Mohamed v The City of Westminster

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

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.

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 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.

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.

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.

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?

Section 191(1) of the Act provides:

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:

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.

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:

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:

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.

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.

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.

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.

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.

In this regard the judge said:

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.

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.

I would dismiss the appeal.

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.

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".

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.

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.

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.

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.

In my judgment, no error of law is displayed.

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