Mohamed v The City of Westminster

J U D G M E N T

1. LORD JUSTICE TUCKEY: I will ask Mr Justice Wilson to give the first judgment in this case.

2. MR JUSTICE WILSON: The appellant, a mother who lives with her three children aged between eight and twelve, contends that the respondent ("Westminster") owes her, as a homeless person, a duty to provide accommodation for her with them, pursuant to section 193 of the Housing Act 1996 "the Act". Westminster denies that it owes her any such duty.

3. Westminster's decision, dated 15 July 2004, was that no such duty arose because it was satisfied that the appellant was homeless intentionally. Pursuant to section 202 of the Act the appellant requested Westminster to review its decision; but the decision on review, dated 24 September 2004, was to uphold the decision dated 15 July. Pursuant to section 204 of the Act, the appellant appealed against the review decision on the basis that it was defective in law; but His Honour Judge Wakefield, sitting in the Central London County Court on 15 February 2005, dismissed her appeal. Now, by way of second appeal, she appeals to this court against the judge's decision. If the review decision was indeed legally defective, the judge should have so held and we should allow the appeal. Thus it is that, as Auld LJ observed in this court in Osmani v London Borough of Camden , 16 December 2004, [2004] EWCA Civ 1706, at [34]:

"... the main focus of attention on a second appeal such as this should be on the decision of the Council rather than of the County Court Judge on appeal from it."

4. The appellant, a Dutch citizen of Kuwaiti birth, moved with the children from Holland to London in about May 2002. In January 2003, after living for eight months in temporary accommodation, she applied to Westminster for accommodation on the basis that she was homeless. By letter dated 21 March 2003 Westminster rejected her application on the basis that, when she had left her flat in Holland, she had become homeless intentionally and that she so remained. She sought a review of that decision; but the decision on review, dated 20 May 2003 and conducted on behalf of Westminster by Mr Perdios, was to uphold the decision dated 21 March. It was Mr Perdios who also conducted the review dated 24 September 2004 and, in reaching his later conclusion, he reaffirmed his earlier conclusion that in May 2003 the appellant had been intentionally homeless and in effect worked from that premise.

5. Although before the judge the appellant challenged the conclusion of Mr Perdios upon the second review that in May 2003 she had been intentionally homeless, she no longer contends that such a conclusion was unlawful. Accordingly today's appeal proceeds on the basis that, in leaving her flat in Holland in May 2002, the appellant became intentionally homeless and that, by May 2003, she so remained. The issue is whether it was lawful for Mr Perdios to conclude that, by September 2004, she still so remained.

6. In this regard the argument turns on the fact that between about 16 May 2003 and 18 May 2004, the appellant, with the children, occupied a one-bedroom furnished flat off Praed Street, Paddington, which, by agreement 16 May 2003, she rented on an assured short-hold tenancy for a term of 6 months from that date at a rent of £245 per week (i.e. £12,740 per annum). At some stage after May 2003 the appellant applied for housing benefit and in due course she was awarded it, but in the sum only of £200 per week, which was applied towards her rent. Arrears built up, albeit to an extent which is far from clear. The appellant sought to appeal against the assessment of housing benefit. Before the appeal was determined, however, the landlord had taken proceedings for possession of the flat (without apparently including a monetary claim); had on 21 January 2004 obtained a possession order; and had, on about 18 May, caused it to be enforced by eviction. It was at that point that the appellant reapplied to Westminster for accommodation.

7. We arrive, therefore, at the issue at the heart of the case: was it lawful for Westminster, by Mr Perdios, to conclude in September 2004 that the status of the appellant in May 2003 as intentionally homeless had thereafter remained unchanged, notwithstanding her occupation of the flat in Paddington for the whole of the following year?

8. Section 191(1) of the Act provides:

"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."

The predecessor of section 191(1), namely section 17 Housing (Homeless Persons) Act 1977, which was in terms identical to it, was criticised as poorly drafted, particularly in relation to the treatment of "occupation of intermediate accommodation between what might be said to be intentional homelessness ... and the ultimate homelessness ... which leads the applicant to go to the ... local authority": as per May LJ in Lambert v Ealing LBC [1982] 1 WLR 550 at 558H - 559A. Nevertheless, it has been clear ever since the decision of the House of Lords in Din v Wandsworth LBC [1983] AC 657 first that, in the words of Lord Fraser of Tullybelton at 672F "... there must be a continuing causal connection between the deliberate act in consequence of which homelessness resulted and the homelessness existing at the date of the inquiry"; and second that, in the words of Lord Wilberforce at 688A-B, the continuation might be broken by "settled", but not by "temporary", accommodation occupied by the applicant in the intervening period. Thus in Lambert , decided in this court two months after the decision in Din , consecutive occupation of two homes under "holiday lets" for a total period of 18 months was held not to be settled and thus not to alter the applicant's previous status as intentionally homeless. More recently, in R v Brent LBC ex parte Awua [1996] AC 55, Lord Hoffmann, distinguishing this line of authority from the principles applicable to Miss Awua's case, said of it at 69D-E:

"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 cause 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."

In R v Harrow LBC ex~parte Fahia (1997) 29 HLR 974, it was held by this court (albeit left open on subsequent appeal to the House of Lords) that, as Lord Hoffmann had foreshadowed, the chain of causation could be broken by other than the obtaining of intervening settled accommodation. But no such other factor is raised by the present case. Lord Hoffmann's words also usefully stress that the question under section 191(1) as to whether it "would have been reasonable for the [applicant] to continue to occupy" accommodation relates to the accommodation which the applicant ceased to occupy as a result of deliberate act or omission (ie in this case to the flat in Holland) rather than to any subsequent accommodation.

9. In the light of the above uncontroversial principles, I turn to the reasons for Westminster's decision, given in the letter from Mr Perdios dated 24 September 2004. He wrote:

"... R v Harrow LBC ex~parte Fahia clearly states that a local authority should not confine its consideration to whether any intervening accommodation had been 'settled'. However, this is in circumstances where unintentional homelessness might result from the loss of non-settled accommodation if the causal link back to the original homelessness was broken. Whether one considers the accommodation as settled or not is therefore not the main issue as the main issue is one as to whether or not the causal link back to your original homelessness when you abandoned the accommodation in Holland was broken. Considering all the information available to me I am not satisfied that your occupation of the accommodation [in Paddington] did indeed break the causal link back to your original homeless.

From your interview with Celina Dennis, it is evident that you acquired this accommodation with the view of then reapplying to this Authority, as you had previously been found intentionally homeless from your accommodation in Holland. In order not to be continually found intentionally homeless from your accommodation in Holland you sought to acquire 'settled' accommodation. However, I am satisfied that the accommodation [in Paddington] was not reasonable for you to occupy.

It is evident that the accommodation [in Paddington] was in no way affordable. You rented this one-bedroom accommodation for £245 per week. In order to be able to afford this rent you applied to Westminster Housing Benefit for assistance with your rent. However, the Rent Assessment Officer decided that a reasonable rent for this accommodation would be £200. This left you with a shortfall of £45. You are a single parent in receipt of Income Support and as a result you were unable to meet this shortfall. As a result you had not acquired accommodation that was affordable and reasonable for you to occupy. Given this I am satisfied that even though you occupied this accommodation for one year you in fact remained homeless, as it was only a matter of time when your landlord would have evicted you due to rent arrears, as you could not afford the rent. I have also considered the fact that this accommodation was also unreasonable for you to occupy as you were statutorily overcrowded. The number of people who should live in a home depends on the number of rooms. Rooms that are counted include living rooms, bedrooms and large kitchens. As a general rule:

•1 room = 2 people

•2 rooms = 3 people

•3 rooms = 5 people

...

For the space and floor area calculations children under one year old are ignored and children under ten years old and over one count as a half. Considering your household it is evident that it is made up of 3.5 people. Given that you had two sleeping arreas at your disposal (living room and bedroom) I am satisfied that the accommodation was statutorily overcrowded by half a person. Given the above it is clear that your accommodation was not reasonable for you to occupy. You were not for example in the position where you occupied accommodation that was reasonable but then a new or supervening event occurred which led to your current homelessness.

Given that I am not satisfied that the causal link back to your original homelessness was broken I am satisfied that I am entitled to consider the reasons for the loss of your last settled accommodation [in] Holland."

Thereupon Mr Perdios repeated the reasons set out in his earlier letter for concluding that, in leaving the flat in Holland, the appellant had become homeless intentionally.

10. In Osmani , above, Auld LJ pointed out at [38(9)] that decision letters written by local authorities pursuant to duties under the Act to notify reasons, including reasons for decisions on review notified pursuant to section 203(4), should not be treated as if they were statutes or judgments; should not be subjected to pedantic exegesis; and should be read as a whole.

11. In my view an important feature of Mr Perdios' treatment of the central issue is that he encompassed it, both at the beginning and at the end, with a correct reference to the overarching legal principle. For he defined it as whether the causal link between the appellant's current homelessness and her earlier homelessness in Holland had been broken by occupation of the flat in Paddington. He proceeded to state that he was not satisfied that it had thus been broken; he then referred to three features; and, at the end, he reiterated that he was not so satisfied. The three features were that:

(a) the appellant acquired the flat with a view to subsequent reapplication to Westminster for accommodation;

(b) the appellant could not afford the rent; and

(c) the flat was overcrowded.

12. Mr Perdios commented that, by virtue of each of the three features, it was not reasonable for the appellant to occupy the flat. Was he there wrongly applying to the Paddington flat the reference in section 191(1) to whether accommodation would have been reasonable for an applicant to continue to occupy? It is common ground that he was not doing so. The judge held -- and there is no dispute -- that Mr Perdios there had in mind section 175(3) of the Act, which provides:

"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."

The thinking of Mr Perdios was that, if it was not reasonable for the appellant to continue to occupy the Paddington flat, she should not be treated as having had accommodation at all and that thus there could be nothing to break the chain of causation. That such was his thinking is suggested by his statement that, notwithstanding that she had occupied the flat for a year, the appellant remained homeless.

13. Before the judge the criticism of this part of Mr Perdios' approach came from concession by Mr Pay on behalf of Westminster rather than from the appellant. It is clear from her grounds of appeal to the judge that the appellant's case before him was not that Mr Perdios had wrongly asked himself the question in relation to reasonableness but that his answer to it had been wrong. In the event the judge held that Mr Perdios should not have concerned himself with whether the flat had been reasonable for the appellant to continue to occupy but that, on a reading of his decision as a whole, Mr Perdios was posing that question to himself only as part of the necessary enquiry into whether there had been settled accommodation and, overarchingly, a break in the chain of causation. In this respect I agree with the judge. In Awua above Lord Hoffmann stressed at 69F-H that in this context it was unhelpful to resort to considerations of deemed homelessness and was preferable to conduct the analysis solely in terms of causation. The fact that Mr Perdios subjected his three features to an unnecessary test does not diminish their status as the reasons for his central conclusion that the chain of causation had not been broken.

14. In his oral argument today, Mr Russell, as he did before the judge, has sought to make much of Mr Perdios' references to the reasonableness or otherwise of the appellant's occupation of the flat. He submits first that, in answering that question, Mr Perdios failed to take into consideration all circumstances relevant thereto, in particular the appellant's statement to Ms Dennis that she had taken the flat because it was the only accommodation which she could find; and second that if Mr Perdios' answer to that question was defective, it was not open to a court to retrieve the validity of the decision by inserting into it a conclusion that, although the appellant had indeed had accommodation it had not been settled. In argument I put to Mr Russell, I hope not unfairly, that he was seizing on a red herring. The common sense construction of Mr Perdios' decision is that his references to reasonableness were a detour off that main road of causation which, in express terms, he had charted for himself at the outset of his analysis.

15. Although Mr Russell's further points in support of the appeal relate to the second and, in particular, the third feature, I pause briefly to consider the first. It is based on a note made by the case-worker, Ms Dennis, of an interview on 2 July 2004 at which the appellant had said that when in 2003 her application for accommodation had been refused, she had been advised to rent private accommodation for one or two years and then to reapply. It seems to me to be a potent factor in relation to her settlement or otherwise in the flat, rightly weighed by Mr Perdios that, while in occupation of it, the appellant appears only to have been marking time until, on the expiry of at least a year, she might -- as she immediately did -- reapply to Westminster.

16. In relation to the second feature, the alleged inability of the appellant to afford the rent of the flat, Mr Russell complains that Mr Perdios -- and the judge -- failed to have regard to the fact that the level of the appellant's housing benefit was not fixed for eight months (and even thereafter was subject to appeal), with the result that it was for long unclear to the appellant that she would be unable to afford the rent. The more relevant question is perhaps whether she had any ground for confidence that she would be able to afford the rent. In any event there is no material, whether it be in the appellant's witness statement signed in support of her appeal to the judge or in the attendance note of Ms Dennis, which provides an evidential basis for Mr Russell's assertion about the appellant's belief as to whether or not she could afford the rent or which sets out the history of her claim for housing benefit; and in that the point is not even included in the grounds of the appeal to this court, I readily pass over it.

17. In relation to the third feature, the overcrowding of the flat, Mr Russell made significant, albeit in the end insufficient, headway before the judge. Before us he seeks to build on that headway; but, apart from anything else, we need to consider whether it is a solid foundation for any building at all. He persuaded the judge that, as part of his decision, Mr Perdios had wrongly asked himself whether, by reference to statutory criteria, the flat was overcrowded; and he seeks to persuade us that Mr Perdios' alleged error was so substantial that the judge was wrong to hold that, even after its notional excision, the decision remained lawful. Indeed this is the allegedly important point of principle by reference to which Mr Russell has persuaded the single lord justice to grant permission to bring a second appeal.

18. In this regard the judge said:

"23. I agree with Mr Russell in his submission that Mr Perdios should not have been concerned with whether the accommodation was reasonable to occupy by reason of overcrowding. It may, of course, be part of the reviewing officer's decision as to whether a person has acquired settled accommodation to consider the question of overcrowding. If a flat is severely overcrowded it may be a strong indicator that the person occupying the flat does not intend to remain there on a permanent basis. But the fact of overcrowding should not be elevated to a statutory test. The fact of overcrowding cannot itself be determinative on the issue of whether the tenant intends to remain there permanently; nor is it necessarily determinative on the issue of whether it is reasonable for him to occupy the flat Mr Perdios may have given the view that because of the severe overcrowding in the flat he was of the opinion that the accommodation must only have been temporary, but Mr Perdios did not purport to put his judgment in that way.

24. I take the view, however, that it makes no difference to the outcome of this appeal. Reading the letter, as I do, I am perfectly satisfied that Mr Perdios would have reached exactly the same conclusion had he ignored the question of statutory overcrowding ...

26. In the end, whilst I agree with Mr Russell that Mr Perdios did appear to elevate the question of statutory overcrowding into a statutory test as to whether it was reasonable to occupy the premises, it made no difference to his decision. Mr Perdios quite properly took the view that the accommodation occupied by the appellant was unaffordable and it was only a matter of time before the landlord evicted the tenant. His view that the flat was never settled accommodation was a view which was perfectly rational and it is a view which would have been taken regardless of the question of statutory overcrowding."

19. With respect to the judge, I do not share his analysis of the way in which Mr Perdios approached the issue of overcrowding. As the judge rightly said, overcrowding may well indicate -- I would say that it is likely to indicate -- that the accommodation is not settled. In this court Mr Russell concedes that the flat was overcrowded. For obvious reasons, however, there was no analogous concession by the appellant for the use of Mr Perdios. So plain are the grounds for such a conclusion that in my view it will not have been unlawful for him simply to have stated that the flat was overcrowded. But he chose to demonstrate those grounds by reference to statutory criteria. I see no reason to believe that he thereby intended to bring those criteria into the mainstream of his decision, which was governed, from first to last, by the question of causation.

20. Mr Russell's forensic ingenuity was such that in the end, as will have been noted, he seems to have persuaded the judge to hold that the fact of overcrowding, whether as statutorily defined or otherwise, could not lawfully figure at all in assessment of a break in the chain of causation. The judge then, however, proceeded to uphold the decision of Mr Perdios by reference solely to the second feature. For my part, I consider that Mr Perdios was entitled to place weight on each of the three features which he identified; that, taken in combination, they afford adequate reasons for his decision that the chain of causation was not broken; that under section 190 it was for Mr Perdios on behalf of Westminster, rather than for the court, to be (or not to be) satisfied that the appellant remained homeless intentionally; that the role of the court is only to monitor the lawfulness of the decision rather than to weigh for itself the potency of the relevant features; and that the decision was clearly lawful.

21. I would dismiss the appeal.

22. LORD JUSTICE RIX: I agree. In short, Mr Perdios posed to himself the correct question of causation and concluded that the chain of causation had not been broken by a period in unsuitable accommodation; unsuitable or unreasonable, as he described it, in that it was accommodation that the applicant had no good reason to think that she would be able to afford and it was also accommodation which was too small for her and her family, to the extent of being statutorily overcrowded.

23. It was also accommodation, moreover, which the applicant had only taken with a view to coming back in a year or so for a fresh application as a homeless person, as Mr Perdios found, "with a view to reapplying".

24. The relevant part of his decision letter begins and ends with the question of causation and the applicant's failure to break the chain between her intentional homelessness, arising out of her decision to leave her original home in Holland, and her present situation.

25. In the meantime, he had expressly reminded himself that she had occupied the accommodation at St Mary's Place for over a year. His conclusion on the facts was one that he was entitled to arrive at. Such a question of causation on all the circumstances of the case, which he expressly said that he had in mind, are not likely to be subject to review.

26. Mr Russell submits that he was not dealing with the essential question of causation at all or whether the chain of intentional homelessness had been broken; but with an entirely separate question of whether she had remained homeless during her period of accommodation in St Mary's Place.

27. On a fair reading of Mr Perdios' letter as a whole, I do not agree with that submission. In effect, Mr Perdios was deciding that her accommodation, because it was unaffordable and overcrowded, was thus insecure and temporary and only taken with a view to a fresh application after a year, it therefore did not break the chain of causation.

28. In my judgment, no error of law is displayed.

29. LORD JUSTICE TUCKEY: I agree that this appeal should be dismissed for the reasons given in both judgments.

Order: Appeal dismissed. Respondent's costs order granted.