Chishimba v Royal Borough of Kensington And Chelsea

In September 2009 Ms Chishimba presented herself to the Royal Borough of Kensington and Chelsea ("the Council") as homeless. The council decided that she was eligible, homeless and in priority need and that she had not become homeless intentionally. The council thus concluded that it owed her the full housing duty under section 193 of the Housing Act 1996 and granted her a non-secure tenancy of a one-bedroomed flat at 34B Chipperfield House, Sutton Estate, London SW3. However, unknown to the council, Ms Chishimba had been deceitful. She had supported her application to the council with a counterfeit British passport which the council had taken to be genuine. In reality her leave to remain in the United Kingdom was due to expire shortly and she would become an illegal overstayer. As a result of her immigration status at the time she was not in fact eligible for assistance under Part 7 of the Housing Act 1996.

Some time later the UK Border Agency discovered the existence of the counterfeit passport, as a result of which Ms Chishimba was prosecuted and sentenced to a suspended term of imprisonment. The UKBA also informed the council in February 2011.

Armed with that information the council decided that its housing duty had ended and served her with a notice to quit. The letter, dated 23 June 2011, informing her of that decision, read in its material parts as follows:

On 5 December 2011 the county court made an order for possession against her. In the meantime, however, three things had happened. First, Ms Chishimba had given birth to a daughter on 11 January 2010. Second, on 21 October 2011, she had been granted leave to remain in the United Kingdom until 2014. The consequence of the grant of leave to remain was that she became eligible for welfare benefits and housing assistance. Third, on 8 November 2011 she reapplied to the council for homelessness assistance. The council rejected her application and, on a review dated 1 June 2012, maintained that rejection. An appeal to the county court was unsuccessful. Ms Chishimba now appeals to this court.

The critical paragraphs of the reviewing officer's decision were the following:

Whether a person is intentionally homeless depends on section 191 of the Housing Act 1996. That section provides so far as material:

If B happens “in consequence of” A then A must play a causative part in the occurrence of B. In the context of section 191 A must be a deliberate act or omission of the applicant. It need not be shown that the applicant deliberately did something for the purpose of getting himself turned out. It is enough that he deliberately did something or omitted to do something which had that consequence R v Salford CC ex p Devenport[1983] 8 HLR 54. The cases show that, where there are potentially multiple causes of a person's homelessness, the decision-maker must carefully evaluate the facts in order to see whether the applicant's homelessness is shown to have been the likely consequence of his deliberate act or omission (Watchman v Ipswich Borough Council [2007] EWCA Civ 348, [2007] HLR 33). Some times this has been described as the “effective” cause. The ultimate question is: what is the real or effective cause of the homelessness? That question should be answered in a practical common sense way and it is more than a "but for" test. The effective cause will often be the chronologically proximate cause but it need not be (R v Hackney London Borough Council, ex parte Ajayi [1997] 30 HLR 473.

If there is more than one operative or effective cause it suffices that only one of them is the deliberate act or omission of the applicant: R v London Borough of Hammersmith and Fulham ex parte P [1989] 22 HLR 21 O'Connor v Kensington and Chelsea RLBC [2004] EWCA Civ 394, [2004] HLR 37.

In some cases the chain of causation will be linear. As Mr Luba QC, appearing with Mr Fitzpatrick for Ms Chishimba put it, if a series of dominoes falls over it does not matter that the applicant did not knock over the last domino if he set the domino effect in motion. In such a case the control mechanism is that of the objective likelihood at the date of the deliberate act or omission that homelessness will be the end result (Stewart v Lambeth Borough Council [2002] EWCA Civ 753 [2002] HLR 40). In other cases, as Mr Grundy appearing for the council pointed out, there will be parallel causes. In such a case the test will be satisfied if one of those causes was the deliberate act or omission of the applicant. Ultimately the question is one of fact for the local authority directing itself properly in accordance with the law.

So one must ask: what act or omission on the part of Ms Chishimba caused her to cease to occupy 34B Chipperfield House? The deliberate acts on the part of Ms Chishimba were her acquisition of the counterfeit passport and her use of it to deceive the council into accepting her claim to be homeless back in 2009, but she argues the consequence of those deliberate acts was her acquisition of her accommodation in the first place not her subsequent loss of it. What caused her to lose the accommodation was the discovery by the UKBA and then the council of the initial deception and the council's own decision to terminate her occupation. Underlying the council's decision and hence the loss of 34B was the fact that Ms Chishimba was not eligible for assistance in the first place. If one wishes to travel back in time from the possession order via the discovery of the falsity of the passport, the real and effective cause of the loss of the accommodation was her ineligibility for the initial grant.

Mr Grundy has referred in his skeleton argument to a number of cases in which occupiers have been held to be intentionally homeless where the immediate cause of their homelessness has been the accrual of mortgage or rent arrears. Thus in R v LB Barnet ex parte Rughooputh [1993] 25 HLR 607 to which the reviewing officer referred, the applicant was the owner of a flat which had been acquired under the right to buy and transferred into her own name on divorce. Some two years later she mortgaged the flat in order to invest in a business. In order to obtain the mortgage she gave false information to the lender. The business failed and she fell into arrears under the mortgage. The arrears resulted in repossession by the lender. When she applied to the council it decided that she was intentionally homeless because she had obtained the mortgage by giving false information and her home had been repossessed by the lender. Their decision was upheld by this court.

In R v Wandsworth LBC ex parte Onwudiwe[1994] 26 HLR 302 the applicant was the owner of a house in Tooting who mortgaged it and then remortgaged it in order to invest in a business. When the business failed he fell into arrears under the mortgage and his house was repossessed. On his application to the council the council decided that he was intentionally homeless because he had secured a loan on his home in the full knowledge of there being little prospect of his being able to make the necessary repayments. Again their decision was upheld by this court. The nub of the decision was that the council were entitled to find that, in taking out the loan, the applicant was deliberately putting his home at risk.

The last case in this series is Watchman v Ipswich BC. In that case the applicants were the tenants of a house under a secure tenancy. They exercised a right to buy and bought the house with the aid of a mortgage. The mortgage payments were higher than the rent had been. One of them lost his job. Arrears under the mortgage began to accrue and that eventually led to repossession. The council decided that they were intentionally homeless because they had taken the decision to buy the house and incur the higher mortgage payments despite their financial difficulties in paying the lower amount of the rent. This court upheld that decision.

It is a feature of each of these cases that the accommodation in question was one which the applicant was lawfully entitled to occupy as freeholder, leaseholder or secure tenant before entering into the transaction which eventually led to the repossession. As the cases stress, each case must be considered on its own facts. In my judgment the reviewing officer was wrong to extrapolate from these cases the general principle that acts committed before acquiring the accommodation could be equated with acts carried out after the accommodation had been lawfully occupied and enjoyed.

In our case Ms Chishimba never had the lawful right to occupy the flat. I agree, therefore, with Mr Luba that these cases do not support the council's decision in this case. In essence I accept the argument for Ms Chishimba. The immediate and proximate cause of the loss of her home was the council's discovery of her fraud and, if one travels back in time from that immediate cause, then one arrives at the conclusion that the effective cause of her no longer being able to occupy 34B Chipperfield House was that she was not entitled to it in the first place.

A similar analysis underlies Ms Chishimba's argument that it was not reasonable for her to continue to occupy 34B Chipperfield House. Because of her initial deception of the council she should not have been granted the tenancy in the first place. When the council discovered the deception they terminated the tenancy. How then can it be plausibly said that it would have been reasonable for her to continue to occupy a flat to which she never had any lawful right? The reviewing officer did not to my mind address this question at all. She simply asserted that it would have been reasonable for Ms Chishimba to have continued to occupy the flat.

The judge in the court below did address the question. He relied on the decision of this court in Denton v Southwark LBC [2007] EWCA Civ 623, [2008] HLR 11. That was a case in which a young man had been asked to leave his mother's home because of his unacceptable behaviour. She would have been willing to continue to provide him with a home if he had been prepared to abide by her house rules which were reasonable rules. It was in that context that Arden LJ said that:

“...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…

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."

On the facts of that case, if the applicant had not indulged in unacceptable behaviour, he would have continued to occupy the accommodation. It would have been reasonable for him not to have behaved unacceptably. Therefore it would have been reasonable for him to have continued to occupy the accommodation. But how can that reason be transposed to our case? It would have been reasonable for Ms Chishimba not to have used a counterfeit passport to deceive the council, but, if she had not used the counterfeit passport she would not have been granted a tenancy. On the assumption that she had not been deceitful, the flat would not be accommodation that it would be reasonable for her to continue to occupy because she would not have occupied it at all. I reject the suggestion made by Mr Grundy that one can simply ignore the fact that the passport was counterfeit and treat Ms Chishimba as if she had applied to the council with a genuine British passport.

The question of obtaining accommodation by deception arose in R v Exeter City Council ex parte Gliddon [1984] 14 HLR 103. The applicants in that case had obtained a tenancy by deception. When the landlord found out he required them to leave, which they did. Woolf J held that once the deception had come to light it was no longer reasonable for them to continue to occupy the accommodation. He said:

Accordingly, in my judgment, the council made at least two errors of law in its decision. Mr Luba also raised the question whether 34B was settled accommodation as the case-law says that it must be. This point does not arise for decision in the light of Ms Chishimba's success on her first two grounds of appeal and I say no more about it.

However, for the reasons I have given I would allow the appeal.

I agree.

I also agree.