ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Mr Recorder Hancock QC
B00LB677
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE PATTEN
and
LORD BRIGGS OF WESTBOURNE
Between :
ADRIAN DOKA | Appellant |
- and - | |
LONDON BOROUGH OF SOUTHWARK | Respondent |
Mr Adrian Marshall Williams (instructed by the Southwark Law Centre ) for the Appellant
Mr Donald Broatch (instructed by the Director of Legal Services of the London Borough of Southwark ) for the Respondent
Hearing date : 26 July 2017
Judgment
Lord Justice Patten :
Mr Doka appeals against an order of Mr Recorder Hancock QC dated 29 April 2016 dismissing his appeal under s.204 of the Housing Act 1996 (“HA 1996”) against an earlier review decision that he was intentionally homeless and was not therefore owed the full housing duty under s.193 HA 1996. It is common ground that Mr Doka is eligible for assistance, homeless and has a priority need but if the respondent authority is satisfied that he became homeless intentionally then s.193 has no application (see s.193(1)) and its housing duty is limited to securing accommodation for him for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: see s.190 HA 1996. We were told that in a typical case this is likely to be for a period of 28 days.
In deciding whether an applicant in the position of Mr Doka is owed the full s.193 duty or the more restricted duty under s.190 the local housing authority must consider whether his current homelessness was caused by his having become intentionally homeless. This involves in the first place a consideration of whether the applicant satisfies the test of intentional homelessness set out in s.191 HA 1996: i.e. that he has deliberately done or failed to do anything in consequence of which he has ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.
But even if this test is satisfied the authority must also consider and determine whether his current homelessness was caused by that intentional conduct. The need to establish a continuing causal connection between the earlier conduct and the applicant’s present state of homelessness therefore carries with it the possibility that in some cases a supervening event will break the relevant chain of causation. In Haile v London Borough of Waltham Forest [2015] UKSC 34: [2015] AC 1471 the Supreme Court applied the classic “but for” test to such circumstances. Could it be said that the applicant would have been homeless in any event at the date of the inquiry regardless of his earlier conduct? Lord Reed JSC said at [28]-[29] and [63]:
“[28] The second causal question has to be understood as being implicit if absurd consequences are to be avoided. The elderly man in my example, who is homeless after his care home closes, is undoubtedly someone who, in his student days, did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy. The causal question arising under s 191(1) must therefore be answered in the affirmative. But, if that were the only causal question which arose, the legislation would have absurd results. Absurdity is avoided by asking the second question, which arises under s 193(1): the authority are satisfied that he is homeless following the closure of the home, but cannot be satisfied that he became homeless intentionally, since his homelessness was not caused by his holding rowdy parties in his student digs. He would have been homeless following the closure of the home in any event.
[29] On the other hand, in my example of the person who intentionally gave up his accommodation and moved into temporary accommodation and waited to be evicted, both questions would be answered in the affirmative. He deliberately did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy. The causal test under s 191(1) is therefore satisfied, even though he did not at that stage become homeless. When he did become homeless, following his eviction from the temporary accommodation, he could properly be said under s 193(1) to have become homeless intentionally, since the effective cause of his homelessness was his previous intentional conduct, but for which he would not be homeless. That conduct was a “but for” cause of his homelessness, and no unconnected event had intervened to break the causal connection.
….
[63] These decisions are consistent with what was said about causation in Din, leaving out of account the aspect of Lord Lowry's reasoning which was disapproved in Awua. As counsel for the Appellant submitted, the decision whether an Applicant is intentionally homeless depends on the cause of the homelessness existing at the date of the decision. That has to be determined having regard to all relevant circumstances and bearing in mind the purposes of the legislation. As I have indicated, a later event constituting an involuntary cause of homelessness can be regarded as superseding the Applicant's earlier deliberate conduct, where in view of the later event it cannot reasonably be said that, but for the Applicant's deliberate conduct, he or she would not have become homeless. Where, however, the deliberate conduct remains a “but for” cause of the homelessness, and the question is whether the chain of causation should nevertheless be regarded as having been interrupted by some other event, the question will be whether the proximate cause of the homelessness is an event which is unconnected to the Applicant's own earlier conduct, and in the absence of which homelessness would probably not have occurred.”
One circumstance which has generally been regarded as capable of breaking the causal link between existing homelessness and the historic event of intentional homelessness is where the applicant obtains what is referred to as settled accommodation. In Din v Wandsworth London Borough Council [1983] 1 AC 657, [1981] 3 All ER 881 Lord Wilberforce referred with approval to a passage in the unreported judgment of Ackner LJ in the Court of appeal who said:
“To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as a ‘settled residence’, as opposed to what from the outset is known (as in Dyson' s case [1980] 1 WLR 1205) to be only temporary accommodation. What amounts to ‘a settled residence’ is a question of fact and degree depending upon the circumstances of each individual case.”
This passage was also approved by the House of Lords in R v London Borough of Brent ex parte Awua [1996] 1 AC 55 at p. 69 where Lord Hoffmann said:
“The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. This jurisprudence is well-established (it was approved by this House in Din's case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. It is the importation of the distinction between settled and temporary accommodation into other questions arising under Part III of the Act which seems to me unwarranted.”
The facts of the present case can be summarised quite shortly. On 30 November 2010 Mr Doka was evicted from a secure tenancy of premises at 11 Laburnum Close, London, SE15 on account of rent arrears. Although originally an issue, it is now accepted that he was homeless intentionally as a result. In December 2010 he was allowed by his former employer, Mr Theobald, to stay at his home at 37 Capel Place, Dartford. Although this was originally intended to be a temporary arrangement, after about 3 weeks Mr Theobald agreed to provide what he described as “full-time accommodation” in the form of the room which had been occupied by Mr Theobald’s son who was by then at university. The information provided by Mr Doka’s solicitor on which the Council relied in making its decision was that Mr Theobald had taken a fatherly interest in Mr Doka’s welfare which led him to provide the accommodation in the form of his son’s room. Mr Doka was told that he would be able to live there until the son finished at university which would be a period of 2-3 years but he also agreed to stay elsewhere with friends on the occasional nights when Mr Theobald’s son returned home and needed to use his room. Mr Doka agreed to pay £500 per month for the use of the room.
In December 2012 Mr Doka was asked to leave because Mr Theobald’s son had returned from university and various refurbishment works were to be carried out. Between 2013 and October 2014 Mr Doka stayed with friends until, following the birth of his son, he applied to the respondent authority for housing assistance. The housing authority decided that it owed him only a limited duty because of his earlier intentional homelessness when he was evicted from 11 Laburnum Close. Mr Doka’s solicitors requested a review of the decision and, in representations made to the reviewing officer, argued that 37 Capel Place was settled accommodation which broke the chain of causation between Mr Doka’s present state of homelessness and his eviction from Laburnum Close. On 20 February 2015 the reviewing officer confirmed the original decision that Mr Doka remained intentionally homeless and Mr Doka’s s.204 appeal was dismissed by Mr Recorder Hancock.
Permission for a second appeal was refused on a consideration of the papers by David Richards LJ on the basis that what constitutes settled accommodation is a question of fact and degree and that the reviewing officer was entitled to conclude that Mr Doka’s occupation of his room at 37 Capel Place was always precarious. But I subsequently granted permission for a second appeal following an oral hearing to enable this Court to consider an argument based on its earlier decision in Gilby v City of Westminster [2007] EWCA Civ 604; [2008] HLR 109 where Lightman J (giving the judgment of the court) said at [9]:
“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.”
Mr Doka’s case in short is that two years was on any view a significant period of time and that his accommodation at 37 Capel Place was therefore settled within the meaning given to that phrase in the passage I have cited. But on the s.202 review the Council’s reviewing officer rejected the claim that the room which Mr Doka occupied at 37 Capel Place amounted to settled accommodation. In the decision letter of 20 February 2015 she said:
“11. By your own admission, you stayed elsewhere on these occasions. Therefore, it is evident that you were only occupying Mr Theobald’s son’s room at his and his family’s convenience, when he did not need his room.
12. I have considered whether it could be argued that you willingly gave up your room to help your friend because he had been supportive of you. However, your representatives stated that, “Mr Theobald had a spare room as his son had gone to university and no longer needed the room apart from the occasional overnight visit when our client would stay elsewhere…”. I am of the opinion that this confirms that Mr Theobald’s need of the room for his son’s visits took priority over him allowing you to stay there, rather than you allowing the son to use your room. Therefore, I am not satisfied that your arrangement was a tenancy agreement or that you had exclusive use of a room as submitted by your representatives.
13. Secondly, by your representatives’ own statement, you were fully aware that your residence in Mr Theobald’s property was a temporary arrangement as they stated that “… so our client knew from the start that he would be able to stay for two to three years until his son finished his course”. This confirms that when you moved into 37 Capel Place you were fully aware that this was only ever going to be a temporary arrangement.
14. I fully accept that you resided there for two years and that such a residence period is longer than many private tenants who have an assured shorthold tenancy. I have also closely considered the English Homelessness Code of Guidance 2006 and in particular paragraph 11.12… I fully accept that any accommodation you secured in the private rented sector would provide you with lesser security of tenure than your LBS tenancy. However, considering your circumstances on its own merits, including the fact that you had to give up your room and stay elsewhere when Mr Theobald’s son returned for visits, together with the fact that you were fully aware that you would only be able to stay at 37 Capel Place for a limited period, I remain satisfied that it was not settled accommodation The situation was precarious in nature and in my view it is clear that at any point in time you would have to either leave or make arrangements to stay elsewhere if required. This has proven to be the case.
15. Your representatives stated that your accommodation at 37 Capel Place was settled and that you lost your accommodation because you were asked to leave due to the fact that Mr Theobald’s son returned from university. However, they have confirmed that you were fully aware that this would be the case when you moved into the accommodation. Therefore, it was only ever envisaged to be a temporary arrangement for 2-3 years maximum, as it happened it was only 2 years.”
It cannot be said that the reviewing officer failed to consider the material facts or left some relevant fact out of account. The paragraphs of the decision letter quoted above contain an account of the arrangements at 37 Capel Place based on the information provided by Mr Doka’s solicitors. The legal challenge to the decision is that the officer has made what amounts to an error of law in treating the accommodation as a temporary arrangement notwithstanding that it had both an expected and an actual duration of at least two years. Although it is conceded by Mr Marshall Williams for Mr Doka that the arrangements were based on a licence rather than any form of tenancy of the room, that, he submits, is not a disqualifying factor as the decision in Gilby makes plain and the reviewing officer has failed to apply the correct test of settled accommodation by asking herself whether, at the time the arrangement between Mr Theobald and Mr Doka was made, there were solid grounds for the reasonable expectation that the occupation of the room would continue for a significant period of time. Two years was, he says, on any view such a significant period.
The distinction in the decided cases between “settled” and “temporary” accommodation which was approved by the House of Lords in Din was formulated at a time when it was still possible to be granted a Rent Act protected tenancy. That remained the case until January 1989 after which it was no longer possible to create a protected tenancy and any new tenancy of residential premises was an assured tenancy under the Housing Act 1988 (“HA 1988”). In the case of Rent Act protected tenancies, the tenant enjoyed a high degree of security of tenure. The landlord could only obtain an order for possession by making out one of the mandatory grounds or by offering suitable alternative accommodation in the form of a protected tenancy of other premises. In practice, a protected or statutory tenancy gave the tenant an indefinite right to remain and was easily contrasted with a licence which conferred no security of tenure at all.
The Housing Act 1980 (“HA 1980”) marked the first stage in the abolition of Rent Act control by introducing protected shorthold tenancies which had many of the normal incidents of a protected tenancy except the right to pass the tenancy to statutory successors.
Protected shorthold tenancies were phased out under the HA 1988 which introduced assured and assured shorthold tenancies. Since February 1997 (with one or two immaterial exceptions) every assured tenancy is an assured shorthold tenancy. Such tenancies are typically for a period of six months but, unless renewed, enable the landlord to obtain possession on mandatory grounds by giving notice at or prior to the grant of the tenancy that possession may be recovered on those grounds. In such cases the Court has no discretion but to make the order.
Tenants who are made homeless intentionally by the loss of their available accommodation will necessarily find themselves looking for privately rented accommodation. In the post-Rent Act world this is unlikely to be offered on anything but a six-month assured shorthold tenancy with no security of tenure and any realistic prospect of a longer period of accommodation will depend upon the landlord’s willingness to renew the tenancy. In cases subsequent to Din the courts have attempted to address this difficulty whilst preserving the jurisprudential distinction between settled and temporary accommodation. This has been achieved by concentrating on the period of the interim accommodation as contemplated at the commencement of the licence or tenancy and the prospect of continuation. The phrase “temporary” accommodation has been treated as meaning precarious rather than simply limited in time. In R v Hackney LBC ex Ajayi (1998) 30 HLR 473 the applicant had lived with friends for a period of 20 months and this had been arranged, she said, for an indefinite period but Dyson J (as he then was) held (at pp 477-478) that the local housing authority had been entitled to conclude that although indefinite, the arrangement was nevertheless precarious:
“The phrase “settled accommodation” is an ordinary English expression and not a term of art. When the respondent referred in the decision letter to the accommodation being of a temporary nature, it was using the word “temporary” in the sense of precarious (see the penultimate paragraph of the letter). In so doing it adopted an approach similar to that suggested in ex parte Graham.
It impliedly concluded that the licence to occupy would not continue for years. It may even be that the statement that the accommodation was not an open-ended licence was an express conclusion to that effect. The authority did not misunderstand what was meant by “settled accommodation” nor is there substance in the submission that it failed to take into account material considerations. The reference to ex parte Shah is, in my judgment, misconceived. That case was concerned with the meaning of “ordinarily resident” in section 1 of the Education Act 1962. I see no warrant for importing the interpretation of different statutory words into the consideration of what is meant by “settled accommodation” in homeless housing legislation.
As for the applicant's assertion that the accommodation at both addresses was to be for an indefinite period, I have already summarised the relevant facts. It is true that at the outset the duration of the accommodation was uncertain, but having regard to all the circumstances, the respondent was entitled to regard it as precarious. I have in mind, in particular, the fact that the licensors in each case were not members of the applicant's family or close friends. And the arrangement at 54, Landcroft Road could come to an end, as it did, merely because the parties tired of each other, and that at 14, Portlet Court, merely because the applicant had become pregnant.”
In R v Croydon LBC ex. P. Graham (1993) 26 HLR 286 the appellant had decided not to renew her existing assured shorthold tenancy and instead moved to a room in a house owned by a school friend which she was required to vacate on one month’s notice. The crucial consideration in the view of the Court of Appeal was whether the move put her in what Sir Thomas Bingham MR described as a precarious and vulnerable position in terms of security of tenure compared with the position she previously enjoyed under the assured shorthold tenancy.
Knight v Vale RBC [2003] EWCA Civ 1258; [2004] HLR 9 was a case where the appellant had become intentionally homeless from property she occupied under an assured tenancy but then obtained a six month assured shorthold tenancy of other premises. At the inception of the new tenancy she was, however, informed by the landlord that the tenancy would not be renewed at the end of the six month term and she was in fact required to leave at the end of that period. The Court of Appeal held that the six month tenancy did not amount to settled accommodation because it was always clear that it was a temporary arrangement with no prospect of continuance beyond the initial term. Sir Martin Nourse said at (page 115):
“24. In our judgment the occupation by a tenant of accommodation let on a six months’ assured shorthold tenancy is capable of constituting settled accommodation for the purposes of breaking a chain of causation from past intentional homelessness. We do not think it is right, just because six months is the minimum period required, to assume that occupation for such a period is likely to be temporary rather than settled. Indeed, we agree with counsel for Miss Knight that tenure equivalent to the prevailing tenure in the private rented sector is likely to be settled rather than temporary. From their letter of 4th November 2002 that appears to have been the view of the Council in the present case.
25. What we cannot accept is that the occupation by a tenant of accommodation let on a six months’ assured shorthold tenancy is, as a matter of law, always sufficient to constitute settled accommodation. The question remains one of fact and degree to be determined by the local authority in the circumstances of the particular case. While we accept that the existence of an assured shorthold tenancy will normally be a significant pointer to the accommodation being settled, we reject the primary submission of counsel for Miss Knight.
In Huda v Redbridge LBC [2016] HLR 30 the appellant had refused an offer of accommodation but pending the determination of a further application for assistance he was placed until further notice in private accommodation obtained through a letting agency. A year later the council refused his application on the basis that he had become intentionally homeless but failed, due to an oversight, to take steps to terminate his licence of the accommodation he had been given. Over two years later the council realised what had happened and took steps to evict him. The appellant then made a new application for housing assistance relying on the 3 year licence as constituting settled accommodation. The council’s reviewing officer took the view that although the licence had subsisted for a significant period of time, that had been unintentional and that the appellant’s right to occupy the accommodation had always been precarious. His appeal was dismissed both in the County Court and in the Court of Appeal.
This and some of the earlier authorities confirm that the length of the period of accommodation relied on is not conclusive as to whether it should be treated as settled in the sense described in Din and the subsequent cases in which the test has been applied. What the applicant needs to establish is a period of occupation under either a licence or a tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed.
Mr Doka will never be able to regain the degree of security provided by a secure tenancy. But the decision of this Court in Knight v Vale is, I think, authority that a new assured tenancy with a prospect of renewal for an indefinite period in the future will ordinarily constitute settled accommodation. In such circumstances it could not be said (adopting the test in Haile) that the applicant was merely postponing the inevitable by moving into what was always going to be temporary accommodation.
In this case, however, Mr Doka was able to rely on the generosity and friendship of Mr Theobald in order to put a roof over his head. Although that arrangement undoubtedly had a commercial aspect to it in that Mr Doka paid a not insignificant rent for his use of the room, the reviewing officer was in my view entitled to conclude that it was at all times a precarious arrangement in that it had a finite duration and was obviously one in which Mr Theobald would give priority to his son’s need for the room. Mr Doka was required (and was agreeable) to vacate the room for the days when the son came home and when he ended his studies at university. This was an intermittent licence under which the prospect of continuation was always uncertain.
I sympathise with the view that at one level it may seem odd that a more or less unbroken period of accommodation for 2 years should be regarded as less settled than an assured tenancy which, even with some intervening renewals, may not ultimately exceed that period. But the reviewing officer in my judgment correctly applied the authorities as they stand and I do not accept that her decision can be said to disclose an error of law.
I would therefore dismiss this appeal.
Lord Briggs of Westbourne :
I agree.