White v Mayor And Burgesses of the London Borough of Southwark

This is an application by Anne Marie White for permission to appeal against the order made on 30 January 2008 by HHJ Simpson in the Lambeth County Court. By that order the judge dismissed her appeal from the review decision given on 25 July 2007 by Sandra Pass, a senior officer of Southwark Council. Miss Pass had been charged with the duty to carry out a review of the council’s decision on 19 February 2007, such review having been requested by the applicant. The applicant approached the council originally on 12 January 2007, stating that she was homeless. The council, by the decision of 19 February 2007, agreed that she was homeless and in priority need but found that the applicant had made herself intentionally homeless, and, on Miss Pass’s review, that finding was confirmed. The applicant then appealed to the judge, with the consequence that her appeal was dismissed. She then approached this court for permission, notwithstanding that an appeal would be a second appeal. Rimer LJ refused permission on the papers. The applicant renews the application before me in open court, as is her right. But by CPR 52.13, to succeed she must show that the appeal would raise an important point of principle or practice or that there is some other compelling reason why this appeal should be heard.

The background facts are these. The applicant was born on 2 July 1990. Prior to February 2006 she lived with her mother and her siblings at 88 St Mildred’s Road, London SE12. In February 2006 she was excluded from those premises, following an argument with her mother. Being homeless she applied to the council. In its decision of 19 February 2007 it referred to the question whether she had made herself homeless intentionally and to the enquiries which it had made. The council concluded that the fundamental cause of her homelessness was the applicant’s unreasonable behaviour. The applicant lost her accommodation as a result of her deliberate act of continuing to behave unreasonably and not obeying the house rules laid down by her mother.

The applicant then sought a review, pursuant to section 202 of the Housing Act 1996 (“the Act”). On the review, Miss Pass upheld the earlier decision by the council for the reasons set out in her decision letter of 25 July 2007. That contains a full description of the matters taken into account and of the questions which Miss Pass addressed. Miss Pass had contacted Lewisham Social Services, who had received a referral from the emergency duty team in March 2004 when the applicant was only 13. She had been classed as a runaway. In November 2004, when the applicant was 14, she had failed to return home after school and Lewisham Social Services reported that the police had returned the applicant to her mother’s home on at least two occasions about that time. On 21 January 2005, when the applicant was 14, her mother reported the applicant missing again when she had not returned home by 9pm. Again the police escorted the applicant home.

Miss Pass accepted the version of events given by the applicant’s mother, even though that version was disputed by the applicant. Miss Pass found the applicant acted deliberately in refusing to obey reasonable house rules set by her mother and she found that the applicant had lost her accommodation as a consequence of her deliberate act. She found that the applicant knew that refusing to adhere to her mother’s rules would lead to her being asked to leave. The applicant then exercised her right under section 204 of the Act to appeal to the county court on a point of law. The judge dismissed the appeal. Then came the application to this court, Rimer LJ refusing permission to appeal and saying that the grounds of appeal had no real prospect of success and did not cross the rule 52.13 threshold.

On the reconsideration by this court today, Mr Sylvester Carrott, for the applicant, raises two issues. First, did the judge err in holding that the conduct of the applicant was causative of the loss of accommodation? Second, did the judge, in determining that that conduct was so causative, fail to have regard to the policy of Part VII of the Act that young persons below the age of 16 do not have the capacity to make a homelessness application? It is said that in consequence of that policy such a person cannot be found to be intentionally homeless by reason of an alleged deliberate act committed at a time when (1), it was not reasonably foreseeable that the deliberate act would lead to the loss of accommodation and (2), that person had no capacity to apply under Part VII of the Act.

Regrettably, no statement to comply with paragraph 4.14A of the Part 52 Practice Direction was provided until less than 24 hours before the hearing and then only on the prompting of this court. Mr Carrott has explained to me that he was only instructed on Tuesday of this week. His solicitors nevertheless should have borne in mind that if they were instructing an advocate, paragraph 4.14A had to be complied with, as well as paragraph 4.14A. The requirement in the Practice Direction is no doubt designed to ensure that advocates for an applicant give proper consideration to whether the application should go ahead, notwithstanding the reasons given for the refusal by a member of this court of permission to appeal. In the statement that has been provided Mr Carrott has unfortunately misquoted the order made by Rimer LJ. He referred to rule 52.3 instead of rule 52.13, to which the Lord Justice had referred.

It is not apparent whether or not there has been compliance with paragraph 4.17. Certainly I have not been provided with the statement which is required by paragraph 4.14A(2)(c) to the effect that the requirements of paragraph 4.17 have been satisfied. That paragraph requires a copy of the reasons given by this court for refusing permission to be sent to the Legal Services Commission as soon as the order has been received from this court. No doubt the purpose of that is to give the Commission the opportunity to see whether it is right to continue funding in view of the reasons given by this court refusing permission. I have directed that I be supplied with a statement as to whether or not that requirement has been satisfied.

I return now to the issues sought to be raised by this appeal. On the first issue Mr Carrott submits that the judge erred in law in failing to consider whether the deliberate act of the applicant was causative of the loss of accommodation. There are several reasons why that submission is hopeless. First, as Rimer LJ pointed out, it raises a question of fact not law. Second, that question of fact was decided against the applicant by Miss Pass on the review and was rightly decided against her by the judge. Again that was Rimer LJ’s conclusion. Third, as it seems to me it raises no important point of practice or principle and so cannot be entertained. It is plainly a matter to be considered by the local authority, and in this case it did and reached the conclusion to which I have already referred. For my part I cannot see that on a second appeal it is right to raise that sort of issue.

I turn then to the second issue. On that, Mr Carrott submits that it was not reasonably foreseeable that the conduct of the applicant when 13 or 14 would lead to the loss of accommodation. But that again is a question of fact which was expressly dealt with in the review decision, where it was found:

“You knew that refusing to adhere to your mother’s rules would lead to you being asked to leave, and this would result in your homelessness. You were aware of what the house rules were and I am satisfied that you could understand the consequences of your actions.”

I know of no reason that would make it impossible for a local authority to reach that conclusion in relation to a 13- or 14-year-old.

The second issue, however, might be said to raise a question of law, in that it gives rise to the question whether a person under 16 can in law, consistently with what is said to be the policy of the Act, deliberately do an act causative of the loss of accommodation. Mr Carrott referred me to R v Oldham Metropolitan Borough Council ex parte Garlick [1993] AC 509 as authority for the proposition that the policy of the Act is that a person under 16 has no capacity to make a homelessness application under Part VII. That authority dealt with three appeals. The first two related to very young children living with their parents. The third related to a vulnerable adult. What Garlick decided on the first two issues was that, as a matter of construction of what is now section 189 of the Act, dependent children, who normally include all children under 16, are not among those classified as in priority need to whom a local housing authority owes a duty. Lord Griffiths, giving the leading speech in the House of Lords, said at page 517:

“The intention of this Act was to create a duty to offer accommodation to those homeless persons in priority need who can decide whether or not to accept the offer, and this does not include dependent children.”

On the third appeal, it was held that if an applicant was so disabled as to lack the capacity to be regarded as an applicant, the local authority owed that person no duty. In that case the applicant was an adult in respect of whom there was some doubt as to whether or not she had the requisite understanding. What Garlick does not say is that a person under 16 cannot become homeless intentionally. Nevertheless it is Mr Carrott’s submission that on this appeal that is a question which ought to be heard and fully considered. By section 191 of the Act a person becomes homeless intentionally if he deliberately does, or fails to do, anything in consequence of which he ceases to occupy accommodation available for him and which it would have been reasonable for him to continue to occupy. I cannot see why a local authority cannot find that a 13- or 14- or 15-year-old is capable of such a deliberate act or omission even if, as I accept is the practice, the local authority will not accept that such a person can apply under the Act. That seems to me to be an entirely different question. As Rimer LJ said, the fact that at the time the applicant could not make an application does not mean that her conduct was not causative of the loss of her accommodation and it is to that question that the statute directs the local authority’s attention. It does not seem to me that there is any real question raised by this particular issue.

Thus, although Mr Carrott has argued that the second issue raises an important point of law or otherwise provides a compelling reason for the appeal to be allowed to go ahead, it is not, in my judgment, an appeal which would have any real prospect of success because the answer to that question is obvious.

It follows that the application must be dismissed.