount to external market activity: [2013] 1 BCLC 415.
He found that these activities constituted non transitory economic activities for the purpose of the definition of establishment and made the winding up order.
The Court of Appeal (Moore Bick LJ, Sir Stephen Sedley and Sir Bernard Rix) overruled him: [2014] 1 WLR 1401.
In summary, they thought that the relevant economic activity had to consist of more than the activity involved in winding up the companys affairs, and that the three remaining employees were doing no more than that.
After the Court of Appeal handed down its decision, the law was changed.
A statutory power under the Pensions Act 2004 was exercised so as to prescribe an additional insolvency event for the purpose of section 121.
The additional event was defined in such a way as to apply only to cases in which insolvency proceedings had been commenced in another member state of the EU in respect of an employer whose COMI was located in that state, and secondary proceedings had been begun in the United Kingdom but had subsequently been set aside for want of jurisdiction: see the Pension Fund (Entry Rules) (Amendment) Regulations 2014 (SI 2014/1664).
This appears to be a class of one: the present case.
However, for technical reasons, the present issue remains important even though the effect of the amendment is to enable the Olympic pension scheme to qualify for the Pension Protection Fund on the basis of the Greek proceedings.
The reason is that where the new insolvency event applies it is deemed to occur on the fifth anniversary of the commencement of the Greek proceedings, ie on 2 October 2014.
This is rather more than four years after the date of the winding up order made by the High Court.
This matters, because of the possibility that the Board of the Pension Protection Fund might require the trustees of the Olympic scheme to claw back any overpaid benefits between the commencement of the Greek liquidation proceedings and the relevant insolvency event.
If that event occurred on 2 October 2014 instead of 29 May 2012, the period over which the benefits may be clawed back will be longer.
Authorities
The text of the Regulation is largely derived from the Convention on Insolvency Proceedings which was opened for signature in Brussels on 23 November 1995, but failed for want of a sufficient number of signatories.
The Convention had been the subject of an authoritative commentary by Professor Miguel Virgos and M Etienne Schmit.
According to the Virgos Schmit Report (3 May 1996, OJL 6500/96), the definition of establishment reflected a compromise between universalist states, who favoured a single liquidation with universal effect, and territorialist states, who wished to recognise a jurisdiction to open national territorial proceedings based on the mere presence of local business assets whether or not there was any local place of business.
The compromise consisted in the acceptance by the territorialists that jurisdiction to open secondary proceedings should be founded on the existence of a local establishment, but with a broad definition of the activities that must be carried on there.
At para 71, the Report commented on the resultant definition as follows: 71.
For the Convention on insolvency proceedings, establishment is understood to mean a place of operations through which the debtor carries out an economic activity on a non transitory basis, and where he uses human resources and goods.
Place of operations means a place from which economic activities are exercised on the market (ie externally), whether the said activities are commercial, industrial or professional.
The emphasis on an economic activity having to be carried out using human resources shows the need for a minimum level of organization.
A purely occasional place of operations cannot be classified as an establishment.
A certain stability is required.
The negative formula (non transitory) aims to avoid minimum time requirements.
The decisive factor is how the activity appears externally, and not the intention of the debtor.
The rationale behind the rule is that foreign economic operators conducting their economic activities through a local establishment should be subject to the same rules as national economic operators as long as they are both operating in the same market.
In this way, potential creditors concluding a contract with a local establishment will not have to worry about whether the company is a national or foreign one.
Their information costs and legal risks in the event of insolvency of the debtor will be the same whether they conclude a contract with a national undertaking or a foreign undertaking with a local presence on that market.
Naturally, the possibility of opening local territorial insolvency proceedings makes sense only if the debtor possesses sufficient assets within the jurisdiction.
Whether or not these assets are linked to the economic activities of the establishment is of no relevance.
This provides much the most useful source of guidance.
By comparison, there is very limited help to be had from decided cases.
Decisions on the location of a companys COMI are addressed to a different test.
Decisions on what constitutes an establishment can rarely be more than illustrative given the fact sensitive nature of the inquiry.
In (Case C 396/09) Interedil Srl (in liquidation) v Fallimento Interedil Srl [2011] ECR I 9939: [2012] BUS LR 1582, the Court of Justice of the European Union dealt with the question whether the presence of immovable property was enough to confer jurisdiction to open secondary insolvency proceedings.
The court did not specifically address the question what constituted economic activity, but it dealt generally with the definition of establishment at paras 61 63 as follows:
61. Article 2(h) of the Regulation defines the term establishment as designating any place of operations where the debtor carries out a non transitory economic activity with human means and goods. 62.
The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required.
It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an establishment. 63.
Since, in accordance with article 3(2) of the Regulation, the presence of an establishment in the territory of a member state confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
Two English decisions illustrate the application of the test to particular facts.
In Shierson v Vlieland Boddy [2005] 1 WLR 3966, the Court of Appeal was concerned with an English debtor whose COMI was in Spain but who let and managed premises in England.
It cited and implicitly adopted para 71 of the Virgos Schmit Report, and concluded that the letting and management of the premises themselves was enough to make them an establishment.
In In re Office Metro Ltd [2012] BCC 829, Mann J was concerned with secondary proceedings in England in respect of an English company whose COMI was in Luxembourg and which was in liquidation there.
It used an office in England, at which it handled the settlement of liabilities on guarantees of leases to associated companies, dealt with Companies Act filings, forwarded post, and occasionally took legal and accountancy advice.
Perhaps wisely, the judge did not attempt a general definition of economic activity, but expressed the view that the activities carried out at the relevant premises were not economic activities and that in any event they were transitory.
Application to the present case
The definition in article 2(h) must be read as a whole, not broken down into discrete elements, for each element colours the others.
The relevant activities must be (i) economic, (ii) non transitory, (iii) carried on from a place of operations, and (iv) using the debtors assets and human agents.
This suggests that what is envisaged is a fixed place of business.
The requirement that the activities should be carried on with the debtors assets and human agents suggests a business activity consisting in dealings with third parties, and not pure acts of internal administration.
As the Virgos Schmit Report suggests, the activities must be exercised on the market (ie externally).
I am inclined to think that the same point was being made by the Court of Justice when it observed in Interedil that the activities must be sufficiently accessible to enable third parties, that is to say in particular the companys creditors, to be aware of them.
I do not think that this can sensibly be read as requiring that the debtor should simply be locatable or identifiable by a brass plate on a door.
It refers to the character of the economic activities.
They must be activities which by their nature involve business dealings with third parties.
Manifestly, some activities which a company in liquidation might carry on, may satisfy the definition.
This may happen not only where the liquidator carries on the business with a view to its disposal but also, for example, where he disposes of stock in trade on the market.
On the other hand, where a company has no subsisting business it is clearly not the case that the mere internal administration of its winding up will qualify.
Such activity would not be exercised on the market; moreover, if it were enough to establish
jurisdiction then the requirement for economic activities would add little
or nothing to the rest of the definition.
Indeed, the definition would almost always be satisfied by a debtor who retained premises in the United Kingdom with inevitable outgoings such as the payment of rent, business rates, and so on.
It is unnecessary in the present case to undertake the difficult task of drawing a precise boundary between these extremes because, on any reasonable view of the meaning and purpose of the definition, the facts of this case are on the wrong side of it.
Olympic was not carrying on any business activity at 11 Conduit Street on the relevant date.
The last of the companys business activities had ceased some time before.
All that Mr Savva and Mr Platanias were doing was handling matters of internal administration associated with the final stages of the companys disposal of the means of carrying on business.
The company cannot therefore be said to have had an establishment in the United Kingdom.
Reference under Article 267 TFEU
In my opinion, the necessity for showing at least some subsisting business with third parties before the definition can be satisfied is acte clair, even if the exact nature of that business and the degree to which it must be visible to outsiders may be open to argument.
Since in this case no external business at all was carried on from 11 Conduit Street, there is no point of principle calling for a reference.
Disposal
I would dismiss the appeal.

Output:
Olympic Airlines SA was wound up by a court in Athens on 2 October 2009.
The main liquidation proceedings are ongoing in Greece.
The company pension scheme has a 16m deficit.
Olympic Airlines SA is liable to make good the deficit by s 75 of the Pensions Act 1995.
It is unlikely to be able to do so.
Members of the pension scheme are eligible for compensation under the Pensions Act 2004 from the UKs Pension Protection Fund in respect of the shortfall.
Such compensation is payable from the date when a qualifying insolvency event occurred.
There are two possible dates in this case.
The first possible date is 20 July 2010, which is when the trustees of the pension scheme presented a winding up petition in England.
The winding up of a company under the Insolvency Act 1986 is a qualifying insolvency event: Pensions Act 2004, s 121(3)(g).
English courts have jurisdiction to wind up a foreign company under the Insolvency Act 1986.
However, under EU Regulation 1346/2000 on Insolvency Proceedings (the Regulation), where (as here) the company has its centre of main interests in another member state of the European Union, the English court is only permitted to wind it up if it has an establishment in England, meaning any place of operations where the debtor carries out a non transitory economic activity with human means and goods (article 2(h)).
The second possible date is 2 October 2014, which is the fifth anniversary of the commencement of the proceedings in Greece.
The possibility of treating this date as the date of a qualifying insolvency event in the specific circumstances of this case was created by a change in legislation subsequent to the Court of Appeals decision in this case refusing to make a winding up order on the basis of lack of jurisdiction: Pension Fund (Entry Rules) (Amendment) Regulations 2014.
The trustees of the pension scheme would prefer compensation to be treated as payable from the earlier of those two dates, namely 20 July 2010.
The only question for the court is therefore whether Olympic Airlines SA had an establishment in the UK on 20 July 2010 entitling the English court to make a winding up order under the Regulation, so that it can be said that a qualifying insolvency event occurred on that date.
By 20 July 2010, Olympic Airlines SA had: closed all of its offices in the UK except for its head office at 11 Conduit Street in London; ceased all commercial operations; and terminated the contracts of all remaining UK staff except for the General Manager, the Purchasing Manager, and an accounts clerk, who were retained on short term ad hoc contracts to implement instructions from the liquidator in Athens, supervise the disposal of the companys assets in the UK, and pay bills and conduct other administration relating to the head office building.
At first instance, the judge held that these activities constituted non transitory economic activities and Olympic Airlines SA therefore had an establishment in the UK entitling him to make the winding up order.
The Court of Appeal disagreed and held that the remaining activity consisted only in the winding up of the companys affairs, which was not enough to give the court jurisdiction to make the order.
The trustees of the pension scheme appeal from the Court of Appeals decision.
The Supreme Court unanimously dismisses the appeal.
Lord Sumption gives the only judgment.
Lord Sumption holds that the Regulations definition of establishment, which must be read as a whole, envisages a fixed place of business and business activity carried on there consisting in dealings with third parties, and not merely acts of internal administration [13].
For example, disposal of stock in trade would clearly satisfy the definition, but mere internal administration of the winding up including administration of remaining premises in the UK would not [14].
Olympic Airlines SA was not carrying on business activity at its head office on 20 July 2010 and did not therefore have an establishment in the UK at that date [16].
The requirement of showing at least some subsisting business with third parties is acte clair and so no reference to the Court of Justice of the European Union is necessary [16].