Peter Court v Fenland District Council

This is an appeal brought pursuant to the provisions of section 204 of part 7 of the Housing Act 1996 (HA 1996). I am very grateful to both Ms Smith and Mr Colville for their helpful and comprehensive written and oral submissions with respect to this appeal which raises, amongst other things, causation and the PSED.

The Appellant occupied property at 9 The Hill, Christchurch, Wisbech PE14 9NB (“9 The Hill”) with his wife, Beverley, pursuant to an assured tenancy granted to them both by Clarion Housing Association (“the assured tenancy agreement”).

The Appellant was convicted of sexual offending which resulted in a custodial sentence which commenced on 8 June 2022. Beverley had been diagnosed with a terminal illness and died on 19 October 2022. The Appellant gave notice to quit on 22 December 2022 and the assured tenancy came to an end on 15 January 2023. In his notice surrendering the tenancy, the Appellant notified Clarion Housing that he was unable to continue making payments of rent due to his wife passing away and the length of time left on his prison sentence.

“I am writing regarding the above account. I am currently serving a prison sentence in HMP Oakwood. My prison number is (…). I entered prison on [08/06/2022] and my expected day of release is [07/10/2024].

My wife passed away on 19/10/2022 and due to this and the length of time I have left on my prison sentence I am unable to continue making the payment of rent and therefore I would unfortunately need to terminate my rental agreement and request that in regards to the remaining outstanding balance you consider the following;

I have no savings and whilst I am in prison I am unable to make any repayments to you. Due to my situation, I am requesting that you consider writing the debt off in full. If you are not able to do this, then please could you put any enforcement action on hold and freeze any interest and charges where applied whilst I remain in custody.”

While in prison, the Appellant was diagnosed as suffering from an intradural tumour in his thoracic spine which resulted in him requiring surgery. He was paralyzed from the chest down and diagnosed as a permanent paraplegic on 22 November 2023 due to a spinal cord injury secondary to the intradural tumour in the thoracic spine. He is a wheelchair user.

On 13 August 2024, the Probation Service submitted a Duty to Refer for the Appellant as a consequence of him being due to be released from prison on 7 October 2024 when he would need assistance. His last settled accommodation was 9 The Hill.

A multi-agency review was undertaken on the Appellant on 4 September 2024. The Appellant had hoped that he could live with his daughter, who lived at 8 The Hill, but he had been informed that could not happen. He raised concerns about where he would live following release and was aware that Cambridgeshire would connect with him for CAS3 Housing, “a new tier of community accommodation, providing basic, transitional housing for up to 84 nights for prison leavers who are at risk of homelessness” which could place out of Cambridgeshire and anywhere to Skegness. The recommendation was that he be offered generic ground floor accommodation with disabled shower and toilet facilities and grab rails - if appropriate. It was further recommended that he be assessed urgently by the relevant Adult Social Care Team. It was noted that he preferred to reside in March, Cambridgeshire and that his daughter’s emotional and physical support (if possible) was of great importance to him.

The probation service provided a summary of the risk information relating to the Appellant by email dated 12 September 2024. This set out that children were at risk, primarily female children aged 5 – 14 years ...

“The nature of the risk is sexual harm through sexual assaults. There is also the risk of emotional and psychological harm through being the victim of acts of voyeurism and being filmed without consent as well as being the victim of child sexual exploitation/abuse through view of illegal images of children. [The Appellant] has sexually assaulted … as well as filming her without her knowledge/consent. In addition, he has been convicted of viewing illegal images of children.

Risk to children assessed as high… [The Applicant] has engaged in sexual offending behaviour over a period of several years …

[The Appellant] has no previous convictions. However, it is noted that the index offences took place over a period of several years (2014-2019) which could indicate a developing pattern of sexual offending behaviour.

Due to the nature of [the Appellant’s] offences, any accommodation would require prior approval by Probation in liaison with MOSOVO police.”

The input from the probation team on property suitability included that the property (at 9 The Hill) would not be suitable as it is near to a school “…this has been deemed against licence of probation as school vicinity and property also not suitable for care/wheelchair needs.” On 20 September 2024, the Appellant’s probation officer confirmed that he would not be able to return to his previous address:

“I have spoken with [the Appellant] this afternoon who reports that he held a joint tenancy with his wife (who passed away whilst he was in custody). The property was therefore let to other tenants. This accommodation would not have been approved for [the Appellant] to return to on release – it was assessed as unsuitable due to it being located next to a school.”

In a video call with the Appellant from HMP Oakwood on 3 October 2024 it was reported that the property at 9 The Hill “may not have been suitable if could have returned 2-3 high steps no ramp – steps had hand rails. Was permanently diagnosed with paraplegic 22.11.23 was in hospital 3 months came out end of Feb 2024. Property in Christchurch had level access shower but would not have been able to use wheelchair indoors…”

By letter dated 3 October 2024, the Respondent wrote to the Appellant to inform him of the section 184 HA 1996 decision to accept the section 189B(2) duty to help resolve his homelessness.

Having been informed by the Appellant of the factual background to his housing situation, on 17 December 2024 the Respondent sent to him a “minded to” letter setting out that the Respondent was minded to make a decision that the Appellant was intentionally homeless, and that before the final decision was made that he had the opportunity to challenge or comment on any evidence or interim conclusion. The preliminary decision was that the Appellant was intentionally homeless from 9 The Hill. The “minded to” letter set out that the action (or actions) that the decision maker believed the Appellant deliberately did or failed to do was:

“You committed a criminal offence and was given a custodial sentence. This lead to you being unable to make rent payments and requesting that your tenancy is terminated.”

On 28 January 2025, the Respondent notified the Appellant that the final decision had been made on the homelessness application that he was intentionally homeless and that the duty to help resolve his homelessness had come to an end. Under the heading “the enquiries I have made and taken into account in making my decision that you are intentionally homeless” is included “any medical information, reports or representations” and “guidance from the courts, including the Supreme Court in the leading decision of Haile v Waltham Forest.”

The deliberate action relied upon as giving rise to the loss of the accommodation at 9 The Hill is set out, as in the “minded to” letter dated 17 December 2024, that he had pleaded guilty to a criminal offence which commenced on 8 June 2022 and that he was released on 7 October 2024 and that during this period the tenancy was terminated at his request. It was accepted that he had terminated the tenancy because of the death of his wife, the period of time he had left to service in prison and being unable to pay the rent and then the letter sets out these conclusions:

“I understand your reasoning for relinquishing your tenancy however if you had not been convicted of a criminal offence and been incarcerated, there would have been no reason to have terminated it.”

I have considered your representations and I conclude that your homelessness began at the point of being convicted of a criminal offence and going to prison. You terminating the tenancy is in consequence of your imprisonment.

I am satisfied that your deliberate action was the effective cause of your losing your accommodation and the loss of it would reasonably have been regarded at the time as a likely consequence of this action. To clarify, your deliberate conduct to some appreciable measure made the loss of your accommodation, or put another way there was a real or serious possibility that your deliberate act resulted in the loss of your accommodation.”

The decision letter further provided that the accommodation which the Appellant was intentionally homeless from was reasonable to continue to occupy (subsection e) :

“I am satisfied that it would have been reasonable for you to continue to occupy at the point in time immediately before the deliberate action you took which I have decided led to the loss of your home.

You advise that you had to have surgery whilst in prison due to a intradural tumour in your thoracic spine. This resulted in your being paralyzed from the chest down. You were diagnosed as a permanent paraplegic on 22 November 2023. You claimed that the property would not have been suitable for you on release from prison as you are now a wheelchair user. The property is a bungalow so steps could have been taken to make any adaptations that were necessary to make it more wheelchair accessible.

However, the tenancy was terminated prior to your surgery so this is not a relevant factor to consider.

The property has also been consider[ed] unsuitable by probation as it is near a school. There it is the nature of your offence that has rendered the property unsuitable”

and, in answer to the issue of whether the Appellant would have become homeless anyway by the date of the decision for another reason that does not meet the definition of a deliberate act:

“I am satisfied after considering the facts as at today’s date that it cannot be said that you would have been homeless anyway from your accommodation for an issue unrelated to the deliberate act as per the test set by the Supreme Court in the decision of Haile v Waltham Forest 2015.”

The probation officer wrote to the housing options officer pointing out that surrendering the tenancy after the death of his wife while still in custody was to avoid the accumulation of rent arrears which “would be the advice given by any accommodation professional to someone in his position rather than wait for the landlord to seek possession…”. On 5 February 2025, the Respondent acknowledged the request for a review and on 22 April 2025 section 202 review submissions were made by Lawstop on behalf of the Appellant including that:.

“… in November 2023, our client suffered a cancerous tumour on his spinal cord, which has led to him being a permanent paraplegic and wheelchair user… As a result of this, he has housing needs for all future accommodation, which include accessible washing facilities, such as a walk-in-shower with an appropriate wet seating, a raised toilet and potentially lowered worktops. Our client’s housing file data input, accepts that his previous property is unlikely to have been suitable even if he could have returned… It is not an accurate reflection of the law to state that the suitability of the accommodation is not relevant because our client had given up his tenancy prior to his medical conditions, and the failure to even consider whether the property would be suitable for our client now, in light of his medical conditions, is an error of law which should overturn the original decision. ”

That review decision of the Respondent was promulgated on 13 May 2025 confirming the decision that the Appellant was intentionally homeless. That decision led to the filing of the section 204 appeal within the 21-day time limit on 20 May 2025.

The notice of appeal raises three grounds of appeal:

There is clear authority, cited in most (if not all) part 7 homelessness appeals, then when considering a challenge to a local housing authority’s decision, the court must adopt a “benevolent approach” and not take too technical a view of the language used, search for inconsistencies and “adopt a nit-picking approach, when confronted with an appeal against a review decision: see Lord Neuberger in Homes-Moorehouse v Richard upon Thames London Borough Council [2986] 484.

It is for the authority to make those enquiries it considers to be appropriate (see R v Kensington & Chelsea RLBC ex p Bayani (1990) 22 HLR 406), and any challenge to the enquiries made would need to establish that the authority had been acting with Wednesbury unreasonableness (R v Nottingham City Council ex p Costello (1989) 21 HLR 301.

In considering the decision of the Respondent under challenge, I adopt a benevolent and non “nit-picking” approach - recognising that it is for the decision-making authority to decide which enquiries are appropriate.

The Appellant focussed on ground 2 of the grounds of appeal on the basis that there had been a failure by the decision maker to consider the “intervening event” of the appellant becoming paraplegic and a wheelchair user as a consequence of the spinal cord injury secondary to the intradural tumour in the thoracic spine. I have no doubt that had the Appellant not suffered from a cancerous growth on his spine which led to surgical intervention and paralysis, then the act of giving up his tenancy as a consequence of the term of custody being too long for him to keep up with the rental payments after the death of his wife, would have been an intentional act of homelessness: see Stewart v Lambeth LBC [2002] EWCA Civ 753, where the intentional act was the supplying of class A drugs leading to imprisonment and loss of accommodation due to non-payment of rent.

The relevant parts of the section 184 decision letter dated 28 January 2025 provide as follows:

“I understand your reasoning for relinquishing your tenancy however if you had not been convicted of a criminal offence and been incarcerated, there would have been no reason to have terminated it.

I have considered your representations and I conclude that your homelessness began at the point of being convicted of a criminal offence and going to prison. You terminating the tenancy is in consequence to your imprisonment.

…

e)

That the accommodation I have decided that you are intentionally homeless from was reasonable to continue to occupy.

I am satisfied that at the time of the deliberate action you took (detailed in b above) the accommodation you lived in was reasonable for you and your household to have continued to occupy.

I am satisfied that it would have been reasonable for you to continue to occupy at the point in time immediately before the deliberate action you took which I have decided led to the loss of your home.

You advise that you had to have surgery whilst in prison due to a intradural tumour in your thoracic spin. This resulted in you being paralyzed from the chest down. You were diagnosed as a permanent paraplegic on 22 November 2023. You claimed that the property would not have been suitable for you on release from prison as you are now a wheelchair user. The property is a bungalow so steps could have been taken to make any adaptations that were necessary to make it more wheelchair accessible.

However the tenancy was terminated prior to your surgery so this is not a relevant factor to consider.”

The Respondent, in the review letter dated 13 May 2025, contended that the surgery and consequential paraplegia, did not break the chain of causation as the property “could be suitable for you now, because it could be adapted to include a ramp …”. The Respondent denied that there was a failure to make any, or any sufficient, inquiries and that it would have been a hypothetical exercise and “pointless and disproportionate since the property could not be suitable for you anyway due to the close proximity of the school and the nature of your offence. Secondly, in tandem with the first point, the nature of your deliberate offence meant that even significant adaptations which would otherwise have rendered the property suitable for your needs, you could not have lived there due to the proximity of the school.”

That, in my judgment, runs contrary to the determination of the Supreme Court in Haile v Waltham Forest with respect to the correct interpretation of the provisions contained in Part 7 of the Housing Act 1996.

Section 193(1) of the Housing Act 1996 provides that where (a) the local housing authority (i) are satisfied that an applicant is homeless and eligible for assistance, and (ii) are not satisfied that the applicant became homeless intentionally, the authority shall secure that accommodation is available for occupation by the applicant (s193(1A)(2)). Consequently, the local housing authority have to be satisfied of three matters: that the applicant is homeless, that he is eligible for assistance, and that he has a priority need. They must also be “not satisfied” that the applicant became homeless intentionally.

As Lord Reed set out in Haile the words “became homeless intentionally” are concerned with the homelessness that the authority has found to exist: “is homeless” and “became homeless” must refer to the same current state of being homeless and it is in relation to the current state of being homeless that the question has to be answered, did the applicant become homeless intentionally. He gave, as an example, the elderly man who is evicted from his care home when it closes “cannot be intended to be denied assistance” merely because, 60 years earlier, he was evicted from his student digs for holding rowdy parties:

“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.”

Lord Reid identified two separate questions which arise concerning causation. The first is the person ceasing to occupy accommodation which he could reasonably have continued occupy must be the consequence of his deliberate act or omission; the second question, under section 193(1) is whether the effective cause of the homelessness is the previous intentional conduct “but for which he would not be homeless”. The court has to consider whether there is an unconnected event which intervenes, breaking the causal connection.

A case referred to in the Supreme Court was R v Camden LBC ex p Aranda [2009] UKHL 36, where the applicant and her husband had left a property in Camden and moved to Columbia, but in Columbia the applicant was deserted by her husband and so she returned to Camden and requested assistance. It was held that the causal connection between giving up the accommodation and homelessness was broken by her husband’s desertion. Another authority referred to was R v Hackney LBC ex p Ajayi [1997] 30 HLR 473, where the applicant left settled accommodation in Nigeria to travel to the UK where she lived in short-term temporary accommodation. When she became pregnant she was given notice to leave. She challenged the authority’s determination that she was intentionally homeless because of leaving the accommodation in Nigeria and argued that the true cause of her homelessness was her pregnancy. After reviewing the authorities Dyson J (as he then was) said that the fundamental question was whether there was a continuous chain of causation between the loss of the last settled accommodation and the present state of homelessness. In this particular case, Dyson J held that the authority had been entitled to conclude that the effective cause was her action in leaving Nigeria.

The conclusion of Lord Reed in Haile was that 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, it cannot reasonably be said of the applicant that “if she had not done that deliberate act she would not have become homeless.”

In my judgment, the same applies here. The consequence of the Appellant’s paraplegia, and consequently being a wheelchair user, is that it cannot be said, in relation to his earlier offending behaviour, that if he had not carried out those deliberate acts of offending he would not have become homeless. There has been an intervening operative event which the local authority has failed to recognise.

The Respondent contends that the accommodation could have been adapted to allow the appellant to reside at 9 The Hill. However, while it is correct that the suitability of accommodation is not to be judged exclusively by reference to the condition of the accommodation at the time of the offer, and the assessment of its suitability can and should also take into account any adaptations and alterations that are proposed to be made (see Boreh v Ealing LBC [2008] EWCA Civ 1176), such proposals “would have to be the subject of assurances that the applicant could fairly regard as certain, binding and enforceable … it will be a matter of fact and degree as to whether any such proposed adaptations and alterations will be such as to make it suitable.”

In this matter there was no enquiry as to what was needed to make it suitable, whether that work could be done, how it would be done or who would pay for it. None of this was considered because the respondent had determined that it was “pointless and disproportionate” to engage with occupational health and Clarion Housing, the provider. The respondent cannot properly say that there was sufficient certainty that alterations could be made to make the property suitable. I am satisfied that it is arguable that the physical situation of the appellant in this matter is such that the accommodation is not suitable. In those circumstances, the respondent must reconsider whether the intervening event of the paraplegia and wheelchair use was such that it cannot be said that “but for” his unlawful acts he would not be homeless.

I find that ground 2 is made out. The decision of the Respondent is to be quashed and remitted for reconsideration by the local authority.

I do not find that ground 1 of the appeal is made out. The Appellant contends that there has been a breach of regulation 7(2) of the Homelessness (Reviews Procedure, etc) Regulations 2018 SI No. 223 (reg. 7(2)) by reason of failing to serve a “minded to” letter on the Applicant.

Reg. 7(2) provides that:

“If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant:

(a)

that the reviewer is so minded and the reasons why; and

(b)

that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”

Lewison LJ in NJ v Wandsworth LBC [2014] HLR 6 dealt with, what was then reg. 8(2), as follows:

It is a matter for the reviewing officer to determine whether there is something deficient in the original decision. The question whether or not to invoke the reg. 7(2) procedure is a matter for the reviewing officer and can only be challenged on public law grounds. The Respondent decided that “there was nothing lacking in the original decision and no irregularity or deficiency, which might otherwise warrant a minded to find letter…”

While, in my judgment, the Respondent erred as a matter of law with respect to there being a break in the chain of causation, the original decision clearly set out the issues that needed to be considered, save for it not having an express reference to the PSED under section 149 of the Equality Act 2010 (which I will deal with below).

The reviewing officer considered reg.7(2) and came to a conclusion that there was no deficiency. It cannot realistically be argued that the reviewing officer was Wednesbury unreasonable in the conclusions she reached, it was not a perverse decision. That is a separate matter to whether she was correct in the decision that there was no supervening event that broke the chain of causation.

Ground 1 is therefore not made out.

Ground 3 is that the Respondent acted in breach of the PSED. This ground is not made out. The PSED and section 149 of the Equality Act 2010 was not expressly laid out, but it did not need be.

Section 149 PSED provides that:

The Appellant’s disability was expressly considered by the Respondent and “due regard” was had to the PSED. The aim of the PSED is to bring equality issues into the main-stream; the duty is a matter of substance rather than of form and it requires that the decision maker be aware of the duty to have due regard to the relevant matters; the concept of due regard is to be distinguished from a requirement to give the PSED considerations specific weight - it is not a duty to achieve a particular result: see Hackney LBC v Haque [2017] EWCA Civ 4. In considering the Appellant’s disability and health issues, the PSED was being complied with the Respondent. There was not a requirement on the reviewing officer to make particular findings about the precise effects of the duty.

For the reasons set out above, neither ground 1 nor ground 3 can succeed. I do find ground 2 made out and the decision that the Appellant is intentionally homeless from 9 The Hill must be quashed and remitted back for a reconsideration by the Respondent.

Counsel for the parties have helpfully agreed a draft order which I approve.