F v Birmingham City Council

Part VII of the Housing Act 1996 is concerned with homelessness. Sections 183 to 204A provide for homeless people to apply to a local housing authority for assistance; delineate the duties of local housing authorities in those circumstances; and provide for reviews of and appeals against decisions of local housing authorities. A full account of the structure of these sections may be found in the judgment of Buxton LJ in Crawley Borough Council v B (2000) 32 HLR 636. There has been a number of amendments to the statute since the decision in Crawley by the Homelessness Act 2002. None of these amendments affect this appeal.

Section 202 of the 1996 Act gives an applicant for assistance the right to request a review by the local housing authority of a variety of its decisions. Section 204(1) provides that an applicant who is dissatisfied with a decision on a review may appeal to the county court on any point of law arising from the decision. As Buxton LJ explained in Crawley, the statutory structure places the primary decisions on the local housing authority, and any challenge to those decisions on an appeal has to be a public law challenge as in judicial review. This accords with paragraph 7 of the opinion of Lord Bingham of Cornhill in Begum v TowerHamlets London Borough Council [2003] 2 AC 430; [2003] UKHL 5, where Lord Bingham also emphasised the immense importance to homeless applicants of decisions by local housing authorities.

The defining section of Part VII of the 1996 Act is section 193. It applies, by section 193(1):

“… where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally”.

There are thus four considerations: homelessness, eligibility for assistance, priority need and intentional homelessness. For each of these, it is the local housing authority that has to be satisfied or not satisfied. If section 193 does apply, the local housing authority has by section 193(2) a duty to secure that accommodation is available for occupation by the applicant, unless they refer the application to another local housing authority. The duty to secure accommodation under section 193(2) is sometimes referred to as the “full duty”, although it is more properly referred to in Part VII as the “main housing duty”. There are other lesser duties where a homeless applicant does not fulfil all the criteria in section 193(1).

The appellant was, in September 2002, aged 19 and the mother having care of her small child. She has since had a second child. In September 2002, and on 7^th April 2003 when she applied to Birmingham City Council, the respondents, for assistance under Part VII of the 1996 Act, she was eligible for assistance. She was in priority need under section 189(1)(b) because her child lived with her or might reasonably have been expected to do so. She was homeless in April 2003, but the respondent local housing authority has consistently decided that she was intentionally homeless, so that they did not therefore owe her the main housing duty under section 193(2).

The original decision to this effect was as long ago as 21^st May 2003. There have since been various decisions on review and two successful appeals to the county court. The second of these resulted in a letter from the respondents dated 22^nd June 2005 indicating their likely decision on further review and giving her an opportunity to respond. She did so by her solicitors’ letter dated 28^th June 2005. On 8^th July 2005, she had an interview with the respondents. By a review letter dated 4^th August 2005, the respondents confirmed their original decision that the appellant was intentionally homeless. She again appealed to the county court. On 6^th December 2005, HH Judge Brunning, sitting in the Birmingham County Court, dismissed her appeal. She now appeals to this court. Neuberger LJ gave her hesitant permission to bring this second appeal, Jonathan Parker LJ having earlier refused permission on the papers.

Mr Cottle, for the appellant, told us that she and her children are in temporary accommodation waiting the outcome of this appeal. The time since the original application for assistance is a little more than 3½ years. We have not looked in detail at how the appellant and her children have been accommodated during this regrettably long period. If the appeal succeeds, the Birmingham City Council housing department may have to secure accommodation for them under section 193(2) of the 1996 Act. If the appeal fails, we understand that the Birmingham City Council Social Services Department will have to house the children, and, I suppose, their mother, the claimant. The position, thus expressed, is plainly not satisfactory, whatever the merits of an appeal which can only raise a point of law. There are no doubt reasons why, if it be so, the housing department and the social services department have been unable to put their heads together to break the apparent impasse. But I doubt if reasons of this kind mean much to vulnerable people who need assistance.

Section 191(1) of the 1996 Act provides that a person becomes intentionally homeless

“… 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 appeal to this court raises two points of relatively narrow compass arising from section 191(2), which provides:

“For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.”

By section 175(3), a person is not to be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. It is not generally reasonable for a person to continue to occupy premises which are larger than their basic needs, if they cannot afford the rent of those premises. That rather obvious proposition can be derived from section 177(3) of the 1996 Act and The Homelessness (Suitability of Accommodation) Order 1996 (S.I. 1996/No. 3204).

From 10^th December 2001, the appellant, then aged 18 and with one small child, had a council tenancy of a 2 bedroom flat in Birmingham. She did not move into this property until March 2002. She then only lived there for about 2 months, when she moved to live with her partner’s mother. The 2 bedroom flat was suitable accommodation – see section 206 of the 1996 Act. I understand that her housing benefit covered the rent of this flat. On 10^th September 2002, she voluntarily gave up the tenancy of the flat, ignoring advice from her social worker that, if she did so, she risked being considered as intentionally homeless. She then, in September 2002, found a larger and more expensive privately rented 3 bedroom semi-detached property in the same road as that of her partner’s mother. She somehow found the money for a deposit on this property and for two weeks’ rent. She made an incomplete application for housing benefit in October 2002, and did not respond to later requests for further and complete information. In particular she was asked whether her partner was also living in the property. If he had been, it might have affected her entitlement to housing benefit. She did not respond. She did not therefore receive any housing benefit during her occupation of this property. She was unable to pay the continuing rent of the property and, in the Spring of 2003, a possession order was enforced against her and she became homeless. Hence her application for assistance.

The previous paragraph is a bare bones account of facts which are incontestable in this court, because they derive from the review decision of 4^th August 2005, whose factual integrity was upheld by Judge Brunning; and there is no appeal against that part of his decision. But the appellant had attempted to make to the respondents and before the judge a substantially different factual case. Sadly, the review decision found that she had told significant lies and, as I say, the factual findings in the review decision were upheld by the judge as being properly open to the respondents. One main basis for the factual decisions in the review letter were written reports by social workers which were accepted as accurate.

Elements of the factual case which the appellant attempted to make, but which were rejected as untrue, included the following. She claimed that the council flat was unsuitable for her needs because of its state and outstanding repairs. The decision was that the flat was suitable for her needs; that any repairs which had not been seen to were because she was absent from the property and those attending to carry out the repairs could not gain access; and that the general state of the flat resulted from her own neglect of it. She claimed that her social worker had pressurised her into giving up the tenancy of the flat and advised her to take up the tenancy of the larger property. This was rejected as untrue. Social Services did not find that property for her. On the contrary, the social worker had made her aware that, if she gave up the tenancy of the council flat, she would be making herself intentionally homeless. Social Services were most concerned with how she would afford to pay the rent of the larger property. She claimed that her social worker had advised her that housing benefit would cover the full rent of the larger property. This was rejected as untrue. It seemed that the social worker was concerned with how she was going to obtain the deposit for the privately rented accommodation. She claimed that her rent arrears at the larger property accrued because those responsible did not process her housing benefit claim. This was rejected. Her claim for housing benefit had lapsed because the original application was incomplete and because she failed to respond to legitimate and necessary questions. “Furthermore you failed to consider whether you could afford to pay the rent for the private tenancy… and still accepted the tenancy voluntarily.” It seems likely, from much later inquiries, that housing benefit would never have covered the full rent of the larger property of £132 per week, but this was never determined at the time.

In my view, the core reason why the appellant became homeless was because she voluntarily gave up the council tenancy of the flat, which was suitable accommodation and which she could afford, in favour of larger premises which she could not afford. She ignored advice that in doing so she risked being intentionally homeless. It was not reasonable for her to occupy or continue to occupy the larger house, because it was larger than she needed and she could not afford the rent. The question of intentional homelessness therefore has to look at events of September 2002. Mr Cottle was not in a position to submit otherwise and did not, I think, seriously try to do so.

Mr Cottle did insist on taking us through some of the evidential material available to the respondents and before the judge in an attempt, I suppose, to persuade us to supplement or modify the factual findings in the review decision. This did not sit easily with his written criticism of the judge – largely unsubstantiated, in my view – that the judge had illegitimately supplemented the same factual findings. Mr Cottle rightly submitted that the appeal to the judge had to be a public law challenge on points of law as in judicial review. It was open to him to say that the factual findings were incomplete, but not to invite this court to supply any deficiencies.

There are two surviving grounds of appeal: first, that the review decision failed properly to consider the proper application of section 191(2) of the 1996 Act; and, second, that the letter of 22^nd June 2005 failed fairly to alert the appellant to a likely finding relating to any belief by the appellant that housing benefit would or would not cover the rent of the larger property. Mr Cottle points to paragraph 4 of the claimant’s solicitors’ subsequent letter of 28^th June 2005, and submits that this raised the point under section 191(2) expressly. He says that the review decision failed to deal with this point. The paragraph in the letter of 28^th June stated:

“With regard to the rent at [the larger property], clearly our Client thought that she could remain there and that housing benefit would pay the rent in full. On our Client’s part, this was a reasonable assumption to make given that she was at the time an 18 year old with a baby seeking assistance from the State. Our Client should not be accused of the point regarding affordability at [the larger property] because she was unaware of a relevant fact which was made in good faith.”

I accept that, by picking up the language of section 191(2) in the final sentence, there was a clear reference to that subsection.

It was, as I have said, the appellant’s case that her social worker had positively told her that housing benefit would cover in full the rent of the larger property. She had stated at the interview on 8^th July 2005 that she was not bothered about the rent as she only wanted stability for her daughter. The finding was that she was not concerned about the implications of accepting the private tenancy. She was not concerned whether it was affordable or not. She failed to consider whether she could afford to pay the rent for this property.

We were referred to a number of authorities which consider section 191(2), including R v Westminster City Council ex parte Obeid (1996) 29 HLR 389; R v Westminster City Council ex parte N’Dormadingar (Lightman J, 14^th October 1997); O’Connor v Kensington & Chelsea RLBC (2004) HLR 37; [2004] EWCA Civ 394; and Aw-Aden v Birmingham City Council [2005] EWCA Civ 1834. From these, I derive the following synthesis.

In conducting a review under section 202 of the 1996 Act, a local housing authority is obliged to consider the effect of section 191(2), even if they have not been specifically invited to do so (O’Connor paragraphs 35, 40, 54), if it is sensibly capable of arising on the facts (Aw-Aden paragraphs 10-12). An applicant’s appreciation of the prospects of future housing can be treated as “awareness of a relevant fact” for the purposes of the sub-section, provided that it is sufficiently specific and provided that it is based on some genuine investigation and not mere aspiration (Obeid at page 398; Aw-Aden paragraphs 10, 11). If it is established that the applicant was unaware of a relevant fact, the question is not whether the ignorance was reasonable but whether it was in good faith. The statutory dividing line comes not at the point where the applicant’s ignorance of a relevant fact was due to his own unreasonable conduct but at the point where, for example, by shutting his eyes to the obvious he can be said not to have acted in good faith. Wilful ignorance, at least, must fail the good faith test (O’Connor paragraphs 34, 30). If the prospect of future housing rests on little more than a wing and a prayer, it cannot be said that an original decision maker or a review panel falls into legal error by failing to invoke section 191(2) in favour of the applicant (Aw-Aden paragraph 11). In such a case, section 191(2) is a non-starter and no specific reference to it is needed (Aw-Aden paragraph 12).

Although the review panel were invited by the language of paragraph 4 of the appellant’s solicitors’ letter of 28^th June 2005 to address section 191(2), they did not specifically refer to this subsection in the letter of 4^th August 2005. Nevertheless, Mr Cottle struggled in the face of the findings in the review to formulate the relevant fact of which the appellant was unaware. Her case was that she was told by the social worker that housing benefit would cover the rent. That was rejected. The solicitors’ letter has it that she thought that housing benefit would pay the rent in full. That was rejected. She was not bothered about the rent despite warnings whose implicit effect was that it would or might not. She failed to consider whether she could afford the rent. The highest it could reasonably be put is that she did not know whether housing benefit would cover the rent in full. Mr Cottle submits that this would be understandable in a young naïve woman in the appellant’s circumstances. I fear, however, that even this overstates the available case.

Ms Rowlands’ first and complete answer to the first ground of appeal, which I would accept, is that the review decision did not accept the facts upon which it was suggested that section 191(2) arose for consideration. It was not accepted that the claimant had been told that housing benefit would cover the rent of the larger property. It was not accepted that the appellant thought that housing benefit would pay the rent in full. Further, the facts found, in my view, show at best that she took the tenancy of the larger property not knowing whether housing benefit would cover the rent and not being bothered about the rent. She thus at best proceeded on a wing and a prayer, so that section 191(2) did not arise for consideration. In my view, her conduct may be characterised as wilful ignorance or shutting her eyes to the obvious, thus failing the good faith test. It is not as if she was not warned that she risked being found intentionally homeless if she gave up the council flat tenancy. In human terms, this is a profoundly sad conclusion, which does not address the plight of her and her children. But within the confines of the 1996 Act and the authorities which I have referred, I consider it to be the correct analysis.

The second ground of appeal is, in my judgment insubstantial. The letter of 22^nd June 2005 did sufficiently raise for the appellant’s consideration the relevant factual finding which the respondents were likely to make, if only in the sentence:

“We consider that your comments and actions show that your attitude was that you did not give any proper consideration to the question of how you were going to pay the rent at [the larger property].”;

and in the sentences:

“The records also show that [Social Services] did not put you forward for the private accommodation and [were] most concerned about how you would pay the rent.

Despite all the advice given to you by Social Services you deliberately gave up your tenancy of [the council flat] and entered into a tenancy agreement, that you knew from the outset you were unable to afford …”.

For these reasons, I consider that the judge reached the correct conclusion, and I would dismiss this appeal.