Denton v London Borough Southwark

Mr Leon Denton lived with his mother, Mrs Salmon, at 12C Brunswick Park, Camberwell, London SE5 7RH all his life until 2005. He was then twenty years old. His mother asked him to leave because he behaved badly in the home and she could no longer control him. Mr Denton then lived briefly with his sister but she likewise asked him to leave after ten months. He was then homeless. He went to his local housing authority, the London Borough of Southwark (which I shall call “Southwark”). Successive Housing Acts have imposed on local authorities the duty in certain circumstances to provide housing for people who are homeless, but in general local authorities are not obliged to provide accommodation for a person who has become homeless “intentionally” as that term is defined by s 191 of the Housing Act 1996 (as amended) (“HA 1996”) (see para. 3 below). Southwark took the view that Mr Denton fell within this definition because of his bad behaviour at his mother’s home and moreover because it would have been reasonable for Mr Denton to continue to occupy the accommodation which had previously been provided by his mother. She would have been willing to continue to provide a home for him if his bad behaviour had ceased. On appeal, the judge quashed Southwark’s decision, holding that it had not taken into account the relationship between mother and son and the possibility that it had already broken down by then. Southwark appeals, and the point of principle for this court is whether Southwark erred in law in its approach to the situation where a young person becomes homeless in this way.

In my judgment, for the reasons given below:

S 191 of the HA 1996 deals with the meaning of “intentional homelessness” and in material part it provides as follows:

“(1)

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.”

S 191(1) contains four requirements. First, the applicant for housing must have deliberately acted or omitted to act. S 191(2) goes on to provide that an act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate. Secondly, his actions or omissions must have caused him to cease to occupy accommodation. Thirdly, that accommodation must have been available for his occupation. Fourthly, it must have been reasonable for him to continue to occupy that accommodation. It does not have to be shown that it was reasonable for him to leave the accommodation (see per Woolf J in R v Wandsworth LB ex parte Nimako-Boateng (1983) 11 HLR 98).

S 177 of the HA 1996 is relevant to the fourth requirement and in part to this case. Ss(1) deals with the situation where a person's continued occupation is likely to lead to violence. We are not concerned with that subsection and accordingly I will not summarise it. Ss (2) provides that, in determining whether it would be or would have been reasonable for a person to continue to occupy accommodation, the local authority may have regard to the general circumstances prevailing in relation to housing in its district. Ss (3) enables the Secretary of State to make orders specifying other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation or other matters to be taken into account in determining whether it would be or would have been reasonable for a person to continue occupation. We have not been taken to any order made under this subsection.

I should summarise very briefly the procedure for determining applications for housing. It falls to the local housing authority to make a decision in the first instance as to whether an applicant for housing has become homeless intentionally. In reaching that decision, it must have regard to the guidance issued by the Secretary of State and under that guidance the local housing authority has to give “careful consideration to the circumstances of the applicant and the household” (Homelessness Code of Guidance for Local Authorities (2002) para. 7.15, now para. 11.22 of the Homelessness Code (2006)). The local authority is under a statutory duty to make such enquiries as are necessary to satisfy itself as to whether any, and if so what, duty is owed to the applicant (S 184 of the HA 1996, and see generally R v Royal Borough of Kensington & Chelsea, ex parte Bayani (1990) 22 HLR 406). The inquiries will not necessarily be limited to matters raised by the applicant. If the local authority decides that a person has become homeless intentionally, the applicant has the right to have that decision reviewed by the local authority (s 202 of the HA 1996). If a person is dissatisfied with the decision on review under s 202, he may appeal, on a point of law only, to the county court. From there he can appeal, with permission, to this court.

I turn now to the factual background. This is set out in detail in the judgment of the judge, but for the purposes of this appeal it is enough to take the summary provided by Mr Pettit, who appears for Mr Denton:

“1.

Leon Denton is 22 years old (DOB 21.2.1985). He has severe learning difficulties and is unable to read or write. He is currently being offered educational support from a charity called YESS (Youth Education and Support Services). He also suffers from depression.

2.

From his birth until around May 2005, Leon Denton lived with his mother, Mrs Salmon, and his brother at the family home at 12 Brunswick Park, London. Mrs Salmon also suffers from depression as well as agoraphobia. She is registered disabled.

3.

Mrs Salmon told Leon Denton to quit her home in around May 2005, after which he went to live with his sister at 41 Adamshill Road. SE26. His sister asked him to leave her home in February 2006 at which time he made his application to Southwark for assistance as a homeless person.

4.

This was not the first time Mrs Salmon had asked Leon Denton to leave. In her (undated) Notice to Quit letter, she states “I have asked him to leave. I did this before in February 2004. It was not the first time. My daughter took him. His brother tried for them to be put into hostels and nothing could be done …”

5.

Leon Denton was interviewed by Southwark’s Homeless Persons’ Unit on the 6th of March 2006.

6.

By a letter dated the 13th of March 2006, Southwark communicated its decision that it found Leon Denton to be eligible, homeless and in priority need, but that it found him to have become homeless intentionally.

7.

Leon Denton’s solicitor made a request for a review of this decision in a letter dated the 3rd of May 2006. In that letter, further representations were made, in particular it was said that there had been a breakdown in the relationship between Leon Denton and his mother and that it was not reasonable to expect a 21 year old always to obey his mother.”

Mr Denton exercised his right under s 202 of the HA 1996. On 19 June 2006, Mr Richard Michael, reviews manager for Southwark, communicated his decision on review. He upheld Southwark’s decision and he described the matters that he had considered. He starts with setting out the points Mr Denton’s solicitors had raised:

“Your solicitors have raised the following points for me to take into account when conducting the review:

They state that your last settled accommodation should be treated as being your sister’s address.

They state that you were living at your sister’s address for about 10 months prior to approaching the Council for assistance.

They state that it is not a reasonable expectation for a 21 year old to be expected to obey his mother and that your failure to do so cannot therefore lead to a finding that you have made yourself homeless intentionally.

They state that you never admitted to smoking “weed” at home but had said that it was your brother who smoked the drug.

They stated that your homelessness is a result of your sister asking you to leave her accommodation.

They have stated that you have significant depression”.

The reviews manager then considered why Mrs Salmon had asked him to leave her home:

“…In looking at the reasons why you were asked to leave 12 Brunswick Park, you have stated at interview on 6 March 2006 that your mother asked you to leave because you were getting into trouble with your younger brother. You said that there was a problem with stealing and that you had been arrested and sentenced to prison. You said that you also had problems with your mother as you were arguing with her. When asked to specify you stated that you would be rude to her, smoke weed in the house, come and go when you wanted without agreeing to her requests to come back by a certain time. You said that you were aware your mother did not want you in her house as a result of your behaviour. On 6 March 2006, your mother was contacted and stated that she could not cope with your threatening behaviour and that you came and went whenever you wanted to. She said that on one occasion, the police were called and that she could not cope with you and that she would not take you back as she could not take it any more. In a written letter to the Council she stated “I have had the police around my house on many occasions because of him. Leon is aggressive and abusive and he needs anger management and he smokes cannabis. So I would like to serve him with a notice to quit my house [as soon as possible].”

From there the reviews manager went on to consider whether it was reasonable for Mr Denton to continue to live with his mother. He addressed the argument put by Mr Denton’s solicitors that it was not reasonable to expect a 21 year old to obey his mother:

“Your solicitors have stated that it is not reasonable to expect a 21 year old man to obey the rules set by his mother in her own home. I have to disagree with this submission. As a person living in your mother’s house, it would be reasonable to expect to have to abide by her house rules. It is clear that smoking illegal drugs and behaving in a threatening or abusive manner are likely to constitute a breach of any tenancy or licence agreement. I do not accept your solicitor’s claim that you should be able to behave this way simply by virtue of the fact that your landlady also happens to be your mother. Your mother had clearly had enough of you behaving unreasonably in her home and so felt she had no option but to ask you to leave.”

The reviews manager there makes reference to what the position would have been if Mrs Salmon had been Mr Denton’s landlady rather than his mother. He may have been referring to some argument put by Mr Denton’s solicitors not listed at the start of his letter. The reviews manager then considers whether Mr Denton could have occupied his mother’s home and whether it was reasonable to expect him to do so.

“Was the accommodation available for the applicant to occupy?

You had lived at the accommodation from 1985 up until last year when your mother asked you to leave due to your behaviour. The eviction was clearly as a result of your unreasonable behaviour and you would have been able to continue living there had it not been for this behaviour.

… Was it reasonable for the applicant to occupy the accommodation?

I am satisfied that the accommodation was reasonable for you to occupy. You had your own room in your mother’s house and had the use of all the facilities. No issue has been raised that suggests that the accommodation was in anything other than a good state of repair. I am satisfied that accommodation was reasonable for you to occupy.”

After this decision was communicated, Mr Denton appealed to the county court. Southwark for its part went on to determine that Mr Denton was in priority need, and pursuant to s 190 of the HA 96 (not set out above) it therefore provided him with accommodation to give him a reasonable opportunity of securing accommodation for himself. So far as this court is aware, Southwark is continuing to provide him with accommodation. But Mr Denton understandably still wants Southwark to provide him with a permanent home. On 9 October 2006, HHJ Cotran, in the Clerkenwell and Shoreditch County Court, allowed Mr Denton’s appeal. I shall need to refer to the judge’s reasoning but I propose to do so under the subheadings below. These subheadings are my reasons for allowing this appeal set out in summary form above and I must now amplify them.

To determine whether a person is within the statutory definition of intentional homelessness, all the circumstances of the case must be considered

Little needs to be said about this because it is evident from the Homelessness Code and in addition it is common ground. The judge cited a passage from the judgment of Tucker J in Brent LBC ex parte McManus (1993) 25 HLR 643, where it was held (in relation to the statutory predecessor of ss 191 and 177(2)) that the test of intentional homelessness was “subjective”. In my judgment, it is clear from the context that what Tucker J meant by this was that intentional homelessness had to be determined on all the facts of the case, and that the word “subjective” has to be understood in that sense. Accordingly, it cannot be determined for instance, simply by reference to local conditions or the local authority’s policy. Nor should it be looked at from the perspective only of the applicant so that the role of other persons or factors is ignored.

One of those circumstances is the fact that the previous home was a family home. There are significant differences between the family home and rented accommodation

This point arises out of the analogy which the reviews manager drew between Mr Denton’s situation at his mother’s home and that of a tenant and landlady. Mr Pettit, who appears for Mr Denton, submits that this was inappropriate. He points out that there are differences between a family home and the situation where a person occupies premises under contract. He points out, correctly, that a child has no enforceable right to remain in or return to the family home. He or she occupies at the whim of the parent and can be excluded at the whim of a parent. Moreover, the former child does not necessarily choose the terms of occupation, which Mr Pettit calls "the house rules", and cannot choose not to take up occupation. But the analogy that the reviews manager drew with a landlady was in order to meet an argument that Mr Denton was not obliged to comply with house rules. His mother’s requirements were in the view of Southwark reasonable and did not go beyond what would normally be required by a tenancy agreement. ( I turn to the question of the reasonableness of her requirements under the next subheading). It was an analogy drawn for this limited purpose alone.

Mr Pettit makes a further submission that the reviews manager only considered the physical characteristics of Mrs Salmon’s home to demonstrate that she physically had enough room to accommodate Mr Denton. He points to the passage under the heading “Was it reasonable for the applicant to continue to occupy the accommodation?”. The four sentences under that heading focus on the physical facilities of the property. Mr Pettit submits that the reviews manager did not consider the dynamics of the relationship between mother and son.

In my judgment, however, it is clear from the decision of the reviews manager, read as a whole, that he did take into account the relationship between Mr Denton and his mother: see the passages quoted in paras 9, 10 and 11 above.

Nonetheless, people living together must show each other appropriate respect and this necessarily involves complying with any reasonable requests which one person makes to another. In this case, Mrs Salmon reasonably expected Mr Denton to behave so as not to cause a nuisance to her or others and he did not do so. The cause of his being asked to leave was his bad behaviour

As appeals are restricted to points of law, Mr Denton had to say that Southwark's decision was unreasonable in the public law sense. It appears from the judgment that Mr Pettit skilfully deployed an argument on these lines: Southwark had failed to give proper consideration to a number of matters, including the mother/son relationship, the fact that at his age Mr Denton needed to lead an independent life and the fact that in the natural order of things children "outgrow the nest", Mr Denton's private life had to be respected, that his relationship with his mother had broken down and therefore (despite his admitted bad behaviour) it was not reasonable for him to continue to occupy the premises.

The judge accepted this argument:

“34.

I do accept that the decision is Wednesbury unreasonable in the sense of failing to take into account a very, very important consideration in this case. These considerations are the facts that this situation between mother and son had existed at least from 2004, if not before. There was, between those years, when he was a teen, as she says that was the time she asked the Council to move him and she says she was deceived into not knowing that he could have gone to the hostel because he was under eighteen, that relationship had started to break down from then.

35.

The reviewer failed to take into account her situation as well as his. There is no doubt that he was “a bad boy”. There is no doubt that he probably smoked weed or cannabis. There is no doubt that the police did come on at least one occasion in relation to something we do not know about. He himself accepts that his behaviour was not great behaviour, or good behaviour. It was on the whole bad behaviour. But it seems to me that, to attribute that as the sole cause for him leaving as he did and not taking into account the general situation, it was a failure to take into account and to address a very important element as submitted by Mr. Pettit. Additionally, there was depression by the mother and by the son.

…

37 In this case the situation that confronted this particular Applicant is a situation where he had lived with his mother all his life; where he was becoming of age, so to speak; where he was to say the least guilty of bad behaviour, but that she was instrumental in him ceasing to occupy the accommodation because she really told him to go, and he had to go and stay with his sister for a few months until she, the sister, told him to go because her boyfriend or his partner did not approve of his behaviour.

38.

To call that in the round “intentional homelessness” on his part is, I consider, the wrong use of the word and the wrong application of the test. That there was a deliberate act in his misbehaviour there is no doubt, but to call that...the[causal] factor to a situation where it would have been reasonable for him to stay or to occupy, looking at it in the round, is in my judgment clearly a misdirection in law. For those reasons, coupled with the fact that the question of depression was not enquired into, or taken into account at all in this situation, I would allow this appeal and quash the review decision which was made on the 19 June 2006.”

There are parts of counsel’s submission that I would accept. Children should be encouraged to lead an independent life when they reach an appropriate age. It is also clear that art 8 of the European Convention on Human Rights (right to respect for private and family life) protects the private life of a child as much as that of an adult. But it is not an absolute right. In Airey v Ireland [1979] EHRR 305, 319, the European Court of Human Rights held that recognition by the state of the right to respect for private or family life may “sometimes necessitate [husband and wife] being relieved from the duty to live together”. In Airey, the issue was whether the state should have provided financial assistance to the applicant to enable her to obtain a judicial separation. That case is not authority for the proposition that a person has a right to require the state to provide a member of a family with accommodation if he deliberately conducts himself so that he is no longer able to live with other members of the family.

Moreover, counsel’s submission leads him to the conclusion that Mr Denton was entitled to distance himself from any requirements imposed on him as a condition of living in his mother’s home. His mother stipulated that he should not smoke marijuana in her home and that he should not simply come and go as he pleased. She could not cope with his threatening and abusive behaviour. Mr Denton admits that he was rude to her and that he smoked marijuana. His behaviour was such that the police had to be called to the house. Although the judge found that Mrs Salmon was instrumental in causing Mr Denton to cease to occupy her home (judgment, para. 37, above), Mr Pettit did not support this part of the judge’s judgment. It is common ground that it was Mr Denton’s bad behaviour had caused him to lose his home

Southwark was satisfied that the mother’s requests were reasonable. In our society, and probably most human societies, it is essential when people live together, that they show appropriate respect for each other’s needs and follow any requests that one reasonably makes to the other. This is not a case where the mother was laying down inappropriate rules. A parent might lay down unreasonable rules about (say) access to a teenager’s room or its tidiness. (In my exchanges with counsel during argument, Mummery LJ interposed that that was a mother speaking – and my examples may be derived from knowledge so acquired. Abella J of the Supreme Court of Canada has written extrajudicially that “every decision-maker who walks into a courtroom….is armed not only with the relevant legal texts, but with a set of….experiences that are thoroughly embedded” (see 28 Osgoode Hall LJ 507 at 510 (1990)). Different considerations would arise in relation to the question whether it is reasonable to continue to occupy accommodation if for example a parent was laying down totally unreasonable rules about meeting friends.

I also consider that the judge misunderstood the position of Mrs Salmon. She had her own disability, and she found that she could not control Mr Denton’s behaviour. To say that “she was instrumental in Mr Denton ceasing to occupy the accommodation because she really told him to go” (para. 37) and that his behaviour was not the reason why her home was reasonable for him to occupy (para. 38) takes no sufficient account of the fact that she had said that she was willing to have him back if he behaved. She thereby demonstrated the bond that often exists between a mother and her son.

Moreover, in my judgment, when the judge dealt with causation and reasonableness to occupy in para. 38 of his judgment (set out in para. 18 above), he conflated those two requirements. As I have explained above, para. 4), these are separate requirements. There is no need to allocate responsibility for reasonableness to occupy. The judge was in error in considering whether the misbehaviour was a causal factor in relation to the reasonableness of continued occupation.

In determining whether it is reasonable for a person to have continued to occupy his previous home, the court must disregard the deliberate conduct or course of conduct that led him to leave that home

Mr Grundy, for Southwark, relied on the following passage from the judgment of Schiemann J in R v Hammersmith and Fulham LBC ex p P (1989) 22 HLR 21 at 29:

“Fourthly, Mr Arden submitted that there was no material upon which that authority could conclude that the applicants could reasonably have remained in their previous accommodation, it being undisputed that they were under a serious and credible life threat. At this stage one must be careful to identify the time in respect of which section 60(1) reasonableness is to be tested. There is the time when a person does or fails to do something in consequence of which he ceases to occupy the accommodation, and then there is the time when a person actually ceases to occupy the accommodation. The former may be contemporaneous with the latter but need not be. If I am right in the earlier part of this judgment then the present case is one where in the case of all the families save household 3 the acts or omissions in consequence of which they ceased to occupy the accommodation preceded by quite a substantial period of time their actual leaving of that accommodation. It seems to me that the phrase “which it would have been reasonable for him to continue to occupy” refers to the earlier time (there being implied the additional phrase “had he failed to do something in consequence of which he ceased to occupy the accommodation”). Insofar as Mr. Arden sought to argue that the phrase “which it would have been reasonable for him to continue to occupy” referred to the later time (there being implied the phrase “had he not ceased to occupy”). I reject that argument. Mr. Arden accepts that if my construction of the subsection be correct, the authority was entitled to conclude that the applicants could reasonably have remained in their previous accommodation”.

So Schiemann J adopted a temporal approach and held that reasonableness was to be determined by asking whether it would have been reasonable for the applicant to continue to occupy the accommodation at a point in time before the deliberate acts which led to the loss of the accommodation took place. It was common ground that this was the approach to be adopted in this case, and in my judgment the approach of Schiemann J is in general correct. Mr Pettit carries the temporal approach to its logical conclusion. He submits that Southwark should have made investigations into the position as it stood between Mr Denton and Mrs Salmon before any bad behaviour started. It should then have made an assessment as to whether the situation was one which Mr Denton had outgrown and whether he ought to be living independently of his mother. In my judgment what the local housing authority has to do is to determine whether it is reasonable for the applicant to continue to occupy premises ignoring the acts or omissions for which the applicant himself or herself is responsible. If that is done in the present case, the misbehaviour has to be left out of the reckoning. I deal with the question whether Southwark discharged its obligations to make inquiries into the situation as it would have been if Mr Denton’s misbehaviour had not occurred under the next subheading.

It is for the authority to decide what inquiries to make and the court will not intervene unless the decision of the local authority not to make further inquiries is perverse. It cannot be said that Southwark's approach in this case failed to comply with public law principles

I have explained that a local authority must make appropriate enquiries when it receives an application for accommodation. However, the court will not hold that it should have made further enquiries unless it was unreasonable in the sense of the perverse or irrational for it not to make further enquiries. Thus, in Cramp v Hastings BC [2005] HLR 48, Brooke LJ, giving the judgment of the court of which I was also a member, held:

“ In each case, it was for the council to judge what enquiries were necessary, and it was susceptible to a successful challenge of a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further enquiries suggested by the appellant’s advisers.”

In this case, Mrs Salmon had agreed to take Mr Denton back. Southwark considered that it was reasonable for him to continue to occupy her home on the basis that it was reasonable to expect him to behave as she requested. Southwark did not investigate the extent of Mrs Salmon’s depression and agoraphobia. In my judgment, the omission to do so does not render its decision liable to challenge, because there was no indication that her condition was particularly severe. Mr Denton had lived with her previously and there was no indication that Mrs Salmon’s condition had changed. Mr Pettit submitted at one point that for Mr Denton to live with Mrs Salmon might cause Mrs Salmon’s health to deteriorate. It is difficult to see why that should be so on the hypothesis required for this purpose, which is that Mr Denton would behave as she reasonably required.

Southwark also did not make any inquiry as to whether Mr Denton had "outgrown the nest". In my judgment, this is not a relevant inquiry unless the available information suggested that the relationship between Mr Denton and his mother may have broken down so badly (other than as a result of Mr Denton's own behaviour) that it would not have been reasonable to expect him to live with her. On the contrary, the available information suggested that Mrs Salmon was willing for Mr Denton to live with her if he behaved, and Southwark regarded that willingness as genuine. Accordingly the omission to make further inquiries into the relationship between mother and son in my judgment did not have the effect of rendering Southwark's decision on intentional homelessness open to challenge on public law principles.

For the reasons given above I would allow this appeal and direct that Mr Denton's appeal against Southwark's decision dated 19 June 2006 be dismissed. I would add this. Intentional homelessness is a concept which in its application is fact-sensitive and accordingly I do not consider that the court can give general guidance for the situation where a teenager or young adult leaves the family home beyond that contained in the reasons which I have given for allowing this appeal.

I agree.

I also agree.