Steward v Royal Borough of Kingston-Upon-Thames

This is an appeal from the decision of HHJ Morgan in the Kingston-on-Thames County Court entered on 29 September 2006. He was hearing an appeal under section 202 of the Housing Act from a decision of the respondent local authority the Royal Borough of Kingston-upon-Thames taken on 13 July 2006, to the effect that the appellant, Ms Steward, was intentionally homeless under the terms of section 191 of the Housing Act 1996 because in the year 2000 she had become homeless by giving up accommodation which it would have been reasonable for her to continue to occupy, and she has remained so homeless ever since. Permission was given for this, a second, appeal because it was thought to raise important and undecided issues about the correct test for determining whether a previous act of becoming homeless intentionally has ceased to have causal effect in relation to the present state of homelessness, so as to render the present state also one of intentional homelessness. The issue was said to be whether any event or act other than the obtaining of settled accommodation would break the chain of causation with the previous act of intentionally becoming homeless. In the event Mr Willers agreed before us in oral argument that that issue, as a matter of law, in theory did not arise at all because both the local authority and the judge had proceeded on a view of the point that was favourable to his client. To quote the relevant passage in the decision letter of the local authority -- the relevant letter being the letter of 13 July 2006 -- the reviewing officer said this:

“I accept that you could break the chain of intentionality by other means other than securing settled accommodation. However I would consider such an event would have to be substantial enough to mean that a finding of intentionality could no longer be maintained.”

On the basis of that, the supposed issue of legal theory did not arise on the facts of the decision in this case. I have to say that it would have saved a lot of expensive time, both here and below, if that fact had been acknowledged when it should have been.

I turn to the facts of the case, which are summarised in the learned judge’s judgment. I read paragraph 3 to start with:

“On 28 June 1999 the appellant became the tenant of residential accommodation at 42 New Road, Littlehampton, Sussex. In April 2000 she gave up her tenancy. In paragraph two of her first statement she states that by this time she had come to the conclusion that a travelling lifestyle was better for her psychologically and that she had a strong aversion to conventional housing.”

It should be noted that it has never been suggested, and Mr Willers very properly accepts this, that that explanation for her leaving the accommodation at 42 New Road did anything other than cause her state in April 2000 to be one of intentional homelessness. It should also be noted also that, although she calls herself a traveller, she is not a gypsy, nor ethnically of any other nomadic origin. She explained that in her first witness statement, the judge in paragraph 2 saying this:

“… ‘I am intentionally homeless for, many years ago, leaving conventional housing. I am a Traveller and I had already been travelling for sometime, even when I was spending part of my time living in a house. I believe I would be described as a New Traveller. In other words I am not an ethnic Gypsy or Traveller, but I do subscribe to the Gypsy/Traveller way of life’.”

Since she gave up her accommodation at 42 New Road, she has in the main lived in a caravan which she has placed on various pieces of land. Subject to a point which I shall have to deal with in a minute, none of those placings of the caravan have been with the permission of the owners of the sites. The judge set out the history in paragraphs 6 to 7, which again it will be convenient to read:

“For about a year, from November 2001, to November 2002, she, and others, occupied land on the site of a disused public house called The Cambridge Arms in Kingston. She was evicted by the then owners, Ruskin Homes Limited. After two days, at another disused public house, in the area, called the Robin Hood, she occupied land at the Water Gypsy public-house, also disused, at Croftway, Ham, until April 2003. Then she stayed at a former petrol station site in Ham until 2004 when she was evicted.

She then occupied land owned by the Royal Borough of Kingston at 58 Lower Marsh Lane until February 2005 when she was evicted. After a short period on a nearby site at 56 Lower Marsh Lane she moved to the site of a disused hospital for a short time. Then after a night in what she described as ‘land owned by the Water Board’ she has been, since about June 2005, at the site of another disused public house in Surbiton, where she lived in a converted bus. Her sons, Matthew and Luke, occupy a camper van and a caravan respectively on the site.”

We were told from the bar that in fact she has now been evicted from the Rising Sun Public House, that is to say the disused public house referred to at the end of the judge’s paragraph 7. Ms Steward unfortunately has serious health problems which would, or almost certainly would, entitle her to priority accommodation if she were indeed not intentionally homeless. What, however, she hopes to obtain from these proceedings remains somewhat obscure. What she wants is somewhere to place her caravan. But if the local authority indeed did have a duty to accommodate her, it would by no means necessarily have to provide her with a caravan site, as opposed to the orthodox accommodation, bricks and mortar, which she is opposed to living in. Mr Willers however said that the application was not academic because the effect of her succeeding in her application would be that the local authority would at least have to consider whether it had a caravan site available for her.

What was thought to have been the principal argument in this appeal being now out of the way, the argument relies on the appellant’s periods of residence as a trespasser on various sites, including one site owned by the respondent local authority. Those were said to have been periods of settled residence during which the appellant was not homeless, so each eviction was a fresh instance of homelessness: nothing therefore to do with her original decision to leave 42 New Road. I have to say that the argument at this point passed from reality into the realms of abstract theory. It has as its necessary and, indeed, express premise that if a person occupies land as a trespasser for long enough to be counted as “settled” there, then any action to evict him would by rendering him homeless break the connection with his original decision to leave settled accommodation and live in a caravan.

Reliance was placed on the judgment at first instance of Jackson J in the case of R (O’Donohue) v Brighton and Hove District Council [2003] EWHC 129 (Admin). This was a strikingly unusual case, in that Ms O’Donohue, who was a person who had placed her caravan on a site owned by the respondent local authority, maintained that she was homeless under section 175(2)(b) of the 1996 Act because she had no place where she was entitled or permitted to place her caravan. Not so, said the local authority. They had taken no steps to move her on from the place where she had been given a temporary site to place the caravan and therefore she was as a matter of fact for the time being permitting the claimant to remain there. Hardly surprisingly, the learned judge found that she was therefore not homeless.

It is not that part of the case upon which Mr Willers relies. He relies on a much more general dictum of Jackson J and his paragraph 10 where he says:

“It seems to me that if a traveller places his or her caravan on a site and resides in it, even if the traveller is, strictly speaking, a trespasser, where the land owner allows that situation to continue and takes no action, that is a ‘permitting’ which falls within section 175(2)(b), and the traveller could not be categorised as a homeless person.”

The other side of that coin, indeed the same side of that coin viewed in a different way so far as this case is concerned, is that Mr Willers said that, applying that view, the local authority here ought to have considered that on at least some of her previous occupations of sites Ms Steward, although not allowed to be there, had received deemed permission by reason of the failure of the owner, whoever he might be, to take proceedings against her with sufficient alacrity.

The dictum of Jackson J is indeed stated in very general terms. It must be within that general framework a question of judgement when the moment of deemed permission has indeed arrived. Pressed to tell us when that might be, Mr Willers suggested as a rule of thumb that settled accommodation, therefore not homelessness, might arise after the caravan owner had been on the site for a month. I am bound to observe that I doubt the case would have been pressed in quite that way if the local authority’s case in this case was as it had been in O’Donohue, that she was indeed on a settled site and thus not homeless at all.

If the argument were right, there is no doubt that there were periods after Ms Steward made her application when by reason of deemed permission she passed out of the state of homelessness. But we need not pursue that matter further because the argument is not correct on the facts and findings of this case. There is a simple finding of fact which the local authority was well entitled to make, it having accepted the point about permission that Mr Willers urges: that all the occupations upon which Ms Steward relied had been unauthorised and precarious. This is what the reviewing officer said on that point in the decision to which I have already referred. He said this:

“I have considered that you have occupied a number of vacant or derelict sites within and near to this district. From investigations I am satisfied that you have not taken occupation with any permission from the owner; in effect you have had a string of unlawful encampments.

“I consider that by the nature of your unauthorised occupation of land that such encampments cannot be considered settled as you had no right or interest in the land.

“Furthermore I find that it is not possible to consider such encampments a change in circumstances that would break the chain of causation as they are unlawful in nature and cannot be held to be anything else. I find that had you taken occupation with permission, then this may be considered an event that could break the chain of causation.”

The judge picked that up at paragraph 48 of his judgment. Having quoted an observation of Akner LJ in the case of Din, that to break the chain of causation there must be achieved what can loosely described as settled residence, in paragraph 48 the judge said:

“Counsel emphasised the words ‘loosely described’. I do not think that that can avail the appellant. I accept the submissions of counsel for the respondent, that unlawful occupation of disused sites as trespasser, from which he could have been evicted at any time if the landowner chose, is far removed from settled accommodation.”

It is relevant to go back to paragraph 41 of that point in the judgment where the judge expands further on what had been the submission for the local authority in this sentence:

“[Counsel] further submitted that whether the accommodation could be properly classed as having been settled was a question of fact and degree for the authority concerned.”

I would respectfully agree with the judge’s endorsement of that part of counsel’s argument. That, therefore, would seem as a straightforward decision on a matter of fact to be the end of it. But it is further argued that the local authority and the judge both erred in law because they did not give weight in their assessment of the nature of Ms Steward’s occupations to the protected position, as it was said to be, of Ms Steward in European Union law as a traveller. Reliance was placed on a case in the European Court of Human Rights of Chapman v UK [2201] 33 EHRR 18 and on two domestic cases, R(Price) v Camarthenshire County Council [2003] EWHC 42 and Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925.

The problem about this argument is that, accepting the general jurisprudence referred to in those authorities, it is impossible to see how that jurisprudence can be relevant to the factual issue of whether Ms Steward had obtained settled accommodation. That was the issue that the local authority had to decide and which the judge merely had to review in order to determine whether there had been any error of law. Nor is it possible to see how the shortage of authorised sites for travellers, which the judge in paragraphs 14 and 15 of his judgment accepted to be the case at least for the purposes of argument, can be relevant to the issue of whether a particular occupation is by permission of the landlord or should be deemed to be such. None of the cases that were relied on go anywhere near to such a proposition, nor could they.

The jurisprudence of the European Court of Human Rights on this point is necessarily directed at the principle to be adopted and applied by the member states, rather than to decisions of fact and judgement in particular cases. On that general point I cannot do better than respectfully adopt what the judge said in paragraphs 29 and 30 of his judgment as follows:

“In Chapman although the European Court of Human Rights decided that the state owes a positive duty to gypsies and travellers to facilitate their way of life, and that this required public bodies to give some special consideration to their needs, and their different lifestyle, it also held that the state was under no positive obligation to provide an adequate number of suitably equipped sites for gypsies and travellers. (See paragraph 98 of the judgment at page 427) which goes on:

‘the court is not convinced that Article 8 can be interpreted to involve such a far reaching positive obligation for general social policy being imposed on the state. It is important to recall that Article 8 does not in terms give a right to be provided with a home.’

“Neither Price nor Codona goes beyond Chapman on this point. Further, both were concerned with the suitability of offers of accommodation of gypsy and traveller homeless applicants, to whom a duty had been found to be owed.”

As I have said, not only do those authorities not deal with the issue of assessment of the intentionality of homelessness, it is impossible to see how they could affect a practical decision on that point to the extent that it had to be taken differently according to whether or not the person concerned had a particular status of European Union protection.

In addition, there is a further and pressing point on the facts of this particular case; which, I emphasise, is over and above the objections that I have already pointed to. Chapman and the previous authority of Buckley v United Kingdom [1996] 23 EHRR 101 that it adopted on this point was founded on the particular needs and lifestyle of the specifically gypsy community. At paragraphs 93 to 94 of the judgment in Chapman, the European Court of Human Rights records that it was asked to extend special protection to minorities generally, but it refused to do so. Nonetheless, and within the ambit of that refusal, it saw gypsies -- specifically identified -- as a special case. The logic of that approach therefore certainly does not encompass someone such as Ms Steward, who is not a gypsy, and only on the most generous view of the category of “New Traveller” is even a member of an identifiable and discrete minority group. She, in truth, is simply someone who has chosen to adopt a lifestyle approximating to that of a gypsy. The jurisprudence of the European Court of Human Rights may eventually be extended to someone such as her but it has not been extended so far, and it is not for this court to take that step on the European Court’s behalf.

The argument also referred in very general terms to Article 14. Before an Article 14 case can be got off the ground, it must be shown that the claimant has been treated discriminatorily differently from someone who does not fall within her description. There was absolutely no attempt to meet the structural requirements of an Article 14 application and for my part I find it impossible to see how, on the facts of this case, one would set about that task.

The local authority considered this matter with commendable care and reached factual findings on it that cannot be impugned. The judge, despite being burdened with a great deal of authority which on analysis is nothing at all to do with this case, equally reached conclusions that cannot be faulted in law. The main point on which permission to appeal was sought and granted did not arise and I have to say I fear that the remainder of the case was hopeless. I would dismiss this appeal.

I agree and there is nothing that I wish to add.

I also agree. This appeal should be dismissed.