Muzzafer Cifci v London Borough of Sutton

What is at issue in this appeal is whether the respondent, the London Borough of Sutton (“Sutton”), was entitled to conclude that it was under no duty to rehouse the appellant, Mr Muzzafer Cifci, because he had become homeless intentionally.

Until September 2018, Mr Cifci lived with his wife and children in privately rented accommodation. Having been required by his landlord to leave those premises, Mr Cifci applied to the London Borough of Bromley (“Bromley”) for help. He was provided with temporary accommodation at 22 Church Road in Croydon (“22 Church Road”).

On 8 November 2021, however, Crest Manor Limited (“Crest Manor”), which was managing 22 Church Road, informed Mr Cifci in a letter that the landlord had notified it of the landlord’s intention to take back the property and that it was therefore serving him with a notice to vacate it on or before 15 January 2022. Writing to Mr Cifci a few days later, Bromley said that “[u]nfortunately, there isn’t much that can be done when this happens” but that he would be made an alternative offer of accommodation before the notice period expired.

On the morning of Friday 14 January 2022, Bromley emailed Mr Cifci with an offer of accommodation at 357 Brighton Road in Croydon (“357 Brighton Road”). Bromley said in the email, “we need to move you to alternative Temporary accommodation as your present lease has come to an end”. The attached offer letter noted that Bromley had accepted that it owed Mr Cifci the “main” housing duty under section 193(2) of the Housing Act 1996 (“the 1996 Act”). It was explained that Bromley expected Mr Cifci to accept the offer by 5 pm that day. The letter also contained this warning:

“Please note that if you refuse this offer this Council will have discharged its duty to rehouse you as a homeless applicant, and no further offers of any sort will be made. If you are currently occupying accommodation provided by the council you will be given notice to leave and will have to make your own housing arrangements.”

Mr Cifci appears to have visited 357 Brighton Road soon after receiving the offer and to have expressed unhappiness about it. Responding to such concerns in an email at 2.50 pm on 14 January 2022, Bromley pointed out that Mr Cifci had the right to request a review of suitability under section 202 of the 1996 Act and added:

“We strongly [advise] you to accept this offer, even if you intend to request a review, as this will ensure that you have somewhere suitable to live if your review is unsuccessful. If you refuse this offer and a review is unsuccessful you will be left in a tricky situation as we will have discharged the duty that we owe you. If you accept this property and your review is successful we will offer you an alternative property as soon as possible.”

Early on Monday 17 January 2022, Bromley gave Mr Cifci a new deadline of 2 pm that day to accept the accommodation at 357 Brighton Road. However, Mr Cifci confirmed that he did not wish to move to 357 Brighton Road. At 3.44 pm on 17 January, therefore, Bromley sent Mr Cifci an email in which this was said:

“As you have not accepted this Offer of Accommodation and you have not met the deadline of 2pm today that I have previously given to your household, this Offer will now be withdrawn and you will not receive any further offers.

As stated in your Offer letter, you are still entitled to a Review, however your present accommodation may now be cancelled.

I have passed your file to our manager to be assessed for a discharge of Duty of your Housing case. We will … contact you regarding the outcome.”

Later that afternoon, Bromley sent Mr Cifci a letter confirming that it considered its duty to rehouse Mr Cifci had ended pursuant to section 193(5) of the 1996 Act (Footnote: ¹) as a result of his failure to accept the Brighton Road offer. Both the letter and the email to which it was attached included this:

“Ordinarily, in light of a refusal of suitable temporary accommodation we would give our clients 28 days to vacate their current property. However, this will not be possible in your case as your lease end deadline to vacate the property has already passed. You should immediately vacate the property and make your own arrangements. If you are not going to be able to do this, please advise me by emailing housingsolutions@bromley.gov.uk and we shall explore interim options for your family that will expire no later than 28 days from the date of this letter (14/02/2022).”

In an email sent to Bromley on 18 January 2022, Mr Cifci responded that he and his family were “not able to vacate our property immediately as we have nowhere to go!” He asked Bromley to offer “more suitable housing”.

On 19 January 2022 Bromley offered Mr Cifci temporary accommodation at 226A High Street in Sutton (“226A High Street”). The email to which the offer was attached explained:

“Please be aware that you will need to vacate this property [i.e. 226A High Street] on 14/02/2022, with your last night being 13/02/2022, and you will not receive any additional offers of accommodation after this date. You should use this time to make your own housing arrangements.”

Mr Cifci accepted this offer and he and his family seem to have moved to 226A High Street that same day. On 26 January 2022, Bromley requested that Crest Manor cancel the accommodation which Mr Cifci had had at 22 Church Road.

On 14 February 2022, Bromley reiterated to Mr Cifci that he must vacate 226A High Street. Mr Cifci asked if he and his family could stay longer, but he was told that they could not. On 15 February 2022, Bromley confirmed to Mr Cifci that it would “not be extending the placement any further”.

On 13 April 2022, Mr Cifci applied to Sutton for assistance. In a letter dated 22 October 2022, Sutton told Mr Cifci that it was satisfied that he was homeless, was eligible for assistance and had a priority need. However, it also said that it had concluded that Mr Cifci had made himself homeless intentionally and so it did not have a duty to rehouse him. Mr Cifci requested a review of that decision under section 202 of the 1996 Act, but in a letter dated 18 April 2024 (“the Review Decision”) the review officer upheld the earlier decision.

The review officer summarised his conclusions as follows in the Review Decision:

“I will, therefore, outline my conclusion to the case having taken into account all the information I have before me.

(a)

Did the applicant deliberately do something or fail to do something?

In my consideration, the deliberate act was ceasing to occupy 22 Church Road, Croydon. You should have accepted the property at 357 Brighton Road, Croydon CR2 6ER and requested a review of suitability. If you had, you would not have become homeless as Bromley Council had a duty to keep you accommodated until you were in a settled home.

(b)

Did the applicant cease to occupy accommodation?

You ceased to occupy 22 Church Road, Croydon and Bromley Council in consequence discharged its duty towards you following your refusal of accommodation at 357 Brighton Road.

(c)

Would a property have been available for the applicant to occupy?

22 Church Road was provided to you by Bromley Council in accordance with their s.193 duty towards you, it did not cease to be available as a result of the landlord’s notice. You would have continued to enjoy rights of occupation. Possession of this property was not recovered … pursuant to a court order.

The landlord did not take possession proceedings and evict you in consequence of the notice. Rather, you left in consequence of the duty being discharged following your refusal of an offer of accommodation by Bromley Council and thereafter being provided with discretionary accommodation elsewhere by Bromley Council in accordance with its practice to give reasonable notice.

22 Church Road, Croydon remained available and reasonable for your continued occupation and Bromley Council offered 357 Brighton Road in its continued performance of that duty. Their duty to continue to accommodate you under s.193 ceased when you refused the offer and they discharged their s.193 duty to accommodate you, and but for that refusal you would not have become homeless. It is clear that if you had not left 22 Church Road, Croydon and accepted accommodation pending a review on the offer of accommodation you would not be homeless today.

22 Church Road, Croydon did not cease to be available as a result of the landlord’s notice. Your loss of accommodation was by no means inevitable as Bromley Council had an ongoing duty to make you a reasonable offer of accommodation and until they no longer had a duty towards you. This meant you had to be housed until you were offered permanent accommodation.

(d)

Was it reasonable for the applicant to occupy the offered accommodation?

I have concluded 22 Church Road, Croydon was suitable for you to have continued to occupy until the landlord obtained possession with a court order, this accommodation would have been reasonable in the short term. You should have requested accommodation pending a review. The accommodation you had was reasonable and you should have allowed due process of the reviews process to follow its natural course, if you had stuck with this I am satisfied that Bromley Council would make you a suitable offer of alternative to pursue their S.193 duty.”

Earlier in the Review Decision, the review officer had said:

“It was this decision of yours to refuse this offer [i.e. of Brighton Road] which was the operative cause of you becoming homeless, as Bromley Council would have a continuing duty to secure you with suitable accommodation. The landlord’s notice from 22 Church Road, Croydon was not the substantive cause of your homelessness because the landlord never acted on it by proceeding with a possession claim or seeking to recover the property through the courts. 22 Church Road, Croydon continued to be available for your occupation until such time as Bromley Council offered you a reasonable alternative of suitable accommodation in performance of its duty. Bromley Council did make you an offer of 357 Brighton Road. Had you accepted the offer and moved in and sought a review and followed the due process you would not be experiencing this current episode of homelessness.

22 Church Road, Croydon did not cease to be available as a result of the landlord’s notice and you would have continued to have rights of occupation. Possession of 22 Church Road, Croydon was not recovered through … a court order. The principal definition of homelessness itself, set out in s.175 is that, the Applicant has available accommodation which he “occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another to recover possession” – s.175(1)(c). The rights of other to recover possession are restricted by s.3 PEA.

The landlord did not take possession proceedings and evict you in consequence of the notice. Rather, you left in consequence of the duty being discharged following your refusal of an offer of Bromley Council accommodation and thereafter being provided with discretionary accommodation elsewhere by Bromley Council in accordance with its practice to give reasonable notice.

22 Church Road, Croydon remained available and reasonable for your continued occupation until Bromley Council offered 357 Brighton Road in performance of that duty. It ceased to be available when you refused the offer, and but for that refusal, you would not have become homeless.”

Mr Cifci appealed to the County Court pursuant to section 204 of the 1996 Act, but without success. On 2 December 2024, His Honour Judge Holmes, sitting in the County Court at Central London, dismissed the appeal.

Mr Cifci now challenges Judge Holmes’ decision in this Court.

The grounds of appeal are as follows:

The “main” housing duty is imposed by section 193(2) of the 1996 Act and requires a local housing authority to “secure that accommodation is available for occupation by the applicant”. By section 193(1), the section applies where an authority is satisfied that an applicant is homeless, is eligible for assistance and has a priority need provided that the authority is “not satisfied that the applicant became homeless intentionally”.

Section 191 of the 1996 Act explains when a person is to be considered to have become homeless intentionally. Section 191(1) provides:

“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”

Taken together, sections 191(1) and 193(1) of the 1996 Act call for a two-stage inquiry. In Haile v Waltham Forest London Borough Council [2015] UKSC 34, [2015] AC 1471 (“Haile”), Lord Reed (with whom Baroness Hale and Lord Clarke agreed) explained in paragraph 25:

“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.”

Where an applicant has ceased to occupy accommodation such as is described in section 191(1) of the 1996 Act in consequence of a deliberate act or omission, homelessness need not follow at once for him to be treated as intentionally homeless. “[D]eliberately ceasing to occupy accommodation A, which it would have been reasonable to continue to occupy, can result in intentional homelessness when one is later obliged to leave temporary accommodation B or C” (to use words of Lord Hoffmann, with whom Lords Goff, Jauncey, Slynn and Taylor agreed, in R v Brent London Borough Council, ex p Awua [1996] 1 AC 55 (“Awua”), at 70). In Haile, Lord Reed noted in paragraph 24 that “section 193(1) cannot be concerned only with the reason for the loss of accommodation which the applicant occupied immediately before he became homeless”. He went on to say in paragraph 25 that the position is instead that section 193(1):

“must … 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” (emphasis added in each instance).

When assessing whether current homelessness has been caused by previous conduct within the scope of section 191(1) of the 1996 Act, it is not only “but for” causation which is relevant. The fact that an applicant would not now be homeless “but for” his earlier behaviour will not necessarily mean that he is now to be considered intentionally homeless. Something which happened in the interval between departure from the accommodation which it would have been reasonable for the applicant to continue to occupy and the present homelessness may have broken the chain of causation. In Haile, Lord Reed explained in paragraph 57 that “deliberate conduct in giving up earlier accommodation may not be regarded as the cause of current homelessness … where homelessness would probably not have occurred in the absence of some other, more proximate, cause, which arose independently of the earlier conduct: where, as it is sometimes put, there is a novus actus interveniens”. In the same vein, Lord Reed said in paragraph 67:

“the causal connection between an applicant’s current homelessness and her earlier conduct will be interrupted by a subsequent event where in the light of that event, applying the words of Brightman LJ in Dyson [1980] 1 WLR 1205, 1215, it cannot reasonably be said of the applicant that ‘if she had not done that deliberate act she would not have become homeless’.”

However, actual events fall to be distinguished from hypothetical ones. If an applicant in fact ceased to occupy accommodation within the description given in section 191(1) of the 1996 Act in consequence of his deliberately doing or failing to do something, it does not matter that he might have had to leave the accommodation anyway.

Din v Wandsworth London Borough Council [1983] 1 AC 657 (“Din”) and Haile are relevant in this context. In Din,the appellants had left accommodation in August 1979 when a distress warrant had been served and, in December 1979, had applied to Wandsworth for accommodation under the Housing (Homeless Persons) Act 1977. The landlord would probably have evicted them by then, but they were nevertheless held by the House of Lords (Lords Russell and Bridge dissenting) to have become homeless intentionally. Lord Lowry said at 676-677:

“The appellants say that their homelessness in December was due not to their leaving Trinity Road in August but to the fact that they would have been evicted by December; it seems clear, however, that the cause of their being homeless in December was their leaving in August: if they had not left then, the cause of their homelessness in December would have been their later eviction (which did not occur), but to say that they would have become homeless from a cause which did not occur does not extinguish the actual cause.”

Reassessing Din in Haile, Lord Reed said in paragraph 59:

“Din [1983] 1 AC 657 concerned a relatively narrow issue, namely the interpretation of the definition of ‘[becoming] homeless intentionally’, in section 17(1) of the 1977 Act. The House of Lords’ decision that the elements of that definition were to be considered as at the time when the applicant ceased to occupy accommodation meeting the requirements of the definition appears to me to have been correct. The decision as to the tempus inspiciendum remains good law in relation to the corresponding definition in section 191(1) of the 1996 Act. It also remains true that, if the definition is satisfied as at that point in time, it is immaterial under section 191(1) to consider subsequent hypothetical events.”

In paragraph 79, Lord Neuberger, who expressed agreement with Lord Reed, commented that in the case before the Supreme Court there was “an undeniable later event which would have caused the applicant to become homeless anyway, namely the birth of her daughter, whereas in Din there was no such later causative event, merely a possibility that one might well have occurred”.

When determining whether an applicant ceased to occupy accommodation in consequence of his conduct, the “ultimate question is: what is the real or effective cause of the homelessness?” (Chishimba v Kensington and Chelsea Royal London Borough Council [2013] EWCA Civ 786, [2014] PTSR 49 (“Chishimba”), at paragraph 7, per Lewison LJ, with whom Richards and Elias LJJ agreed). That question “should be answered in a practical common sense way and it is more than a ‘but for’ test” (Chishimba, paragraph 7, per Lewison LJ). “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” (Chishimba, paragraph 8, per Lewison LJ).

A case which featured prominently in argument was Godson v Enfield London Borough Council [2019] EWCA Civ 486, [2020] HLR 1 (“Godson”). In that case, Enfield accepted that it owed Mr Godson the main housing duty and provided him with accommodation at 21c Bury Street. On 25 July 2013, Enfield offered Mr Godson a tenancy at 28B Church Street, but he refused the offer. Enfield then notified him that its duty had come to an end and on 21 January 2014 he was evicted from 21c Bury Street. He later made a further application to Enfield, but it was rejected on the basis that he was intentionally homeless and that decision was upheld on review.

The Court of Appeal held that the review officer had been entitled to conclude that the refusal of the tenancy at 28B Church Street was the effective cause of Mr Godson’s homelessness and, hence, that he was intentionally homeless. Lewison LJ (with whom I agreed) said this:

“50

When Mr Godson was required to leave 21c Bury Street he was threatened with homelessness; and when he actually left he became homeless: R. v Brent LBC Ex p. Awua at 68. His homelessness was not interrupted by temporary accommodation in bed and breakfast accommodation at the Railway Inn. He therefore remained homeless; and had been homeless ever since he left 21c Bury Street. Indeed, the foundation of Mr Godson’s second application to Enfield was that he was homeless; despite having a roof over his head at the Railway Inn. So, the next question for the reviewing officer was: what caused him to lose the accommodation at 21c Bury Street, thereby becoming homeless? The immediate or most proximate cause may be the effective cause; but that need not be so: William v Wandsworth LBC [2006] EWCA Civ 535; [2006] H.L.R. 42 at [17], approving R. (Ajayi) v Hackney LBC (1998) 30 H.L.R. 473.

51

In this case the immediate cause of Mr Godson’s homelessness was the council’s decision to evict him from 21c Bury Street. But causation does not necessarily stop there. It is necessary to go on to ask: what caused the council to take that step? The answer is: because Mr Godson deliberately refused the temporary accommodation at 28B Church Street.

52

I do not consider that the reviewing officer can be faulted in concluding that the operative reason why Mr Godson was living in bed and breakfast accommodation at the Railway Inn was the result of his refusal of the tenancy at 28B Church Street. The reviewing officer was, in my judgment, entitled to conclude that that refusal was the effective cause of Mr Godson’s homelessness. Since the refusal was a deliberate act, he was intentionally homeless.

53

Indeed, in my judgment this case is on all fours with Awua in which the applicant was living in temporary accommodation and refused an offer of a tenancy of a flat. In consequence of her refusal of that offer, she lost the temporary accommodation. On the making of a fresh application under s.193(9) to a different housing authority, she was held to have become intentionally homeless.

54

Moreover, it would produce an inconsistency in the scheme of Pt 7 if an expressly provided way in which an authority can discharge its duty under s.193(2) is rendered ineffective as a result of a refusal by an applicant of an offer of accommodation that complies with the statutory scheme. That is unlikely to have been Parliament’s intention: compare Muse v Brent LBC at [40].”

In Awua, to which Lewison LJ referred, Tower Hamlets accepted that it owed the applicant the main housing duty and made accommodation available to her at Flat B, 10 Clarendon Road. In March 1992, Tower Hamlets arranged for the Peabody Trust to offer the applicant a flat at 10, Jellicoe House, but she refused this. Tower Hamlets’ duty having thus been discharged, the applicant was given notice to quit Flat B, 10 Clarendon Road and a possession order was subsequently made against her. The applicant then applied to Brent, but it considered her to have become homeless intentionally.

Explaining why the applicant’s appeal should be dismissed, Lord Hoffmann said at 72-73:

“it seems to me that Brent was entitled to take the view that Miss Awua ceased to occupy Flat B, 10, Clarendon Road in consequence of her having deliberately decided to refuse the offer of 10, Jellicoe House. Flat B, 10, Clarendon Road was accommodation available for her occupation and which it would have been reasonable for her to continue to occupy until such time as 10, Jellicoe House was ready for her. [Counsel for Miss Awua] submitted that if she had accepted 10, Jellicoe House, she would have had to leave Flat B, 10, Clarendon Road anyway. It therefore cannot be said that it was reasonable for her to continue to occupy it. But this argument, based on what would hypothetically have happened if she had done something different, is precluded by the decision of this House in Din (Taj) v. Wandsworth London Borough Council [1983] 1 A.C. 657, where Lord Fraser of Tullybelton said, at p. 671:

‘The material question is why he became homeless, not why he is homeless at the date of the inquiry. If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant.’”

Turning to when it is “reasonable for [an applicant] to continue to occupy” accommodation, “a person does not have to be entitled to remain in accommodation indefinitely, or for any particular period of time, for it to be ‘reasonable for him to continue to occupy’ it” (Kyle v Coventry City Council [2023] EWCA Civ 1360, [2024] HLR 7, at paragraph 42(i)). Further, when considering whether an applicant became homeless intentionally, “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” (Denton v Southwark London Borough Council [2007] EWCA Civ 623, [2008] HLR 11 (“Denton”), at paragraph 25, per Arden LJ) (emphasis in original). “In determining whether it is reasonable for a person to have continued to occupy his previous home, the court must disregard the deliberate conduct or course of conduct that led him to leave that home” (Denton, at paragraph 2(iv), per Arden LJ).

Finally, it should be stressed that a question as to whether an applicant became homeless intentionally has to be answered by reference to the specific requirements of section 191(1) of the 1996 Act, not by asking in a more abstract way whether the applicant’s homelessness was brought about by deliberate conduct on his part or, more specifically, by considering whether the applicant could have taken up alternative accommodation. In Din, Lord Lowry observed at 679:

“No one really becomes homeless or threatened with homelessness intentionally; the word is a convenient label to describe the result of acting or failing to act as described in section 17.”

Lord Lowry was referring to section 17 of the Housing (Homeless Persons) Act 1977, to which section 191 of the 1996 Act corresponds.

In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 (“Holmes-Moorhouse”), in a passage endorsed by the Supreme Court in Poshteh v Kensington and Chelsea Royal London Borough Council [2017] UKSC 36, [2017] AC 624, Lord Neuberger said this about review decisions at paragraph 50:

“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.”

On the other hand, “[i]t must be clear from the decision that proper consideration has been given to the relevant matters required by the Act and the Code [i.e. the Homelessness Code of Guidance for Local Authorities]” (Nzolameso v Westminster City Council [2015] UKSC 22, [2015] PTSR 549, at paragraph 32, per Baroness Hale, with whom Lords Clarke, Reed, Hughes and Toulson agreed).

I am very grateful to Newey LJ for setting out the applicable principles so clearly. I agree with his reasoning and conclusions and would just wish to add a few comments on Ground 1.

As Newey LJ has explained, it is clear that at least one of the operative causes of Mr Cifci’s current homelessness was his failure to accept the offer of 357 Brighton Road. The question is whether the review officer was also entitled to conclude that Mr Cifci ceased to occupy 22 Church Road “in consequence” of that failure. That is a separate question, reflecting the two stage enquiry referred to in Haile at [25].

Mr Burton’s submission appears deceptively simple and attractive: Mr Cifci obviously left 22 Church Road in consequence of the landlord’s notice, with which Bromley told him that he had to comply. But as Newey LJ has explained it is necessary to look at the actual circumstances in which Mr Cifci ceased to occupy 22 Church Road. He only left 22 Church Road when 226A High Street was made available, and he left to move to that property. Like the eviction in Godson, 226A High Street was only made available because of Mr Cifci’s deliberate action, namely the failure to accept the offer of 357 Brighton Road and the fact that, as a result, Mr Cifci had nowhere else to go.

This conclusion is reinforced by a consideration of the logical consequences of Mr Burton’s submissions. As he candidly accepted (withdrawing a concession to the opposite effect below) it would have made no difference if the most recent homelessness application had been made to Bromley and not to Sutton. It would follow that in any circumstance where temporary accommodation needs to be vacated for some external reason (whether landlord-related, or for example for substantial repairs to be made), alternative accommodation which the local authority considers to be suitable could be turned down but the normal consequence of cessation of duty under s193(5) of the 1996 Act could be frustrated through a further homelessness application. That result cannot have been intended.

I agree with both judgments, and with the dismissal of the appeal.