Adrian Doka v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Briggs of Westbourne |
| Judgment Date | 17 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1532 |
| Docket Number | Case No: B5/2015/3662 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2017 |
[2017] EWCA Civ 1532
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Mr Recorder Hancock QC
B00LB677
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
and
Lord Briggs of Westbourne
Case No: B5/2015/3662
Mr Adrian Marshall Williams (instructed by the Southwark Law Centre) for the Appellant
Mr Donald Broatch (instructed by the Director of Legal Services of the London Borough of Southwark) for the Respondent
Hearing date: 26 July 2017
Approved Judgment
Mr Doka appeals against an order of Mr Recorder Hancock QC dated 29 April 2016 dismissing his appeal under s.204 of the Housing Act 1996 ("HA 1996") against an earlier review decision that he was intentionally homeless and was not therefore owed the full housing duty under s.193 HA 1996. It is common ground that Mr Doka is eligible for assistance, homeless and has a priority need but if the respondent authority is satisfied that he became homeless intentionally then s.193 has no application (see s.193(1)) and its housing duty is limited to securing accommodation for him for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: see s.190 HA 1996. We were told that in a typical case this is likely to be for a period of 28 days.
In deciding whether an applicant in the position of Mr Doka is owed the full s.193 duty or the more restricted duty under s.190 the local housing authority must consider whether his current homelessness was caused by his having become intentionally homeless. This involves in the first place a consideration of whether the applicant satisfies the test of intentional homelessness set out in s.191 HA 1996: i.e. that he has deliberately done or failed to do anything in consequence of which he has ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.
But even if this test is satisfied the authority must also consider and determine whether his current homelessness was caused by that intentional conduct. The need to establish a continuing causal connection between the earlier conduct and the applicant's present state of homelessness therefore carries with it the possibility that in some cases a supervening event will break the relevant chain of causation. In Haile v London Borough of Waltham Forest [2015] UKSC 34: [2015] AC 1471 the Supreme Court applied the classic "but for" test to such circumstances. Could it be said that the applicant would have been homeless in any event at the date of the inquiry regardless of his earlier conduct? Lord Reed JSC said at [28]–[29] and [63]:
"[28] The second causal question has to be understood as being implicit if absurd consequences are to be avoided. The elderly man in my example, who is homeless after his care home closes, is undoubtedly someone who, in his student days, did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy. The causal question arising under s 191(1) must therefore be answered in the affirmative. But, if that were the only causal question which arose, the legislation would have absurd results. Absurdity is avoided by asking the second question, which arises under s 193(1): the authority are satisfied that he is homeless following the closure of the home, but cannot be satisfied that he became homeless intentionally, since his homelessness was not caused by his holding rowdy parties in his student digs. He would have been homeless following the closure of the home in any event.
[29] On the other hand, in my example of the person who intentionally gave up his accommodation and moved into temporary accommodation and waited to be evicted, both questions would be answered in the affirmative. He deliberately did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy. The causal test under s 191(1) is therefore satisfied, even though he did not at that stage become homeless. When he did become homeless, following his eviction from the temporary accommodation, he could properly be said under s 193(1) to have become homeless intentionally, since the effective cause of his homelessness was his previous intentional conduct, but for which he would not be homeless. That conduct was a "but for" cause of his homelessness, and no unconnected event had intervened to break the causal connection.
….
[63] These decisions are consistent with what was said about causation in Din, leaving out of account the aspect of Lord Lowry's reasoning which was disapproved in Awua. As counsel for the Appellant submitted, the decision whether an Applicant is intentionally homeless depends on the cause of the homelessness existing at the date of the decision. That has to be determined having regard to all relevant circumstances and bearing in mind the purposes of the legislation. As I have indicated, a later event constituting an involuntary cause of homelessness can be regarded as superseding the Applicant's earlier deliberate conduct, where in view of the later event it cannot reasonably be said that, but for the Applicant's deliberate conduct, he or she would not have become homeless. Where, however, the deliberate conduct remains a "but for" cause of the homelessness, and the question is whether the chain of causation should nevertheless be regarded as having been interrupted by some other event, the question will be whether the proximate cause of the homelessness is an event which is unconnected to the Applicant's own earlier conduct, and in the absence of which homelessness would probably not have occurred."
One circumstance which has generally been regarded as capable of breaking the causal link between existing homelessness and the historic event of intentional homelessness is where the applicant obtains what is referred to as settled accommodation. In Din v Wandsworth London Borough Council [1983] 1 AC 657, [1981] 3 All ER 881 Lord Wilberforce referred with approval to a passage in the unreported judgment of Ackner LJ in the Court of appeal who said:
"To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as a 'settled residence', as opposed to what from the outset is known (as in Dyson's case [1980] 1 WLR 1205) to be only temporary accommodation. What amounts to 'a settled residence' is a question of fact and degree depending upon the circumstances of each individual case."
This passage was also approved by the House of Lords in R v London Borough of Brent ex parte Awua [1996] 1 AC 55 at p. 69 where Lord Hoffmann said:
"The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. This jurisprudence is well-established (it was approved by this House in Din's case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. It is the importation of the distinction between settled and temporary accommodation into other questions arising under Part III of the Act which seems to me unwarranted."
The facts of the present case can be summarised quite shortly. On 30 November 2010 Mr Doka was evicted from a secure tenancy of premises at 11 Laburnum Close, London, SE15 on account of rent arrears. Although originally an issue, it is now accepted that he was homeless intentionally as a result. In December 2010 he was allowed by his former employer, Mr Theobald, to stay at his home at 37 Capel Place, Dartford. Although this was originally intended to be a temporary arrangement, after about 3 weeks Mr Theobald agreed to provide what he described as "full-time accommodation" in the form of the room which had been occupied by Mr Theobald's son who was by then at university. The information provided by Mr Doka's solicitor on which the Council relied in making its decision was that Mr Theobald had taken a fatherly interest in Mr Doka's welfare which led him to provide the accommodation in the form of his son's room. Mr Doka was told that he would be able to live there until the son finished at university which would be a period of 2–3 years but he also agreed to stay elsewhere with friends on the occasional nights when Mr Theobald's son returned home and needed to use his room. Mr Doka agreed to pay £500 per month for the use of the room.
In December 2012 Mr Doka was asked to leave because Mr Theobald's son had returned from university and various refurbishment works were to be carried out. Between 2013 and October 2014 Mr Doka stayed with friends until, following the birth of his son, he applied to the respondent authority for housing assistance. The housing authority decided that it owed him only a limited duty because of his earlier intentional homelessness when he was evicted from 11 Laburnum Close. Mr Doka's solicitors requested a review of the decision and, in representations made to the reviewing officer, argued that 37 Capel Place was settled accommodation which broke the chain of causation between Mr Doka's present state of homelessness and his...
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