Gilby v City of Westminster

This is an appeal (pursuant to permission granted by Longmore LJ on the 12^th January 2007) by the appellant Mrs Michelle Gilby (“Mrs Gilby”) from the judgment (“the Judgment”) of HHJ Knight QC (“the Judge”) who dismissed an appeal by Mrs Gilby under section 204 of the Housing Act 1996 (“the 1996 Act”). By the appeal to the Judge Mrs Gilby had challenged the decision made on the 6^th June 2006 (“the Decision”) of the respondent Westminster City Council (“Westminster”) made under section 202 of the Housing act 1996 that Mrs Gilby was intentionally homeless within the meaning of section 191 of the 1996 Act.

Before the Judge a number of grounds of challenge were made to the Decision. Accordingly the Judgment contains a detailed examination of the facts. On this further appeal, only one ground of challenge continues to be advanced. In the circumstances, in this judgment the relevant facts may be stated very shortly.

Mr and Mrs Gilby lived as tenants from April 2000 until March 2001 in a two bedroom bungalow in Claygate Surrey (“the Bungalow”). This privately rented property was their settled home. In 2001 they left the Bungalow thereby becoming intentionally homeless. They applied to Westminster as homeless people to re-house them and this application was refused on the ground that they were intentionally homeless. For a period of some three years between about May 2001 and June 2005 Mr and Mrs Gilby lived at a one bedroomed flat at 31 Reynolds House, Erasmum Street, London SW1 (“the Flat”). This was pursuant to an informal arrangement made between Mrs Gilby and her step-sister (“the Sister”). The Sister had a periodic secure tenancy of the Flat granted to her by Westminster. Westminster was not informed of the arrangement between the Sister and Mrs Gilby. There may or may not have been some form of payment by Mrs Gilby to the Sister in respect of the Flat. In circumstances which it is unnecessary to examine, Westminster terminated the secure tenancy on the 8^th June 2005 and recovered possession from Mr and Mrs Gilby.

Following two earlier unsuccessful applications for homelessness assistance in 2005 rejected on the ground that they were not in priority need, on the 17^th January 2006 Mr and Mrs Gilby reapplied relying on Mrs Gilby’s pregnancy to confer priority need. This application was investigated by a Mr Paul Persaud (“Mr Persaud”) a homelessness casework officer. In a letter dated the 17^th March 2006 (“the Decision Letter”) written by him giving the decision of Westminster (“the Original Decision”) on the re-application, Mr Persaud wrote that Mr and Mrs Gilby had become intentionally homeless when they left the Bungalow and that they continued to be intentionally homeless: that occupation of the Flat did not break the chain of intentional homelessness as it did not constitute intervening settled accommodation:

“We are of the opinion that your subsequent accommodation at [the Flat] cannot be regarded as settled accommodation as this was your sister’s, Ms Sarah Smith’s, Council tenancy which you were illegally subletting. You were subsequently evicted from this accommodation when the local Housing Estate Office realised your sister had sublet her tenancy.”

By letter dated the 22^nd March 2006 Mrs Gilby requested of Westminster a review of the Original Decision pursuant to section 202(1)(b) of the Housing Act 1996. The letter went on to say that Mrs Gilby had made payments higher than the secure tenancy rent levels for three years to the Sister, demonstrating that there was a commercial agreement for the sole occupancy of the Flat as their sole residence, giving rise to an assured shorthold tenancy. The review was carried out by Ms Fatheya Latif (“Ms Latif”) Westminster’s Housing Review Officer. Ms Latif spoke to the Sister who said that Mrs Gilby had occupied the Flat as a bare licensee as a temporary arrangement only. In her decision letter dated the 6^th June 2006 (“the Review Letter”) Ms Latif decided to uphold the Original Decision because she was satisfied that Mrs Gilby became intentionally homeless when she left the Bungalow and since that date had not acquired any settled accommodation. The critical part of the letter reads as follows:

“Although your client submits that [the occupation of the Flat] should be considered a settled accommodation, Miss Smith told us that this was only a temporary arrangement and she was not charging your client any rent for the accommodation. I am inclined to agree that this arrangement was only meant to be temporary. Given that your client was a bare licensee and the landlord of the accommodation was not aware of your client residing at the address. I have also taken into consideration the fact your client also did not make any attempt to inform the landlord of her residence at 31 Reynolds House, Milbank Estate, SW1. I am therefore satisfied that this was provided to your client on temporary basis and therefore not capable of being a settled address.”

Mrs Gilby thereupon appealed to the County Court. The only ground taken in the County Court which now survives on this further appeal focuses on the fact that, whilst the Decision Letter stated that Mr and Mrs Gilby were illegal subtenants, the Review Letter stated that Mrs Gilby was a bare licensee under a licence intended only to be temporary. The issue raised was the significance of this difference. Mrs Gilby contended that it triggered Regulation 8.2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“Regulation 8.2) and her complaint was that its procedures were not followed. Regulation 8.2 reads as follows:

“If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –

“(a)

that the reviewer is so minded and the reasons why;

and

(b)

that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”

In the Judgment the Judge rejected Mrs Gilby’s complaint that there had been a deficiency or irregularity in the Decision which triggered Regulation 8.2. The relevant part of the Judgment reads as follows:

“20.

Mr Russell, who appears for the applicants, makes two main submissions. He points firstly to the distinction between the language of the s.184 letter and the decision letter. The s.184 letter, referring to the illegal subletting, which was a, if not the, factor warranting the conclusion that 31 Reynolds House could not be regarded as settled accommodation; and the language in the review letter that the occupation of Reynolds House was means to be temporary and that the Gilbys were bare licensees, the landlord of the accommodation not being aware of their occupation….

22.

What is said by Mr Russell is that because of this difference in language the review officer must have recognised that there were not only different expressions but that they were significantly different. That should have triggered the coming into play of regulation 8.2 of the 1999 Regulations, and that the review officer was wrong not to have adopted that course. He has taken me to the decision of Carnwath LJ in the case of Hall v. Wandsworth London Borough Council, in particular paras. 29 and 30. Mr Russell goes on to say that the review officer could not have considered the regulations because if she had appreciated the difference in language, she would have appreciated that she would necessarily have had to invoke Regulation 8.2….

30.

Similarly, as to whether the accommodation at Reynolds House was settled or not, I am with Mr Warner on this point. Notwithstanding the change in language, I do not think that that change was so significant that it should have triggered the application of Regulation 8.2. I am not so sure that questions of interest, generally speaking, would not be relevant factors, but I am satisfied that, on this case the different phraseology or labelling was not so significant that looked at objectively, it would have warranted the review officer to invoke Regulation 8.2. That being so, I think that the conclusion that Reynolds house was not settled accommodation is one which is not susceptible to challenge in this case.”

Section 175 of the Housing Act 1996 provides that a person is homeless if he has no accommodation available for his occupation which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court; or (b) has an express implied licence to occupy; or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. Section 191 of the Housing Act 1996 provides that a person becomes homeless intentionally if he deliberately ceases to occupy accommodation available for his occupation and which it would be reasonable for him to occupy.

Mrs Gilby was disqualified from invoking the statutory obligation of Westminster to re-house her if at the time of her application on the 17^th January 2006 she was intentionally homeless. It is common ground that she became intentionally homeless when in March 2001 Mr and Mrs Gilby voluntarily left the Bungalow. Mrs Gilby’s status as “intentionally homeless” for this purpose continued until she acquired “settled” accommodation. For this purpose the distinction is between settled in the sense of reasonably secure or permanent accommodation and insecure accommodation in the sense of precarious, temporary or transient accommodation. The epithet “secure” connotes accommodation in respect of which there are solid grounds for the reasonable expectation of continuance of occupation for the foreseeable future or for a significant period of time. There is no legal requirement as to the form of or the label that designates the legal character of the occupation. What matters is whether as a matter of fact the required security is available. For the purpose of determining whether accommodation is secure it is relevant whether the occupation is under a lease or a licence, but the fact that occupation is under a lease or licence is in no way decisive. Relevant circumstances also include (amongst others) the terms of the lease or licence, whether the grantor of the lease or licence could lawfully grant it, the relationship between the lessor and licensee and the lessee and the licensee (e.g. parent and child or husband and wife or partners or employer and employee), the nature of the accommodation and the period for which the accommodation may be expected to continue and for which it has continued.

The Sister’s rights and obligations as a periodic secure tenant were governed by the provisions of the Housing Act 1985. A periodic secure tenancy does not confer an interest in land. Like a statutory tenancy under the Rent Act 1977 a periodic secure tenancy merely gives rise to a personal right to occupy the premises in question. Section 93 of the Act provides as follows:

“93(1). It is a term of every secure tenancy that the tenant—

(a)

may allow any persons to reside as lodgers in the dwelling house, but

(b)

will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling house

(2)

If the tenant under a secure tenancy parts with possession of the dwelling house or sublets the whole of it … the tenancy shall cease to be a secure tenancy and cannot subsequently become a secure tenancy.”

It is common ground that by terminating their tenancy of the Bungalow Mrs Gilby became intentionally homeless. The question addressed in the Decision Letter was whether her status as intentionally homeless was brought to an end by the accommodation which she obtained at the Flat. The answer to this question depended on whether her accommodation at the Flat had the requisite character to answer the description of “settled”. This required an examination of the character of the Sister’s rights as tenant of the Flat and of Mrs Gilby’s own occupation of the Flat.

It was the contention of Mrs Gilby at all material times that her occupation of the Flat did have this character by reason of the fact that she was in possession of the Flat as a subtenant of the Sister. The contention that she was a subtenant was accepted by Mr Persaud and he made a finding to this effect in the Original Decision. He went on to hold that if there was a subletting by the Sister to Mrs Gilby, the subletting was an unlawful sub-tenancy because the consent of Westminster was not even sought, let alone granted, and the occupation of the Flat by Mrs Gilby was at all times too precarious to answer the description of settled accommodation. She was liable to be evicted by Westminster at any time. The Original Decision, if it stood alone, could not be questioned.

Mrs Gilby however has taken the point that, whilst the Original Decision was made on this basis, the Reviewed Decision was made on the basis (supported by the evidence of the Sister) that Mrs Gilby had only a licence, and a licence granting a right to occupy, which was less than a right to exclusive possession, did not constitute a breach of a term of the secure tenancy. It is said on her behalf that a decision on this basis is inconsistent with the basis of the Original Decision, that this discloses a deficiency or irregularity in the Original Decision which triggered Regulation 8(2) and that the failure to notify and invite representations under the regulation invalidates the Review Decision.

The proper approach to Regulation 8.2 was considered by the Court of Appeal in Hall v. Wandsworth LBC [2005] 2 All ER 192 at paragraphs 29 and 30 where Carnwath LJ said:

“29.

However, I would put it more broadly. The word ‘deficiency’ does not have any particular legal connotation. It simply means ‘something lacking’. There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion were one depending solely on legal judgment. On the other hand, the ‘something lacking’ must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of ‘evaluative judgment’ (see Runa Begum v TowerHamlets London BC [2003] 1 All ER 731 at [114], [2003] 2 AC 430 at [114] per Lord Walker of Gestingthorpe), on which the officer’s conclusion will only be challengeable on Wednesbury grounds.

30.

To summarise, the reviewing officer should treat reg 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.”

It is important to have in mind that the question to be addressed in the Original and the Reviewed Decision was not the legal character of Mrs Gilby’s occupation of the Flat but whether it constituted settled accommodation. The Original Decision and the Reviewed Decision are to the effect that the Flat did not constitute settled accommodation. For this purpose it did not and does not matter whether Mr Gilby’s occupation was as an unlawful subtenant (as contended by Mrs Gilby) or as a bare licensee (as contended by the Sister) if Mrs Gilby did not have the required solid grounds for any reasonable expectation of continuance for the foreseeable future or a significant period of time. Her occupation on either basis was precarious and there was no ground for any reasonable expectation of continued occupation for the foreseeable future or a significant period of time. These were decisions of fact which Mr Persaud and Ms Latif were fully entitled to reach on the material before them.

In these circumstances there was no reason for, or purpose in, inquiring into whether as a matter of legal labelling Mrs Gilby’s occupation was as a lessee or licensee. There was accordingly no deficiency or irregularity in the Original Decision or the manner in which it was made and Regulation 8(2) was not triggered. I would accordingly dismiss this appeal.

I agree.

I also agree.