Michalczyk v London Borough of Southwark

This is a renewed application for permission to appeal against an order of HHJ Cryan, sitting in the County Court at Central London, by which he dismissed the applicant’s appeal against a review decision under the homelessness provisions of the Housing Act 1996. Second appeal criteria apply. Permission to appeal was refused on the papers by Patten LJ.

In barest outline, in April 2012 the applicant applied to the council as homeless but about two weeks later, before any decision was made on her application, she was granted an assured shorthold tenancy of private accommodation at 118 Marvel Lane. In March 2013 she moved out of that accommodation. She did so on the expiry of a notice served under section 21 of the Housing Act 1988, without waiting for an order for possession to be made. After a period living with her parents she made a fresh application for assistance with housing. She was notified of the council’s decision that she had made herself intentionally homeless by voluntarily relinquishing her tenancy at 118 Marvel Lane. That decision was maintained on review and was upheld on appeal to the County Court.

The first ground of appeal to this court is that the reviewing officer erred in concluding that an assured shorthold tenant who vacates her accommodation on the expiry of a valid notice under section 21 (to which there was no defence) without waiting for an order for possession to be made renders herself intentionally homeless. It is submitted that the Secretary of State’s statutory guidance on this issue is inconsistent with the decision of this court in The Queen on the application of Sacupima v Newham London Borough Council [2001] 1 WLR 563 and that it is the guidance rather than the decision in Sacupima that local authorities should follow. The guidance is to the effect that when a tenant has received a valid section 21 notice and the authority is satisfied that the landlord intends to seek possession it is unlikely to be reasonable for the tenant to continue to occupy the property.

In his reasons for refusing permission to appeal, Patten LJ accepted that this ground of appeal raises a real issue but he considered the point to be of only academic interest in the present case given the reviewing officer’s conclusion that the applicant’s vacation of the premises was not caused by the section 21 notice. The review decision considered the guidance and Sacupima, noting that although the applicant had been served with a section 21 notice she could not be evicted from the property without a court order, but at paragraph 32 the decision recorded that the applicant had confirmed that her departure was not linked to her having been served with any notice and that she had left for other reasons. At paragraph 35 it stated that the reason why she had decided to leave related to issues of disrepair of the premises; but the decision went on to find that the state of repair of the premises was not such as to make it unreasonable for the applicant to continue to occupy them.

The difficulty about that, however, as underlined by Mr Johnson in his renewal statement for this hearing, is that it does not tackle the question whether by reason of the section 21 notice it had ceased to be reasonable in any event for the applicant to occupy the premises or whether in these circumstances her decision to leave the premises could be said to have been a deliberate act causative of homelessness.

It seems to me, respectfully disagreeing on this point with Patten LJ, that the first ground of appeal not only raises a real issue but raises an important point of principle which cannot necessarily be dismissed as academic and that it therefore deserves the grant of permission to appeal.

The second ground of appeal is that there was a failure properly to consider whether 118 Marvel Lane was the applicant’s last settled accommodation or, alternatively, that the reviewing officer was wrong in law to conclude that 118 Marble Lane was her last settled accommodation. The underlying submission is that the accommodation at 118 Marvel Lane was temporary accommodation provided pursuant to the council’s interim duty under section 188 of the 1996 Act while a decision on her original 2012 homeless application was yet to be made. On that basis it is said first that 118 Marvel Lane could not be settled accommodation, so that one has to look back to see whether the applicant was intentionally homeless from her previous accommodation; and secondly, that the council remained under a section 193 duty to secure accommodation for her pursuant to her original application which had never been the subject of a decision.

Patten LJ in refusing permission to appeal said that this ground confuses the duty under section 193 with the conditions which must exist for the duty to arise. He said that in this case the council’s enquiries pursuant to section 184 as to whether the applicant might be homeless were answered by her voluntary acceptance of private sector accommodation. If factually she was content to be provided with such accommodation for the foreseeable future and not simply as temporary accommodation under section 188, it seems to be unrealistic to treat either the section 184 duty or the section 193 duty as continuing to subsist. Patten LJ said that on the evidence the reviewing officer was entitled to conclude that this was what the applicant had indeed chosen.

I would add that the point is covered in paragraphs 23 to 26 of the review decision, which spells out that when housing options were being discussed with the applicant following her original application she voluntarily expressed an interest in being assisted to secure private sector accommodation. This led to her being matched with the property at 118 Marvel Lane; and she entered into a contractual tenancy agreement for that property of her own volition, understanding, so said the decision, that it was provided to her in order to resolve her homelessness and not as temporary accommodation.

The submission made by Mr Johnson is in summary that it is not open to a housing authority to secure private sector accommodation for an applicant as an alternative to fulfilment of its duties under the homelessness provisions of the 1996 Act. He accepts that an applicant may abandon her application as homeless in favour of immediate private sector accommodation secured by the local housing authority but it is submitted that this must be done by the applicant and on the basis of an informed decision, whereas the authority cannot unilaterally bring the application to an end by securing private sector accommodation nor can it merely assume that the homelessness application has been withdrawn.

I confess to being very doubtful about that line of argument. There was no suggestion at the time that the applicant was entering into a contractual tenancy of private accommodation at 118 Marvel Lane by way of the authority securing temporary accommodation pending a decision on her application as homeless. She did not thereafter press for or enquire about a decision on her homeless application. When she left 118 Marvel Lane and after a period of living with her parents, she made a fresh application as homeless rather than suggesting that a decision on her original application was outstanding. All of this fits with the factual finding made by the reviewing officer and could in my view reasonably be said to have amounted to a deemed abandonment or withdrawal of the original application. But I am persuaded, just, that the point is not clear cut; and, having already decided to grant permission to appeal on the first ground, I have come to the view that I should allow the second ground to go through at the same time to a substantive hearing.

Accordingly I grant permission to appeal on both grounds. Time estimate, half a day; constitution, a three-judge court of whom one may be a High Court judge.