Bullale v City of Westminster Council

This is an appeal against a decision of HHJ Freeland QC sitting in the County Court at the Mayor’s and City of London Court on 12 December 2019 whereby he dismissed an appeal against a decision of a review officer of the respondent, the City of Westminster, dated 23 August 2019. The review officer upheld a decision of 18 June 2019 that the appellant was intentionally homeless within the meaning of section 191 of the Housing Act 1996 (“the 1996 Act”).

In brief, the appellant was provided by a local authority with temporary accommodation at Seagrove Hostel in November 2015 pursuant to the duties imposed by the 1996 Act. The appellant was offered suitable accommodation but refused it. The appellant was required to vacate Seagrove Hostel in January 2016.

The appellant and her three daughters occupied a one-room studio flat at Bravington Road, London from 19 September 2016 until November 2018 at which date the landlord recovered possession. The appellant applied to the respondent for assistance under Part VII of the 1996 Act as she was homeless.

The respondent decided that the appellant had become intentionally homeless when she left Seagrove Hostel in January 2016. It also decided that the period of accommodation at Bravington Road was not settled accommodation capable of breaking the causal connection between the earlier intentional homelessness in 2016 and the homelessness that arose in November 2018. A review officer confirmed that decision. The sole issue is whether the respondent’s review officer erred in law in reaching that decision.

The appellant’s household consists of herself and her three daughters now aged 26, 21 and 17. The family had lived in private rented accommodation in Fulham. They became homeless in November 2015 when the landlord recovered possession of the property in order to sell it.

The local authority, the London Borough of Hammersmith and Fulham

The appellant spent a few months living with friends. On 19 September 2016, she was granted an assured shorthold tenancy by a private landlord of Flat 7 Bravington Road in London (which was in the area of Westminster City Council). The term was for 1 year at a rent of £302.33 a week. The property comprised a single room, with a kitchen area, and containing bunk beds and a mattress. There was a toilet and shower room shared with other residents (there being 10 such flats at the property). The appellant lived there initially with her two younger daughters and was joined by her eldest daughter. Hammersmith and Fulham provided financial assistance to pay the deposit. The rent was paid from housing benefit and discretionary payments made by the local authority.

On 30 September 2016, the appellant went to the respondent’s housing department and asked for assistance because she was living in a bedsit. She explained that she had been living in Seagrove Hostel but had been evicted when she refused alternative accommodation in Barking. She was advised that it was not in her best interests to make an application for assistance under the homelessness legislation because she had refused an offer of suitable accommodation previously. She was also advised that she would not be eligible to register for housing via the housing register as she had not been resident in the respondent’s area for three years.

On 13 October 2016, the appellant signed a tenancy agreement for Flat 9, Bravington Road. That agreement was to last until 18 September 2017 with a rent of £302.33 a week. It was again a single room, with a kitchen area, but was larger than Flat 7. There was a toilet and shower room used only by the appellant and her family. The rent was paid, as before, from housing benefit and discretionary payments. The decision letter refers to Flat 7 but, in fact, from 13 October 2016 the appellant and her three daughters occupied Flat 9.

The appellant contends that the landlord knew at the outset that the flat would be occupied by her and her three daughters. The review officer in her decision accepted that. There is a letter dated 13 February 2017 from the director of the landlord stating that the property had been let on the understanding that the appellant and one daughter only would live there. The letter stated that the appellant and her three daughters now lived there and the property had become severely overcrowded. The letter said either two daughters would have to leave or the premises would have to be vacated. We were told a notice seeking possession was served in June 2017. In any event, the landlord did not seek to recover the property at that stage. The appellant and her three daughters continued to live there. The tenancy continued as a periodic tenancy after the end of the agreed term.

In February 2018, the landlord served notice seeking possession. In May 2018, he issued proceedings in the county court seeking possession. In November 2018, a possession order was granted and the appellant and her daughters had to leave Flat 9. They had been in Flat 9 for two years and one month and had spent a further month in Flat 7 before that.

The appellant applied for assistance to the respondent under Part VII of the 1996 Act. By letter dated 18 June 2019, the respondent decided that the appellant had become intentionally homeless in 2016. That occurred when the appellant ceased to be able to occupy the accommodation at Seagrove Hostel because she refused to accept an offer of suitable accommodation. The respondent decided that the accommodation at Flat 7 (in fact Flat 9) Bravington Road was not settled accommodation as it was overcrowded and could not be seen as suitable.

The appellant requested a review of that decision under section 202 of the 1996 Act. Representations were made on her behalf by solicitors. The review officer confirmed

Part VII of the 1996 Act deals with the differing duties owed to those who are homeless or threatened with homelessness. There is an initial duty owed to all eligible persons who are homeless to take reasonable steps to help such persons secure that accommodation becomes available for them for a specified period: see section 189B(2) of the 1996 Act. That duty comes to an end after 56 days (or earlier if certain specified circumstances exist and the local housing authority give notice bringing the duty to an end). Thereafter, different duties apply depending, amongst other things, on whether the authority is satisfied that the person is homeless intentionally.

The local housing authority are under a duty to secure that accommodation is available if they are satisfied that an eligible person is homeless, has a priority need and is not intentionally homeless. The material provisions are contained in section 193 of the 1996 Act which provide that:

the local housing authority—

the authority are also satisfied that the applicant has a priority need, and

the authority's duty to the applicant under section 189B(2) has come to an end.

Section 191 of the 1996 Act defines when a person become homeless intentionally.

The authority owes a more limited duty to those who became intentionally homeless. In such cases section 190 of the 1996 Act provides so far as material that:

secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.”

The issue in the present case concerns the relationship between events giving rise to two separate incidents, or occasions, of homelessness. In particular, the question is: in what circumstances will a period of accommodation break the causal connection between the earlier intentional homelessness and the current homelessness?

First, the case law recognises that the question is whether, in relation to the current state of homelessness, the applicant became homeless intentionally. There are, however, circumstances where but for the applicant’s earlier deliberate act giving rise to the earlier period of homelessness, the applicant would not have become homeless on the current occasion. That appears from the following passages of the judgment of Lord Reed, with whom Baroness Hale and Lord Clarke agreed and with whose reasons Lord Neuberger agreed, in Haile v Waltham Forest LBC [2015] A.C. 1471:

Secondly, one of the ways in which the causal connection can be broken is if the applicant has obtained settled, in the sense of non-temporary accommodation, following the earlier homelessness. What amounts to such settled or non-temporary accommodation is a question of fact and degree having regard to all the circumstances of the individual case bearing in mind the purpose of the legislation.

That was recognised by Ackner L.J., as he then was, in the Court of Appeal in Din v Wandsworth London Borough Council, unreported, where he said:

That approach was cited with approval by Lord Hoffmann, with whom the other Law Lords agreed, in R v Brent London Borough Council ex p. Awua [1995] 1 A.C. 55 at 69b-d and by the Court of Appeal in Knight v Vale Royal Borough Council [2004] H.L.R. 9 at para. 20.

Thirdly, the factors that may be relevant include the basis on which the accommodation is occupied (whether it is occupied under a lease or a licence), the expectations of the parties as to the period of occupation, whether the arrangement is a commercial one or one between family members or friends, its affordability, whether the accommodation is overcrowded, the context in which the person concerned took the accommodation (in particular whether it was done with a view to a subsequent application for accommodation) and any other relevant factor.

The case law gives a number of examples of how local authorities, and courts reviewing decisions, have considered these factors. By way of example only, the grant of an assured shorthold tenancy of six months or more, which is currently the prevailing tenure in the private sector, is likely to be settled rather than temporary, accommodation. Other factors, however, such as the expectations of the parties as the outset, may indicate that it was temporary, not settled, accommodation, such as where the parties expressly agreed at the outset that the tenancy would not be renewed as the landlord would wish to sell the property at that time. See Knight v Vale Royal Borough Council [2003] H.L.R. 9 at paragraphs 12 and 24-26. A local authority was also entitled to reach the conclusion that a six month shorthold tenancy was not settled accommodation, in circumstances where the accommodation was overcrowded, was not affordable and the context in which the applicant entered the tenancy was to enable her to re-apply for accommodation from the local authority. On that combination of factors, the local authority was entitled to conclude that the accommodation was not settled: see Mohammed v Westminster City Council [2005] H.L.R. 47, per Wilson J, as he then was at paragraph 20, Rix LJ at paragraphs 22 to 23, and Tuckey LJ at paragraph 29 who agreed with the reasons given in both judgments.

Fourthly, in assessing whether accommodation is settled it is necessary to have regard to all relevant circumstances “bearing in mind the purposes of the legislation”. The legislative purpose is to prevent persons who, having become intentionally homeless, would by obtaining temporary accommodation obtain priority in the provision of housing to which they are not entitled (see per Lord Reed in Haile v Waltham Forest London Borough Council [2015] A.C. 1471 at paragraphs 61 and 22). As Simon Brown J, as he then was, expressed it in R v London Borough of Merton ex p. Ruffle (1998) 21 H.L.R. 361 at page 366:

Fifthly, the task of this court is to determine whether the review officer erred in law, or reached a decision that was flawed on public law grounds, rather than considering whether the judge below had erred (see Danesh v Kensington & Chelsea Royal London Borough Council [2007] 1 W.L.R. 69 at paragraph 30). In that regard, the observations of Lord Neuberger in Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] 1 W.L.R. 413 ought to be borne in mind. As Lord Neuberger observed at paragraph 48 of his judgment, a court ought not to adopt an

Finally, for completeness, it is necessary to consider the decision of this Court in Doka v Southwark London Borough Council [2017] H.L.R. 786 to which both parties referred. The Court held that Mr Doka did not have settled accommodation in circumstances where he was allowed to stay for two years, for payment, at his former employer’s house whilst that person’s son was away at university on the basis that Mr Doka gave up the room when the son came home and would vacate the property when the son completed his studies. The occupation was pursuant to “an intermittent licence under which the prospect of continuation was always uncertain” (per Patten LJ at paragraph 20). Given the facts of that case, the decision reflects the established case law and there is nothing to suggest that the decision itself is wrong.

Both parties drew attention to the terms upon which the Supreme Court refused permission to appeal. The Supreme Court considered that the applicable principles were authoritatively established in the cases of Din v Wandsworth London Borough Council and Haile v Waltham Forest London Borough Council and this was not a case where they needed to be reviewed “even though there may be errors in the reasoning in the Court of Appeal, which should not be treated as authoritative”.

This is not a case where it is necessary to consider the status of a decision of the Court of Appeal in circumstances where permission to appeal is refused in those terms for this reason. In Doka, Patten LJ, with whom Lord Briggs agreed, said that:

In my judgment, the ratio of the decision is contained in the first part of that sentence, that is, that the person must establish a period of occupation which is likely to continue for a significant or indefinite period. That approach is consistent with the existing case law of the Supreme Court and of this Court. The ultimate question is whether the causal link between the earlier and the later periods of homelessness has been broken. One situation where that may occur is where there has been a period of settled, or non-temporary accommodation after the earlier homelessness. Whether that is the case is a question of fact and degree to be determined having regard to all the facts of the case and bearing in mind the legislative purpose. The reference in the second part of the sentence to whether the applicant’s position was more precarious than it was previously is a description of the consequences on the facts of that case of applying the established approach. I do not read the judgment as requiring the court to carry out some kind of comparison of the precariousness of the earlier and the later accommodation in order to determine if the causal connection between the two has been broken. That does not form part of the ratio of the decision. Both parties submit, and I agree, that the observations of the Supreme Court were directed at that part of the judgment. In the circumstances, as that element of the reasoning does not form part of the ratio, it is not binding. It is not necessary to consider what the status of the observations would be if they were part of the ratio of the decision.

Ms Davies, who appeared with Mr Bano, for the appellant, submitted that the review officer did not adopt the correct approach of deciding whether as a matter of fact and degree, having regard to all relevant circumstances, the accommodation at Bravington Road was settled accommodation. Rather, the reviewing officer looked at one factor only, namely the overcrowding, and decided that the accommodation was not settled because the overcrowding made it unsuitable for occupation. Ms Davies submitted that the review officer did not have regard to a number of other factors such as the tenancy, the length of occupation, the fact that a deposit had been paid, that the accommodation was affordable and that it was a commercial relationship not a case of staying temporarily with friends or family. Further, while overcrowding was a relevant factor if it indicated the accommodation was only temporary, it would not necessarily indicate that. Here the review officer accepted that the landlord and the appellant knew and agreed at the outset that the accommodation would be overcrowded. That fact did not prevent them entering a tenancy agreement for a year with the tenancy continuing as a periodic tenancy thereafter. In any event, the landlord clearly knew about, and acquiesced, in the flat being used for the appellant and the three daughters from February 2017 and did not take steps to issue for a further year. In either of those scenarios, the fact that the accommodation was overcrowded was not inconsistent with it being settled, or non-temporary, accommodation.

Mr Peacock, who appeared with Ms Robins, for the respondent submitted that the review officer identified the correct test in her decision. The review officer was entitled to focus on the overcrowding in the present case as that was the critical factor in deciding whether the accommodation was settled. The review officer would have been aware that the property was let on an assured shorthold tenancy and was aware and referred to the period of time for which the accommodation was in fact occupied by the appellant. The review officer was entitled, nonetheless, to regard the overcrowding as the critical factor here. The flat was a studio flat, or one room, in which four people (two adults and two teenagers) were living. It was inevitable, given the overcrowding, that the appellant would have been evicted and the arrangement was doomed from the start. Consequently, Mr Peacock submitted, the review officer was entitled to conclude the accommodation was temporary, not settled, and did not break the causal connection with the earlier intentional homelessness.

First, on a fair reading of the decision letter, it is clear that the critical factor so far as the review officer was concerned was that the studio flat was overcrowded. The review officer considered that the accommodation was unsuitable for occupation because it was overcrowded and it was for that reason that she considered the accommodation was not settled. That appears from paragraphs 12 and 13 of the decision letter set out above.

The review officer has not considered all the relevant facts to determine whether, as a matter of fact and degree, and bearing in mind the purpose of the legislation, the accommodation at Bravington Road was in fact a settled arrangement not a temporary one. The review officer does not refer to the nature or length of the tenancy of 9 Bravington Road or the circumstances in which the tenancy was granted. There is no reference to the fact that it was a commercial relationship or that a tenancy agreement of just under a year was entered into after it was made clear to the appellant that she would not be eligible for assistance from the authority (and not as a means of enabling her to apply for assistance from the local authority). The review officer does not refer to the fact that the rent was affordable and paid from housing benefit and discretionary assistance.

Secondly, it is not enough simply to identify a potentially relevant factor. It is necessary to identify how that factor is relevant to the question of whether the accommodation is settled or temporary. In the present case, there is no real analysis either of the relevance of the overcrowding on the facts of this case or its relationship with the other factors. On the facts as accepted by the review officer, the landlord, the previous local authority (Hammersmith and Fulham), and the tenant all knew at the outset that the flat would be occupied by four people when the appellant moved in: see paragraph 13 of the decision letter. Hammersmith and Fulham provided a deposit. The rent was paid for out of housing benefit and discretionary payments made by the local authority. I do not accept that in those circumstances, the arrangement was doomed to fail or that the landlord would inevitably have sought to recover possession. It may well be that the accommodation, unsuitable though it was, was the best that the appellant could find for herself and her family, given their limited financial resources and the shortage of accommodation in London. The overcrowding in the flat would not necessarily mean that the accommodation would be temporary.

Thirdly, the review officer does not relate the overcrowding to the other factors to assess whether those other factors mean that, taken overall, the accommodation could properly be seen as temporary or not settled. In paragraph 14, the review officer acknowledges that the appellant spent two years in the property but did not consider that that made the accommodation any more settled. No explanation for that view is given. The review officer says that she cannot have regard to the length of occupation alone but must look at all the facts of her case. That is correct – but she does not, however, refer to any other facts (other than the overcrowding previously referred to). The review officer states that she is aware that it is possible to occupy insecure, unreasonable or temporary accommodation for an extended period of time. That may be correct but does not provide an analysis, or explanation, of why the accommodation in this case was temporary rather than settled. Nor does the review officer consider all the relevant facts, including the tenancy, the length of occupation, the commercial nature of the relationship, and the basis upon which the property was let (i.e. that it was known that all four family members would be living there or, at the very least, that was known from February 2017).

The appeal is allowed.

The order of HHJ Freeland QC dated 12^th December 2019 is set aside.

The Respondent’s review decision dated 23^rd August 2019 is quashed.

The Respondent shall pay the Appellant’s costs of the appeals to the County Court and the Court of Appeal, which shall be subject to detailed assessment if not agreed.

There shall, if necessary, be a detailed assessment of the costs that are payable to the Appellant by the Lord Chancellor pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.