Bullale v City of Westminster Council

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:

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:

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:

“22.

As I have explained, the effect of the requirement in section 193(1), and its statutory predecessors, that the authority must not be satisfied that the applicant became homeless intentionally has caused difficulties of interpretation, linked to difficulties in construing the meaning of “homelessness”. The purpose of the requirement is however not difficult to discern. As was explained by Lord Lowry in Din [1983] 1 AC 657 , 679, and as counsel for the appellant emphasised in the present case, it is designed to prevent “queue jumping” by persons who, by intentionally rendering themselves homeless, would (in the absence of such a provision) obtain a priority in the provision of housing to which they would not otherwise be entitled.

“23.

Consistently with that rationale, it cannot be intended that an applicant is to be disqualified for accommodation if he has ever, at any time in his life, become intentionally homeless. For example, an elderly man who becomes homeless when his care home is closed cannot be intended to be denied assistance merely because, 60 years earlier, he was evicted from his student digs for holding rowdy parties. As counsel for the appellant submitted, the homelessness with which the words “became homeless intentionally” are concerned must be the homelessness which the authority have found to exist: “is homeless” and “became homeless” must refer to the same current state of being homeless. It is therefore in relation to the current state of being homeless that the question has to be answered, did the applicant become homeless intentionally?

“24.

On the other hand, section 193(1) cannot be concerned only with the reason for the loss of accommodation which the applicant occupied immediately before he became homeless. If that were its effect, the legal consequences of becoming homeless intentionally could readily be avoided by obtaining temporary accommodation, so that the applicant ceased for a time to be homeless, and then waiting to be evicted from it, so bringing about a state of homelessness consequent on the involuntary loss of that accommodation. The aim of the provisions relating to intentional homelessness would then be circumvented.

“25.

Section 193(1) must therefore be understood as being concerned with the question whether the applicant's current homelessness has been caused by intentional conduct on his part, 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: either the accommodation which he was occupying immediately before he became homeless, or previous accommodation. Whether the applicant “became homeless intentionally” thus depends in the first place on the application of the definition of “becoming homeless intentionally” in section 191(1) : in short, on whether he deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation meeting the requirements of that provision. If that question is answered in the affirmative, the further question then arises under section 193(1) whether the applicant's current homelessness was caused by that intentional conduct.” and

“63 …. 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.”

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:

“To remove his self-imposed disqualification he must therefore have achieved what can loosely be described as a “settled residence” as opposed to what from the outset is known (as in Dyson’s case [1980] 1 W.L.R. 1205) to be only temporary accommodation. What amounts to ‘a settled residence’ is a matter of fact and degree depending upon the circumstances in each case.”

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:

“Given the grave difficulty of securing settled accommodation, and given too that the clear legislative objective underlying the concept of intentionality—to discourage people from needlessly leaving their accommodation and becoming homeless—is surely sufficiently achieved without too protracted a period of consequential disqualification from re-housing, it is much to be hoped that housing authorities will in general interpret benevolently the character of accommodation secured by applicants after a finding of intentionality, namely as to whether or not it is settled.”

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

“unfair or unrealistic approach” when considering review decisions and should not subject them to the same sort of analysis as would be appropriate when interpreting a contract, a statute or a judgment. He observed that:

“50.

Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.

“51.

Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.”

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:

“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”.

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).

I also agree.

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.