London Borough of Tower Hamlets v Begum

This is an appeal by the London Borough of TowerHamlets (“the Council”) against an order of His Honour Judge Hornby, allowing an appeal by Mrs Rikha Begum (“the Applicant”) against the Council’s decision that they need not entertain her application for housing assistance. That application was made under Part VII – which contains the homelessness provisions - of the Housing Act 1996 (“the 1996 Act”). Mr Kelvin Rutledge (who appears for the Council) and Mr Jan Luba QC (who appears for the Applicant with Mr Sean Pettit) agree that the principal issue raised on this appeal is one of legal difficulty, as well as being of considerable practical importance to local housing authorities and to those seeking assistance from them.

That issue, which has been very well argued on both sides, may be summarised in these terms. How should a local housing authority respond to an application, under Part VII of the 1996 Act, from a person from whom they had previously received such an application which had given rise to a duty in the Council under Part VII, which duty had been discharged as a result of the person having unreasonably refused an offer of accommodation? There is also an issue on costs.

I will first set out the facts of this case, and will then identify the relevant statutory provisions. I will then consider the principal point at issue, which arises on the Council’s appeal, in light of the statutory provisions, the authorities, and practical considerations. Finally, I will deal with the Applicant’s cross-appeal on costs.

On 29 September 2000, the Applicant and her husband, who had a two-year old child, applied to the Council under Part VII of the 1996 Act on the basis that they had become homeless, as they could no longer occupy the applicant’s parents’ home, 41 Mark House, London E2. This application (which I shall call “the first application”) was investigated by the Council, who concluded that the Applicant and her husband were involuntarily homeless and had a priority need. Accordingly, the Council placed them in temporary housing at 160 Tredegar Road, London E2. Shortly after the allocation of that accommodation, the Applicant and her husband had another child, who was born on 23 June 2001. Thereafter in March 2002, the Council offered the Applicant and her husband a secure tenancy of 37 Johnson House, London E2, which they refused in April 2002. The Council concluded that they had thereby discharged their duty under Part VII of the 1996 Act to the Applicant and her husband, who would therefore have to vacate the temporary accommodation at 160 Tredegar Road.

The suitability of Johnson House, and the Council’s view that their duty under Part VII of the 1996 Act had ceased, were challenged by the Applicant and her husband, first by way of review by one of the Council’s assessment managers, and then by way of appeal to the County Court. The date of the review is not apparent from the papers, but it seems to have been in May 2002, and it resulted in the Council confirming their conclusion. The appeal to the County Court against the review decision was rejected on 1 November 2002. The Applicant and her husband then returned to Mark House some time in November 2002.

On 9 February 2004, the Applicant made a further application (“the second application”) under Part VII of the 1996 Act to the Council, on the basis that it was unreasonable for her to continue to reside at Mark House with her two children. Three factors were said to have changed, and to have rendered Mark House less appropriate housing for the Applicant, since the date of the first application in September 2000. First, there was the birth of the second child, although this had occurred before she had rejected the offer of Johnson House made pursuant to the first application. Secondly, in September 2003, the Applicant’s father, who had been the tenant of Mark House, purchased it (under his statutory right to buy) jointly with one of his sons, who therefore had the right to live there, which he exercised, albeit intermittently. Thirdly, another brother of the Applicant had been released from prison in August 2003, and had moved into Mark House, where he not merely lived, but also indulged in his heroin addiction. According to the Applicant’s evidence, there were (and, I understand, still are) ten people spread over three generations living in Mark House, a three bedroom flat.

By a letter of 20 February 2004, a Homeless Officer of the Council rejected the second application. She summarised the history of the first application, and then referred to the Applicant’s contention that Mark House was “considerably overcrowded”. However, the Officer said that, because she was “satisfied that there has been no material change in [the Applicant’s] circumstances”, the “Council has no obligation to secure any accommodation for [the Applicant and her] family.”

In accordance with what she was told in that letter were her rights under the 1996 Act, the Applicant requested the Council to review that decision. Her case was set out in a full letter from her solicitors dated 28 April 2004. The review was carried out by an Acting Assistant Assessment Manager of the Council, who communicated her decision to the applicant on 4 May 2004. The review referred to the Applicant’s solicitors’ contention that the three factors mentioned above “amount[ed] to a significant and material change in [her] circumstances”. This was rejected on the basis that:

“I consider that you have remained homeless since my Council discharged its responsibility to you in April 2002 and that there has been no intervening period of settled accommodation; you were with your father for only nine months before [your brother] was released from prison and thereafter the property was unsuitable due to his drug use.”

The letter went on to reject as relevant the birth of the second child on the ground that Johnson House would have been suitable for a couple with two children.

In accordance with the advice as to her rights in that letter, the Applicant appealed that review decision to the County Court. On 26 July 2004, Judge Hornby allowed the appeal on the ground that the Council, by asking themselves whether there had been a material change in the Applicant’s circumstances since the Council’s offer of Johnson House, had applied the wrong test. He held that, in light of the decision of the House of Lords in R –v- London Borough of Harrow ex p Fahia [1998] 1WLR 1396, the Council should have approached the second application in the same way in which they would, and were required to, approach any application based on an applicant’s alleged homelessness, under Part VII of the 1996 Act. Although the Judge allowed the Applicant’s appeal, he made no order for costs.

The Council now appeal to this Court with the permission of Potter LJ, and the Applicant cross-appeals the order for costs, with our permission.

The first Statute to deal with the duty of local housing authorities towards the homeless was the Housing (Homeless Persons) Act 1977. This was repealed and substantially re-enacted in Part III of the consolidating (and amending) Housing Act 1985. Part III of the 1985 Act was itself repealed and re-enacted, albeit in somewhat reformulated terms, in Part VII of the 1996 Act. Part VII of the 1996 Act has been the subject of significant amendments by the Homelessness Act 2002. As this case is concerned with the 1996 Act (as amended by the 2002 Act) I will confine myself, at any rate at this stage, to the provisions of that Act. Accordingly, I do not propose to identify all the provisions of the 1977 or 1985 Acts, although most of the authorities relevant to the present issue, including Fahia, involved one of those two earlier Statutes.

The Housing Act 1996 was concerned, according to its long title, “to make provision… about the social rented sector ... the allocation of housing accommodation by local housing authorities and homelessness ...”. Part VI of the 1996 Act is directed to the provision of housing under arrangements which give long term accommodation to tenants, who will normally enjoy security of tenure in accordance with the secure tenancy provisions of the 1985 Act. As I have mentioned, the provisions relating to homelessness are contained in Part VII of the 1996 Act, which contains sections 175 to 218.

Homelessness and threat of homelessness are defined in section 175, as expanded by sections 176 and 177, of the 1996 Act. A person with accommodation can claim to be homeless provided that it would not be “reasonable for him to continue to occupy it” – see sections 176 and 177. Sections 179 to 182 are concerned with the duty, imposed on local housing authorities by section 179(1), “to secure that advice and information about homelessness ... is available ... to any person in their district.”

Section 183(1) of the 1996 Act provides:

“The following provisions of this Part apply where a person applies to a local housing authority for accommodation or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.”

Section 184(1) requires the authority, if they “have reason to believe that an applicant may be homeless”, to satisfy themselves (a) “whether he is eligible for assistance”, and (b) what “duty [if any] is owed to him under the following provisions” of the Act. Eligibility is defined in sections 185 to 187, which exclude certain categories of person, and are irrelevant for present purposes.

Section 188(1) requires the authority to provide an applicant with accommodation “pending a decision as to the duty (if any) owed to him”, provided that there is “reason to believe that” he “may be homeless, eligible for assistance and have a priority need”. Priority need is the subject of section 189, which includes, in sub-section (1)(b), “a person with whom dependent children reside or might reasonably be expected to reside”. (A tenancy granted under this section does not attract security of tenure – see para 4 of Schedule 1 to the 1985 Act).

Sections 190 to 193 contain the three types of duty which are owed by a local housing authority. Section 190 applies where the authority “are satisfied that an applicant is “homeless...eligible... but...became homeless intentionally”. If such an applicant has priority need then, by virtue of sub-section (2), the authority must:

“(a)

secure that accommodation is available for his occupation for such period as ...will give him a reasonable opportunity of securing accommodation; and

(b)

provide him with advice and assistance...”

If such an applicant does not have priority need, then the authority are required by sub-section (3) to provide him with advice and assistance. Section 191 says that a person becomes homeless intentionally if he deliberately does something, or fails to do something, “in consequence of which he ceases to occupy accommodation which is available for his occupation”.

Section 192, which imposes the second type of duty, applies where the authority conclude that an applicant is unintentionally homeless and eligible, but does not have priority need. In such a case, by virtue of sub-section (2), the authority must provide him with advice and assistance in his attempts to secure accommodation. By sub-section (3) the authority may (but not must) “secure that accommodation is available for occupation by” such an applicant.

Section 193 imposes the most onerous of the three types of duty on the authority, and concomitantly the most generous to applicants. It applies, according to sub-section (1), where the authority are satisfied that the applicant is unintentionally homeless, eligible, and has priority need. By virtue of sub-sections (2) and (3), unless the application is referred to another authority (under section 198), the authority “shall secure that accommodation is available for occupation by the applicant” until that duty “ceases by virtue of this section.” The duty ceases in three classes of circumstance, which are described in sub-sections (5), (6) and (7).

Section 193(5) provides for cesser of the duty where after appropriate notification has been given to him the applicant “refuses an offer of accommodation which ... is suitable for him ...”. Section 193(6) states that the duty ceases if the applicant:

“…

(b)

becomes homeless intentionally from the accommodation

made available for his occupation;

(c)

accepts an offer of accommodation under Part VI ...;

…

(d)

accepts an offer of an assured tenancy ...”

Section 193(7) provides for the authority’s duty to cease if, after being notified of the consequences, an applicant refuses “a final offer of accommodation”, which is defined in the following sub-sections (7A) to (7F) and (8).

Section 193(9) provides:

“ A person who ceases to be owed a duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.”

Until amended by the 2002 Act, the maximum duration of an authority’s duty under section 193 was two years. However, the authority were entitled, but not obliged, to provide accommodation to an applicant after the expiry of that period, in accordance with section 194 (a section repealed by the 2002 Act). Sub-section (9) of section 193 was unaffected by the 2002 Act, but, as I have indicated, that Act made substantial amendments and additions to subsection (7).

Sections 195 and 196 are concerned with cases where the authority are satisfied that the applicant is threatened with homelessness. Section 197 has been repealed. Sections 198 to 200 deal with an authority’s right to refer an application to another authority, and section 201 is directed to Scotland. Section 202 entitles an applicant to request a review by an authority of, inter alia:

“ ...

(b)

any decision ... as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 ...

...

(f)

any decision ... as to the suitability of accommodation offered to him...”.

Once a review has occurred, there is no right to a second review of the same decision – sub-section (2). The procedure on a review, which must be requested within 21 days of the decision concerned, is contained in section 203.

Section 204(1) bestows on a dissatisfied applicant the right to appeal to the county court against a local authority’s decision on review under section 202 “on any point of law”. On such an appeal the court may “confirm...quash...or vary... the decision as it thinks fit” – see sub-section (3).

For present purposes, it is, I think, unnecessary to consider any other provisions of the 1996 Act.

Accordingly, I turn to consider the consequence of the application of the provisions of the 1996 Act to the facts of the present case. In particular, whether the Council was entitled to reject the applicant’s application of 9 February 2004, i.e. the second application, on the ground that there had been no material change in her circumstances since she had unreasonably rejected the offer of accommodation at Johnson House, an offer which had been made by the Council pursuant to her application of 29 September 2000, i.e. the first application. I shall begin by considering the case law.

Four decisions, two at first instance and two in the Court of Appeal, on the 1977 Act and Part III of the 1985 Act provide strong support, particularly when taken together, for the proposition that, once an authority have satisfied their duty in relation to an application by a person who was homeless, they have no duty to that person on a subsequent application unless he can show a material change of circumstances.

In Delahaye –v- Oswestry Borough Council (Times Law Reports, 29 July 1980), Woolf J said:

“On a proper construction of the [1977] Act, a person who has made an application ... and has been granted temporary accommodation under that Act cannot, when use of that accommodation is terminated or threatened with termination, rely solely upon the same matters as he relied on in support of his earlier application, or the termination or the threat of termination of the use of the temporary accommodation provided under the Act, as the basis for a further application.”

He went on to explain that it could not, in his view, have been intended that “someone who is not entitled to permanent accommodation to obtain the continuous use of temporary accommodation by means of successive applications.” Woolf J also referred to the fact that “the obligation to provide temporary accommodation is intended to come to an end”, and accordingly said that he rejected the contention that “that obligation could be continued or renewed by making a fresh application”.

A similar view as to the effect of the 1977 Act was taken by McCullough J in R –v- City of Westminster ex p Chambers (1982) 6 HLR 24, at 30. He considered the case of a second application by an unintentionally homeless applicant who, after unreasonably rejecting accommodation offered by the authority pursuant to his first application, was again faced with eviction. McCullough J said that he would “expect” the authority normally to be able to reject the second application as “the renewal of unintentional homelessness would in reality be a continuation of the original unintentional homelessness...”.

R –v- Ealing London Borough Council ex p McBain [1985] 1 WLR 1351, a decision of this court, was also concerned with the 1977 Act. The effect of the decision is accurately summarised in the head note at 1351G to 1352A, in these terms:

“[W]hile a housing authority, having made an offer of accommodation which was unreasonably refused, had performed the statutory duty imposed upon them … , their duty … revived once the applicant … established a material change of circumstances such as a change in priority need which … rendered the previously offered accommodation unsuitable for himself and those … resid[ing] with him.”

The revival of the authority’s duty under the 1977 Act as a result of a material change of circumstances was said by Ackner LJ to be “properly inferred from the provisions of the Act”. He went on to say that, to establish a material change, an applicant must show his circumstances had altered so “as to make the accommodation previously offered clearly unsuitable”: see at 1356 G to H.

Apart from Fahia, the only case in which the Court of Appeal appears to have dealt with this point under the 1985 Act was R –v- Southwark London Borough Council ex p Campisi (1998) 31 HLR 560. In that case, after referring, at 562, to McBain with implied approval, Schiemann LJ (with whom Peter Gibson and Mummery LJJ agreed), at 563, distinguished between a “repetitious claim”, which would be “identical to the first”, and a “fresh claim”, which would be one “where there has been a material change of circumstances since the original decision” – see at 565. At 563, Schiemann LJ made the same point as Woolf J in Delahaye, saying that, if a repetitious claim was effective, “[a]n applicant could …, by permanently renewing applications, put a local authority under a continuing duty to accommodate her.”

The cases so far discussed appear to support, at least in principle, the approach of the Council to the second application in this case. However, a somewhat different approach is justified, at least according to Mr Luba, in the light of the reasoning of the House of Lords in the case relied on by Judge Hornby, namely, R –v- Harrow London Borough Council ex p Fahia [1998] 1 WLR 1396, which was handed down two weeks after judgment was given in Campisi. Lord Browne-Wilkinson, who gave the only reasoned speech, said this at 1401G-H:

“The problem is this. When a local authority, having discharged their statutory duties in relation to one application for accommodation, then receive a second application from the same applicant, are they bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a ‘threshold test’ which the second application must satisfy if it is to be treated as an application under [Part III of] the [1985] Act?”

In that case, Mrs Fahia had made an application for housing under Part III of the 1985 Act. As she had priority need, Harrow London Borough Council (“Harrow”), in accordance with their obligations, afforded her temporary housing in a guest house while they carried out investigations. They decided that she had become intentionally homeless from accommodation at Tudor Road, and refused her application. Nonetheless, they continued to pay housing benefit towards her rent for the guest house accommodation. Subsequently, Harrow decided to start paying housing benefit towards her rent at a lower rate, and, as a result, the guest house proprietor required her to vacate. Mrs Fahia’s consequent second application under Part III of the 1985 Act was rejected by Harrow, on the ground that her temporary residence in the guest house “did not constitute settled intervening accommodation so as to break [her] original homelessness from ... Tudor Road”.

By the time the case got to the House of Lords, Harrow’s case was put slightly differently. Lord Browne-Wilkinson, at 1402A, identified their argument as being that “a person making a second application must demonstrate a change of circumstances which might lead to the second application being successful”, and that “it is for the local authority to decide whether that test has been satisfied.” It was accordingly argued by Harrow that, as “Mrs Fahia had not shown any new circumstance which could lead to the conclusion that she was not intentionally homeless”, they were entitled to “refuse to go through the whole procedure of making statutory inquiries again.”

Lord Browne-Wilkinson rejected that argument on the basis that he was “unable to extract from the statutory language any sufficient justification for the suggested short cut” – see at 1402B. He went on to explain at 1402 B-D:

“Under section 62 [of the 1985 Act] the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) ‘the authority have reason to believe that he may be homeless or threatened with homelessness.’ ... [W]hen an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye ...”.

He continued at 1402D-E:

“But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not be treated as identical with the earlier ... application. She was relying on her eviction from the guest house which, for one year, she had been occupying as [a] licensee ...”.

Lord Browne-Wilkinson then concluded his speech, at 1402F, by saying that:

“[T]here was no short cut available to Harrow by way of so-called ‘non-statutory’ inquiries. It may well be that legislation is required to lay down a streamline procedure for processing second or later applications from the same applicant. But the wording of section 62 is too clear to allow the development of such a procedure by judicial decision.”

Before turning to the discussion of this case, it is right to record two points about the decision in Fahia. First, section 62(1) of the 1985 Act was somewhat differently worded from section 183(1) of the 1996 Act, a point I shall deal with below. Secondly, it does not appear that Chambers, McBain or (not surprisingly) Campisi were cited in the House of Lords in Fahia. However in the judgment of Roch LJ, the only reasoned judgment in the Court of Appeal in Fahia, which was self-evidently before the House of Lords, there was a fairly detailed discussion of Chambers and McBain – see (1997) 29 HLR 974 at 982.

In my judgment, the reasoning, indeed the decision, of the House of Lords in Fahia is inconsistent with that of the courts in Chambers, McBain and Campisi. (It is a moot point, which it is unnecessary to resolve, whether this also applies to Delahaye). To my mind, it is apparent that those earlier cases involved the development of the notion of what Lord Browne-Wilkinson characterised in Fahia as “ ‘non-statutory’ inquiries” by an authority on receipt of a subsequent application. Namely, inquiries into whether there had been what Schiemann LJ, in Campisi at 565, called “a material change of circumstances since the original decision”.

The effect of the reasoning of the House of Lords in Fahia is that, at least under Part III of the 1985 Act, on receipt of what purports to be an application, an authority are bound to make inquiries, if they have reason to believe that the applicant is or may be homeless, unless the purported application can be shown to be no application. The only relevant basis upon which a purported subsequent application may be treated as no application, according to Fahia at 1402D, appears to be where it is based on “exactly the same facts as [the] earlier application”. That is a rather different formulation from the “material change of circumstances since the original decision”, as stated in Campisi at 565, and as applied in McBain at 1356C to E.

It is worth examining the possible distinction between the two tests, or approaches, in a little more detail in order to identify the differences between them. In this connection, Mr Luba identified three different distinctions, which were challenged by Mr Rutledge. Those arguable distinctions were as follows.

First, Mr Luba contended that the requirement of “exactly the same facts” in Fahia is a more precise test, which is harder to satisfy, than that of a “material change in circumstances” as discussed in Campisi and McBain. In my judgment, that contention is plainly correct. It is well demonstrated by contrasting Lord Browne-Wilkinson’s description of the former test as involving “very special cases”, with McCullough J’s observation in Chambers at 30, that he would expect an authority to be able to reject a subsequent application “in the majority of such cases”, presumably referring to the latter test.

Secondly, Mr Luba argued, there is the difference in the relevant date and manner by which one assesses whether the subsequent application is “exactly the same” as the earlier one. He contended that the reasoning in Fahia leads to the conclusion thatthe reference date of comparison must be the date upon which the earlier application was made, and the circumstances at that date must be assessed by reference to the facts revealed in the document by which that application was made. That is said to follow from Lord Browne-Wilkinson’s reference at 1402C to the subsequent application having to be “based on exactly the same facts as [the] earlier application”, an expression substantially repeated at 1402E. The difference between that and the reference date applied in the previous cases can be seen from the reference of Ackner LJ, in McBain at 1356D, to the change in circumstances having to be such as to render “the accommodation originally offered … quite unsuitable”, which must involve referring to the date of offer of accommodation (or the date of review, if requested) pursuant to the earlier application. The difference can also be seen from Schiemann LJ’s formulation in Campisi at 565, cited above.

Although I was initially attracted to that contention, and I still appreciate its force, I have come to the conclusion that Mr Rutledge is right in his argument on this point. He said that, on receiving a subsequent purported application, an authority should compare the circumstances revealed by that application with the circumstances as they were known to the authority to have been at the date of the authority’s decision (or their review, if there was one) on the earlier application, in order to determine whether the subsequent application is “no application”. It is true that Lord Browne-Wilkinson in Fahia referred to “exactly the same facts as his earlier application” and “identical with the earlier ... application”. However, he did not expressly direct his observations to the contents of the earlier application document, or to the moment the earlier application was made. In my judgment, Mr Rutledge’s argument on this point accords with common sense, is consistent with the approach in McBain and Campisi, and does not conflict with what Lord Browne-Wilkinson said in Fahia.

In this connection, it is clear that (reflecting the approach of the court in McBain) Schiemann LJ in Campisi at 563 took the view that the validity of a subsequent application must be judged by reference to whether there has been a change of circumstances since “the original decision”. The good sense of taking the circumstances as they were known to be when the earlier application was disposed of, as opposed to the circumstances as revealed in the earlier application document, is self-evident. Further, it seems to me that it is not a misuse of language to judge the circumstances or “facts [of an] application” by reference to the actual facts when the earlier application concerned was determined (or reviewed), rather than the facts as they were alleged by the applicant on the date he or she made that application. Such an interpretation is reinforced in the present context by the fact that an authority must consider an application under Part VII of the 1996 Act by reference to the actual circumstances as they exist as at the date of the decision, or of the subsequent review (if there is one): see Ealing London Borough Council –v- Surdonja [2001] QB 97. This conclusion does not conflict with the disavowal of “non-statutory inquiries” in Fahia, because those were inquiries into the facts of the subsequent purported application (i.e. other than those revealed by the document making the subsequent application), not inquiries which the authority will already have made into the circumstances of the previous application.

The third distinction propounded by Mr Luba is the different nature of the inquiry into the circumstances of the subsequent application, in order to determine if they are “identical” with those of the earlier application. It is in connection with this third aspect that the potentially detailed non-statutory inquiries disapproved of by Lord Browne-Wilkinson must be considered. Such inquiries would be inevitable if one was considering the circumstances as they are discovered to exist after inquiries following receipt of the subsequent application, as opposed to the circumstances revealed by the document in which that application was made. Before Fahia, the approach approved by this court in McBain and Campisi would have involved such non-statutory inquiries into the prevailing circumstances to determine whether the subsequent application was valid. Following Fahia, such inquiries would be inappropriate, and it must follow, as Mr Luba submits, that the circumstances of the subsequent application must, at least in the absence of unusual facts, be taken to be those revealed by the document by which the subsequent application was made. In other words, the question whether a subsequent purported application is valid must, in this connection, be judged by reference to the application document (and any accompanying information) itself.

Accordingly, in order to check whether a subsequent purported application is based on “exactly the same facts” as an earlier application, the authority must compare the circumstances as they were at the time when the earlier application was disposed of (i.e. when it was decided or when the decision was reviewed) with those revealed in the document by which the subsequent application is made (and any other associated documentation). This should prove less onerous on the authority, and should involve less delay and uncertainty for the applicant, than if the comparison was with the circumstances as they are discovered after inquiries by the authority to be after receipt of a subsequent application.

The approach of the House of Lords in Fahia turned on the proper construction of Part III of the 1985 Act, and section 62 in particular. That section provided:

“(1)

If a person … applies to a local housing authority for accommodation … and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.

(2)

If they are so satisfied, they shall make any further inquiries necessary to satisfy themselves as to

(a)

whether he has a priority need, and

(b)

whether he became homeless or threatened with homelessness intentionally …”.

The wording and structure of the effectively equivalent provisions of the 1996 Act, sections 183(1) and 184(1), are somewhat different. Nonetheless, it appears to me that the reasoning in Fahia in relation to the 1985 Act is equally applicable to the 1996 Act. Section 183(1) provides in unambiguous terms that “[t]he following provisions apply” once two conditions are satisfied, namely, that “ a person applies … for accommodation” and that “the authority have reason to believe that he is or may be homeless or threatened with homelessness”. The immediately ensuing section 184(1) then provides that, if they have reason so to believe, the authority “shall make … inquiries …” as to (a) whether the applicant is eligible, and (b) what, if any “duty is owed to him”.

In my judgment, it is clear, as a matter of ordinary language, that, once there is a genuine and effective application, and once the authority are satisfied that the applicant is or may be homeless, or threatened with homelessness, the operative part of section 183 is engaged, and the “following provisions” become effective. They include section 184(1), which plainly obliges the authority to make inquiries in relation to the matters identified in paras (a) and (b) thereof. So far as para (a) is concerned, eligibility is governed by section 185. As to para (b), the potential duties consist of an interim duty, set out in sections 188 to 189, and final duties, set out in sections 190 to 193. The circumstances in which those duties arise are set out in those sections, as expanded in other sections, as explained above.

I consider that there is no room to imply a further requirement which has to be satisfied, such as establishing a material change of circumstances since the refusal of an offer of accommodation pursuant to an earlier application, before the clear words of sections 183 and 184 can take effect. Any such implication faces insuperable difficulties in light of the decision, but also the reasoning, in Fahia. A person seeking to imply words into a Statute faces a difficult task: it is a course which can only be justified in clear and unusual circumstances. Where the implication involves imposing a further requirement, over and above express requirements imposed by the legislature, the task is, in my view, particularly difficult.

Quite apart from the difficulty in light of the reasoning in Fahia, and the difficulty as a matter of principle, I consider that there are other problems with the contention that an applicant making a subsequent application must show a material change of circumstances as suggested in McBain and Campisi. First, there is the absence of any statutory requirement in the 1996 Act that an authority investigate whether there has been a material change in circumstances. Secondly, there would be no duty on the authority to provide interim housing under section 188 for a priority need applicant making a subsequent application, while the authority investigated whether there had been a material change of circumstances; this would be particularly unfair in a case where there had been such a change.

Thirdly, the review and appeal procedures in sections 202 and 204 would not apply to a decision that there had been no material change of circumstances, unless section 202(1)(b) could be given an artificially extended meaning. Fourthly, there is the apparently unqualified right granted by section 193(9). That sub-section appears to envisage that, in a case such as this, or in any other case where a section 193 duty has been satisfied, the person concerned can make “a fresh application” (an expression used in some of the cases referred to above). Section 193(9) therefore seems to acknowledge that a subsequent purported application at least can be an application for section 183 purposes. In my judgment, it would be putting too much weight on the word “fresh”, in its context in section 193(9), to suggest that, without more, it carries the implication of a material change of circumstances since the earlier application had been satisfied or had been the subject of a refused offer.

The notion that a purported subsequent application would be an application for the purposes of section 183, unless it was based on precisely the same facts as an earlier application when that earlier application was finally disposed of, largely (although, I accept, not completely) avoids these problems. Such an interpretation is consistent with the reasoning in Fahia. It involves implying very little, if anything, into section 183(1), and nothing into any other provision of the 1996 Act. It does not cut across section 193(9). It could be said to involve a non-statutory inquiry with some concomitant delay. However, that inquiry would simply involve a comparison of the subsequent purported application with the already established facts applicable at the time the earlier application was disposed of. Accordingly, it would be a simple inquiry, and any consequent delay would, at least normally, be very slight. Further, as Lord Browne-Wilkinson implied in Fahia, one would expect it to be a relatively rare case where the facts of the two applications would be “exactly the same”.

I turn now to the consequences of this analysis. I deal first with the present case. On the first application, the Applicant had priority need and was not homeless intentionally, so section 193 applied; the Council’s duty under that section was then discharged by virtue of section 193(7). By the time the second application was made, there were said to be three facts which had changed since the making of the first application. Of the three new factors cited by the Applicant, the birth of her second child cannot be relied on, because that had occurred by the time Johnson House was offered to her (and the fact she had two children was taken into account by the Council when they offered Johnson House as appropriate accommodation for her). However, the other two factors the Applicant cites, namely that one of her brothers had started to reside in Mark House, and another brother, with his heroin addiction, had also moved in, make good her contention that the second application was not “identical” to, or on “exactly the same facts” as, the first. Accordingly, the second application was a valid application made under section 183 of the 1996 Act, and should have been accepted and treated as such by the Council.

However, there may well be an argument that the Applicant can no longer claim to be involuntarily homeless, on the basis that she had to vacate, i.e. she “cease[d] to occupy”, 160 Tredegar Road as a result of “deliberately do[ing] or fail[ing] to do [some]thing” (see section 191), namely, to accept the offer of Johnson House. I am not saying that that would be the case: there is no need for us to decide the point, and it would be wrong to do so, as it does not arise at this stage, and it has not been argued. However, it is only right to add that there is an argument to the contrary, along the lines that the Applicant’s subsequent occupation of Mark House, and the change in circumstances since the first application, may enable her to say that she is now newly involuntarily homeless.

Looking at the matter more generally, as was recognised by Lord Browne-Wilkinson in Fahia, it cannot be pretended that this conclusion produces consequences which are fully satisfactory, whether assessed from the point of view of applicants or that of housing authorities. The concern expressed by the courts in the cases before Fahia, namely, that a voluntarily homeless person, with apparent priority need, entitled only to temporary accommodation under section 188, can effectively be housed indefinitely through the medium of successive applications, has obvious force. The possibility of an applicant, whose rights have been exhausted (especially in cases where that could be said to arise from his default) being able to resurrect some or all of those rights, simply by making another application, seems surprising. Further, as Mr Luba accepts, the consequences of housing authorities having to accept and investigate any subsequent application will result in their already stretched human and financial resources being subjected to even greater pressure.

However, it seems likely that, at least in the great majority of cases involving successive applications, the time will come, often fairly soon, when one of the subsequent applications will be based on precisely the same facts as its immediate predecessor application, and will accordingly be treated as of no effect. Further, while clearly significant, the burden imposed on housing authorities by the prospect of successive applications can be exaggerated; on a subsequent investigation, they will often be able to rely, in many respects, on the results of their investigations on the earlier application. In any event, it should not cause particular surprise if the legislature has adopted a relatively indulgent attitude to people whom Part VII of the 1996 Act is designed to protect, namely, the homeless. Finally, as Lord Browne-Wilkinson said in Fahia at 1403F, any problem in this connection is for the legislature, not the judiciary, to solve.

Finally on this, the main, point on the appeal, prompted by Pill LJ, I think it may be helpful to give some guidance as to the approach housing authorities should adopt to subsequent applications under Part VII of the 1996 Act. Inevitably, any such guidance must be of a general nature, because each application must be dealt with on its own particular merits. Nonetheless, in light of the difficulties thrown up by the legislation, and the fact that the decision in Fahia has not always been correctly applied, it should assist housing authorities in their difficult task, and indeed applicants and those advising them, if we give such guidance as we can.

First, it seems to me that it is for an applicant to identify, in the subsequent application, the facts which are said to render that application different from the earlier application. If the authority are to assess the question of whether the circumstances of the two applications are “exactly the same” by reference to the facts revealed by the document by which the subsequent one is made, then that, I think, must be the logical, indeed the inevitable, consequence. Accordingly, if no new facts are revealed in that document (or any document accompanying it or referred to in it), the authority may, indeed, at least normally, should, reject it as incompetent.

Secondly, if the subsequent application document purports to reveal new facts, which are, to the authority’s knowledge, and without further investigation, not new, fanciful, or trivial, then the same conclusion applies. The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application. It is not appropriate to expand upon what may constitute or are fanciful or trivial alleged new facts, because that must inevitably turn on the particular circumstances of the particular case.

Thirdly, I turn to a case where the subsequent application document appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant’s purposes on investigation. In such a case, I consider that the authority must treat the subsequent application as a valid application, because that is what it is, in light of the reasoning of the House of Lords in Fahia. In particular, I do not consider that, in such a case, the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would, in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be comparatively short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act.

These observations should not be seen as an invitation to applicants under Part VII of the 1996 Act, or to their advisers, to invent new “facts” to justify a second application. The inclusion of invented new facts in such an application under Part VII, with a view to thereby benefiting from its provisions could clearly result in criminal proceedings against all those involved.

The Judge made no order for costs on the ground that the Applicant’s success was “probably … entirely Pyrrhic”. He reached this conclusion because he thought it very likely that the Council would reject the second application for accommodation once they applied the correct test. As I understand it, this was on the basis that it was almost inevitable that the Council would conclude that the Applicant had become homeless intentionally, as her present homelessness was ultimately attributable to her unreasonable rejection of the offer of Johnson House.

Mr Luba contended that (a) this approach involved an impermissible speculation which may turn out to be wrong, and (b) even if it turned out to be right, the Judge overlooked the fact that the Applicant would benefit from her success on the appeal. In my opinion, both contentions are correct, and it is right to record that, to his credit, Mr Rutledge did not seek to argue the contrary, and, indeed, pointed out that the Judge’s reasoning on this aspect was not prompted by any argument advanced on behalf of the Council.

While I fully sympathise with the Judge’s desire not to add to the Council’s financial burdens by imposing an order for costs on them, there were no grounds on which he could properly have avoided making such an order. As already mentioned, it is possible that the Council may conclude that the Applicant is intentionally homeless, and that such a decision would be upheld on a review and an appeal. However, it is simply inappropriate to reach any conclusion, even of a provisional nature, on that issue in these proceedings. The decision is initially one for the Council, properly directing themselves, and the Court can only become involved in considering the point on a section 204 appeal from the Council’s section 202 review of that decision.

Quite apart from this, even if the Council were to reach the decision anticipated by the Judge (and the decision were upheld on review and on appeal), the Applicant’s success on the instant appeal would not have been pyrrhic. She would, as an applicant with priority need, be entitled to temporary accommodation under section 188; she would be entitled to advice and assistance under section 190; and she would also be entitled to a degree of preference in the Council’s allocation of housing under section 167 in Part VI of the 1996 Act (a section to which I have not so far made reference).

For the reasons given above, I conclude that:

I agree.

On 20 February 2004, the Council’s Homeless Officer wrote to the applicant in the following terms:

“I refer to your application on 09.02.04 for assistance under the provision of Part VII of the Housing Act 1996 and write to notify you of my decision.

You previously approached this Council for homeless assistance on 29^th September 2000 when you made a joint application with your husband. Following our investigations you were accepted for re-housing on 31 October 2000. On 07^th November 2000 you were offered a secure tenancy at 37 Johnson House, Roberta Street, London E2. You refused this offer and a review of this decision was requested. The review decided that the offer that had been made to you had been suitable and reasonable, and that the Council’s duty towards you had ceased. You were issued with a Notice to Quit the accommodation that had been provided for you under homeless legislation at the above address.

I am satisfied that this Council ceased its duty towards you when you were offered 37 Johnson House, Roberta Street, London E2.

Following your new application, I am now obliged to consider whether there has been any material change in your circumstances since the Council ceased its duty towards you.

I have now carefully considered your new application for assistance. However, I am satisfied that there has been no material change in your circumstances. There has been no relevant change in the composition of your household.

There has not been any break in the chain of your homelessness, as you have not found any settled accommodation since the Council ceased its duty to you on 29 May 2002.

I note your accommodation while at 41 Mark House, Sewardstone Road, Bethnal Green, London E2 was considerably overcrowded.

I further note that your father had ejected you prior to your homeless application in September 2000 and that you have stated that he took you back in 2002 on a temporary basis. I note your father confirms he was assisting you on a temporary basis until you were able to find other accommodation.

I have asked you if there are any medical problems in your household and you have told me that there aren’t any, which was the same situation when the offer was made in November 2000.

Accordingly, I am satisfied there has been no material change in your circumstances. This Council has no obligation to secure any accommodation for you and your family.”

The applicant was told of her right to request a review of the decision. A review was requested on the basis that the facts disclosed a “material change in circumstances”. The applicant relied on the decision of this court in R v Ealing Borough Council ex p McBain [1985] 1WLR 1351. On review, the Council, on 4 May 2004, confirmed their view that there had been no material change in circumstances. On that view, and if that is the correct test, further statutory duties do not arise.

The main issue arising for decision is whether what Neuberger LJ has described as the “material change in circumstances” test, applied by the Council in reaching their decision not to perform statutory duties, was rejected by the House of Lords in R v Harrow London Borough Council ex parte Fahia [1998] 1WLR 396 and replaced by a requirement to perform statutory duties unless the new application was based on “exactly the same facts” (paragraph 39 of the judgment of Neuberger LJ). The construction issue is to be considered in the light of cases decided upon the Housing (Homeless Persons) Act 1977 (“the 1977 Act”), the Housing Act 1985 (“the 1985 Act”), Part III and the Housing Act 1996 (“the 1996 Act), Part VII. I agree with Neuberger LJ that the reasoning in Fahia, decided under the 1985 Act, is equally applicable to the 1996 Act.

The material change of circumstances test is well established. Neuberger LJ has recited, at paragraph 30, the headnote in McBain, decided under the 1977 Act. At 1356G to H, Ackner LJ stated:

“Of course, where a housing authority, pursuant to its statutory obligation under the Act of 1977, makes a proper offer of accommodation which is unreasonably declined, the housing authority has at that stage performed its statutory obligation. In my judgment, however, it can be properly inferred from the provisions of the Act that the obligation is revived by a material change in the circumstances of the applicant. To establish a material change, the applicant must show that there has been such a change in his or her circumstances as to make the accommodation previously offered clearly unsuitable. Because conditions vary from area to area, in judging the alleged unsuitability regard must be had to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he or she has applied. If the applicant can establish such a situation, as indeed Miss McBain has done, then he or she has established an occasion which requires the duty to be performed yet again.”

Neill LJ stated, at page 1358B to D:

“Once it is conceded, as it is in the present case, that the extent of the priority need has changed and that the accommodation which was put forward in the July 1983 offer would no longer be suitable for the needs of the applicant and her present family, it seems to me to follow inexorably that the occasion requires the duty to be performed again.

In my judgment the council have misdirected themselves and the court is therefore entitled to intervene.

I would wish to add, however, that it is my opinion that in the absence of a clear misdirection the court should be very slow to interfere with the assessment by a housing authority of the question whether the priority need had changed to such an extent as to make any previous offer of accommodation an inadequate response to the current need.”

Other cases where the same approach was followed have been cited by Neuberger LJ. For the applicant, Mr Luba QC submits that McBain and Campisi (considered later) belong to a different era and will have to fall away.

An issue will often arise between a Council and an applicant when a person deliberately leaves accommodation and is homeless or when, as in the present case, accommodation has been refused by an applicant and homelessness occurs. In R v Brent London Borough Council ex parte Awua [1996] 1 AC 55, a decision cited in Fahia, the House of Lords considered the meaning of the word “accommodation” in Sections 58(1) and 60(1) of the 1985 Act. Section 60(1) defined intentional homelessness as follows:

“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”

Lord Hoffmann, with whom the other members of the Appeal Committee agreed, considered Dyson v Kerrier District Council [1981] 1WLR 1205 and whether there had been a causal link between Miss Dyson deliberately leaving a flat in Huntingdon and her subsequent homelessness in Cornwall. If so, she was intentionally homeless. Lord Hoffmann continued at 69A-E:

“What constitutes such a causal link? In Din (Taj) v Wandsworth London Borough Council [1983] 1 A.C. 657 Lord Wilberforce referred with approval to the analysis of Ackner LJ in the Court of Appeal (unreported), 23 June 1981; Court of Appeal (Civil Division) Transcript No. 372 of 1981. He summarised it, at p.668, by saying that a disqualification on the grounds of having made oneself intentionally homeless (such as attached to Miss Dyson when she left Huntingdon) was not displaced by obtaining temporary accommodation. Ackner LJ had said (in a passage later cited by the Court of Appeal in Lambert v Ealing Borough Council [1982] 1 WLR 550, 557):

“To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as a ‘settled residence,’ as opposed to what from the outset is known (as in Dyson’s case [1980] 1 WLR 1205) to be only temporary accommodation. What amounts to “a settled residence” is a question of fact and degree depending upon the circumstances of each individual case.”

The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. This jurisprudence is well-established (it was approved by this House in Din’s case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. It is the importation of the distinction between settled and temporary accommodation into other questions arising under Part III of the Act which seems to me unwarranted.”

In Fahia, the question, raised but not answered, by Lord Hoffmann in Awua, was in issue, that is whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. Mr Toulson QC, sitting as a deputy High Court Judge, held (R v Harrow London Borough Council ex parte Fahia (1997) 29 HLR 94) that the local authority had misdirected themselves in law in treating fresh settled accommodation as the only possible form of break in the chain of causation between an act or omission causing deliberate homelessness and any subsequent homelessness (p.103).

The local authority challenged that finding in this court. The court dismissed the appeal (R v Harrow London Borough Council ex parte Fahia (1997) 29 HLR 974), agreeing with the judge that “the causal link can be broken by events other than the acquisition of what can loosely be described as a “settled residence”, as opposed as to what at the outset is known only to be temporary accommodation.”

Roch LJ, with whom Leggatt LJ and Aldous LJ agreed, stated, at page 982:

“In my judgment a person does not cease to be “intentionally homeless” merely by obtaining accommodation. The person may cease to be homeless but the intentionality can survive and will survive, unless either the accommodation obtained is in the nature of a settled residence or there occurs some other supervening event or events, such as the break up of a marriage which means that the original intentionality is no longer causative or effective.”

Having referred to the statement of Ackner LJ cited by Lord Hoffmann in Awua, Roch LJ continued, at page 983:

“The correct position, in my judgment is this: once a person becomes homeless intentionally he disqualifies himself from being entitled to make an application under s.62 of the Act. If such a person does make an application, a local authority’s duty is to enquire whether the self-imposed disqualification survives or whether it has been removed by the acquisition of “a settled residence” or by the occurrence of some other material intervening event or events.”

The local authority sought to challenge that finding in the House of Lords. In an opinion with which the other members of the Appeal Committee agreed, Lord Browne-Wilkinson stated, at page 1401E to G:

“In the present case both the judge and the Court of Appeal held that the chain of causation could be broken in ways other than by obtaining intervening settled accommodation. Accordingly they held that the local authority had misdirected itself in looking only to the question whether Mrs Fahia had obtained interim settled accommodation. Harrow petitioned for leave to appeal to resolve this doubtful point of law and leave, I assume, was given on that basis. But in fact Harrow, in its written case, conceded that the chain of causation could be broken by means other than the obtaining of intervening settled accommodation. Your Lordships are invited, despite this concession to decide the point. But I understand that all your Lordships share my view that, in the absence of argument to the contrary, it would not be right to do so. The point may be one of some importance to local authorities generally and your Lordships should decline to express any view, one way or the other, on the point. The appeal must go forward on the concession that the local authority could not determine Mrs Fahia’s rights simply by deciding that there had been no intervening settled accommodation.”

I share Lord Browne-Wilkinson’s belief as to the basis on which leave was granted. Having conceded the point on which leave had been granted, I find it difficult to understand why they proceeded to appeal to the House of Lords against a decision which, on the present issue, was substantially in their favour. Roch LJ considered the case of McBain at length and clearly believed he was following it. The Council themselves raised the present issue.

That being so, Lord Browne-Wilkinson went on to consider, under the heading ‘Duty to inquire’ whether, if a second application is received from the same applicant, the local authority having discharged their statutory duties in relation to one application for accommodation, are: “bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a “threshold test” which the second application must satisfy if it is to be treated as an application under the Act?” (p1401H)

At paragraphs 35 and 36 of his judgment, Neuberger LJ has set out most of Lord Browne-Wilkinson’s answer to that question, which is contained in two paragraphs on page 1402 in Fahia and I will not repeat it. Neuberger LJ has not, however, cited a sentence and a part of another sentence from page 1042 which, in context, cause me considerable difficulty. The first is the last sentence of the first paragraph in which Lord Browne-Wilkinson states:

“It is impossible to say that there has been no relevant change in circumstances at all”.

That suggests that a “change of circumstances” test may remain apposite. I return to the point later.

The second is in the immediately following few words where Lord Browne-Wilkinson expresses agreement with the judge and the Court of Appeal. The agreement is expressed to be with the proposition that “there was no short cut available to [the local authority] by way of so-called “non-statutory” inquiries.”. The present point had not, however, been in issue, Mr Toulson QC deciding the case on the basis set out in paragraph 76 of this judgment and the Court of Appeal on the basis in paragraph 77. Neither the judge nor the Court of Appeal cast doubt on McBain and Roch LJ stated what he regarded as the “correct position”: “Once a person becomes homeless intentionally he disqualifies himself from being entitled to make an application under Section 62 of the Act”. McBain was not cited orally in the House of Lords, either in the speech of Lord Browne-Wilkinson or in the oral submissions.

The position is further complicated by the fact that between the date of submissions and decision in the House of Lords in Fahia, the disputed point was before this court in R v SouthwarkLBC ex parte Campisi (1999) 31 HLR 560. Schiemann LJ, with whom Peter Gibson LJ and Mummery LJ agreed, stated at page 562:

“It is common ground that, that offer was of suitable accommodation as at that date and that, as at that date, the local authority discharged the duty imposed by section 65(2) [of the 1985 Act]. In the absence of any changes thereafter, either in the applicant’s situation or of the conditions of the house, nothing more was required of the local authority under the Act. It is common ground and established in a case called R v Ealing L.B.C. ex p. McBain [1985] 1 WLR 1351, in the Court of Appeal, that if there were such changes then a duty might arise.”

At page 563, Schiemann LJ stated:

“The statute in the present case makes no express provision as to what is to be done in the case of repeated claims for accommodation by the same person. The second claim may be identical to the first (“a repetitious claim”) or it may be different (“a fresh claim”). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim, whereas a repetitious claim does not.

In the case of a repetitious claim, no more is required to be done. The first decision has ensured that the authority has complied with its legal duty. In the case of a fresh claim, the local authority must make a decision on that fresh claim. The difficulty lies in the cases where the claimant asserts that she has made a fresh claim, whereas the local authority categorises the claim as repetitious; by what test is this dispute as to categorisation to be resolved? In my judgment, the local authority is entitled to proceed by starting with the assumption that the first decision as to suitability was correct and then going on to consider whether, disregarding material which is insignificant or incredible, or which was available to the applicant at the time of the determination of his first claim, the new material placed in front of the local authority gives reason to believe that the decision as to homelessness ought to be reversed. This process inevitably involves making a judgment as to the significance and credibility of the new material.”

The court upheld the decision of the judge that the local authority did have a duty but on the basis that they should have considered whether or not there had been a “material change of circumstances” (p565) since the original decision and had failed to do so.

In two first instance cases since Fahia, local authorities refused to consider second applications for assistance. Fahia was applied in both cases. His Honour Judge Wilkie, sitting as a deputy High Court Judge in Jeylani v London Borough of Waltham Forest [2002] EWHC 487 (Admin), stated that the local authority “could not but have concluded that this was an application which they are obliged to entertain”. In R (Kelly Griffin) v London Borough of Southwark [2004] EWHC 2463 (Admin) Silber J stated that “an applicant is entitled to have a further section 184 [of the 1996 Act] application considered by the local authority provided there is a different factor or factors in the second application compared with the previous one”. Silber J considered that “the threshold for accepting a second application is expressed to he higher in Campisi than in Fahia.”

I have sympathy, as did Lord Browne-Wilkinson in Fahia, with the local authority. In the present case they are seeking to apply a test long approved in this court, followed by the Court of Appeal in Fahia, and find it apparently overruled in a case in which the leading case in this court was not considered. However, I too have come to the conclusion that the approach stated by Lord Browne-Wilkinson at page 1402B to F of Fahia is to be followed by local authorities.

Upon the wording of the statutes, I do respectfully see the force of the approach stated by Lord Browne-Wilkinson, as elaborated in the judgment of Neuberger LJ in this case. It is in my view inconsistent with and very different from the approach in the other cases. It allows for serial applications, as Mr Luba recognised. Roch LJ’s judgment in the Court of Appeal in Fahia that “once a person becomes homeless intentionally he disqualifies himself from being entitled to make an application under Section 62 of the Act”, apparently approved in the House of Lords, has to be read as being disqualified from making a successful application if, on completion of statutory inquiries, he is found to be intentionally homeless. He is not disqualified from making the application, provided Lord Browne-Wilkinson’s conditions are satisfied, and the full statutory duties are activated.

When going on to consider whether the homelessness is intentional, the duty to inquire whether the “self-imposed disqualification survives”, as Roch LJ put it, the test which emerges from the cases from Awua onwards, including the Court of Appeal in Fahia, in my view continues to apply. That includes a reluctance in the courts to interfere with the local authority’s assessment. I do not consider that the House intended in Fahia to overrule or did overrule that approach to the question whether homelessness was intentional.

I agree with Neuberger LJ that it follows from the factors he has identified in paragraph 54 of his judgment that, by reference to Lord Browne-Wilkinson’s test in Fahia, a second application has been made in this case. As in Fahia, it is impossible to say “that there has been no relevant change in circumstances at all”. While accepting the major change achieved by Fahia, I do, however, question whether Lord Browne-Wilkinson intended to go quite as far as to lay down that a subsequent application would be an application for the purposes of Section 183 of the 1996 Act “unless it was based on precisely the same facts as an earlier application”, the expression used by Neuberger LJ at paragraph 53, accepting Mr Luba’s submission.

The expression used by Woolf J in Delahayev Oswestry Borough Council (The Times 29 July 1980), cited with approval by Lord Browne-Wilkinson, was that a would-be applicant cannot “rely solely upon the same matters as he relied on in support of his earlier application”. That approach requires some inquiry by the local authority into what matters are now relied on, with a view to deciding whether they are same matters or whether there are new matters.Moreover, in concluding in Fahia that “it was impossible to say that there had been no relevant change of circumstance”, Lord Browne-Wilkinson appears to have been keeping alive the concept of change of circumstance applied in other cases.

Because time has passed, the facts will never be precisely the same. To remove any and all entitlement to investigate the contents of an application form would be to encourage bogus claims, to the detriment of applicants generally. I would maintain some entitlement to inquire into the contents of the form with a view to deciding whether a relevant new matter can realistically be asserted to be present. The extent of that entitlement will depend on the facts of the particular case.

In the event, I agree that the authority misdirected themselves in this case and that the appeal should be dismissed. (There was also a misdirection, subject to the point being considered in the House of Lords, as to what can constitute a “break in the chain of homelessness” (paragraph 6 of letter of 20 February 2004) but that has not been argued in this court.) The letter of 20 February 2004 was correctly taken as a refusal of the application and the review and appeal mechanisms were correctly engaged.

I agree with the submission of Mr Rutledge for the Council that what is to be compared with the new application are the circumstances when the earlier decision was taken, or at the date of review, if there was one. That approach has the authority of McBain and of Campisi and I do not consider that Lord Browne-Wilkinson was seeking to alter it. The application subsists until the moment of decision and the decision maker must consider an applicant’s then current situation (Ealing London Borough Council v Surdonja [2001] QB 97). I see no practical advantage in taking a snapshot at the moment of the first application. The picture may have changed in the period before decision, sometimes in a way which is disadvantageous to the person who seeks to make a later application. To ignore circumstances at the date of the first decision would in my view be unrealistic and contrary to good sense and precedent.

I agree with Neuberger LJ that the cross-appeal should be allowed.