Chishimba v Royal Borough of Kensington and Chelsea

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison,Lord Justice Elias,Lord Justice Richards
Judgment Date25 March 2013
Neutral Citation[2013] EWCA Civ 786
Date25 March 2013
Docket NumberCase No: B5/2012/2657

[2013] EWCA Civ 786

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE

(HIS HONOUR JUDGE BAILEY)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Elias

and

Lord Justice Lewison

Case No: B5/2012/2657

Between:
Chishimba
Appellant
and
Royal Borough of Kensington and Chelsea
Respondent

Mr Jan Luba QC (instructed by Mary Ward Legal Centre) appeared on behalf of the Appellant.

Mr Nicholas Grundy (instructed by Legal Services, Royal Borough of Kensington and Chelsea) appeared on behalf of the Respondent.

Lord Justice Lewison
1

In September 2009 Ms Chishimba presented herself to the Royal Borough of Kensington and Chelsea ("the Council") as homeless. The council decided that she was eligible, homeless and in priority need and that she had not become homeless intentionally. The council thus concluded that it owed her the full housing duty under section 193 of the Housing Act 1996 and granted her a non-secure tenancy of a one-bedroomed flat at 34B Chipperfield House, Sutton Estate, London SW3. However, unknown to the council, Ms Chishimba had been deceitful. She had supported her application to the council with a counterfeit British passport which the council had taken to be genuine. In reality her leave to remain in the United Kingdom was due to expire shortly and she would become an illegal overstayer. As a result of her immigration status at the time she was not in fact eligible for assistance under Part 7 of the Housing Act 1996.

2

Some time later the UK Border Agency discovered the existence of the counterfeit passport, as a result of which Ms Chishimba was prosecuted and sentenced to a suspended term of imprisonment. The UKBA also informed the council in February 2011.

3

Armed with that information the council decided that its housing duty had ended and served her with a notice to quit. The letter, dated 23 June 2011, informing her of that decision, read in its material parts as follows:

"It is my understanding that you are a Namibian national who was granted limited leave to remain that expired on 21 January 2010. You are therefore classed as an overstayer who is ineligible for housing assistance under the Housing Act 1996, Part VII.

As a result of the above, this Authority shall cease to be subject to its duty towards you as defined under section 193(2). Further, this authority is of a view that it has discharged its duty to you in accordance with section 193(6)(a), of Part VII of the Housing Act 1996 that states that

'the duty will cease if the applicant ceases to be eligible for assistance, if his /her immigration status changes.'

As a result of this decision the temporary accommodation at 34B Chipperfield House, Sutton Estate, London SW3 3SA will be terminated via Notice to Quit which will be served on Monday 27 June 2011. Failure to vacate the accommodation within 28 days will result in court proceedings against you for which you will be liable for the court costs."

4

On 5 December 2011 the county court made an order for possession against her. In the meantime, however, three things had happened. First, Ms Chishimba had given birth to a daughter on 11 January 2010. Second, on 21 October 2011, she had been granted leave to remain in the United Kingdom until 2014. The consequence of the grant of leave to remain was that she became eligible for welfare benefits and housing assistance. Third, on 8 November 2011 she reapplied to the council for homelessness assistance. The council rejected her application and, on a review dated 1 June 2012, maintained that rejection. An appeal to the county court was unsuccessful. Ms Chishimba now appeals to this court.

5

The critical paragraphs of the reviewing officer's decision were the following:

"So, I have to decide your last settled accommodation and whether any deliberate action on your part led to the loss of this accommodation. I have also considered whether the accommodation was available to you and whether it was reasonable for you to continue to occupy.

I am satisfied that 34B Chipperfield House, London SW3 3SA was your last settled accommodation. The accommodation was provided for you by this Council in discharge of the duty owed to you under section 193(2) of the Housing Act 1996 Part VII. The accommodation was let to you by this council as temporary accommodation and you signed a non-secure tenancy agreement on 12 June 2009. You occupied this accommodation from 12 June 2009 until it was brought to an end in December 2011 when the courts awarded possession to the Council. I am satisfied that this accommodation would have remained available to you for an indefinite period had you not ceased to become eligible for assistance in June 2011, when your deception, your possession and use of a counterfeit passport was brought to the attention of the Council Housing Needs Section.

I am satisfied that the act that has led to the loss of this accommodation was the fact that you had obtained and used a counterfeit passport to obtain housing, and that this together with the subsequent discovery of your deception has led directly to the loss of your accommodation at 34B Chipperfield House, and consequently your current homelessness. I have considered that the deliberate act was not necessarily done with the intention of causing homelessness. Homelessness must however be a consequence of the act. In your case you argue that you obtained a counterfeit British passport in order to obtain housing, but this same fact has also directly led to the loss of your accommodation.

I have considered that the act that ultimately led to your homelessness arose before you obtained the accommodation. I have considered the test set out in Section 191 of the Act and can find nothing to suggest that the act needs to be contemporaneous or that the act has to have been carried out after occupation of the property. This view is supported by caselaw. In R v LB Barnetex p. Rughooputh (1993) 25 HLR 607 Court of Appeal, the deliberate act was to take out an unaffordable mortgage which is another example of an act that normally takes place prior to obtaining the accommodation, but that will ultimately led to the loss of the accommodation.

I have considered whether the act was deliberate. The act that led to the loss of your accommodation was that you obtained and used a counterfeit passport to obtain housing. You were arrested and charged, and convicted by the Courts of this offence and sentenced to a probation order for two years."

6

Whether a person is intentionally homeless depends on section 191 of the Housing Act 1996. That section provides so far as material:

"(1) 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."

7

If B happens "in consequence of" A then A must play a causative part in the occurrence of B. In the context of section 191 A must be a deliberate act or omission of the applicant. It need not be shown that the applicant deliberately did something for the purpose of getting himself turned out. It is enough that he deliberately did something or omitted to do something which had that consequence R v Salford CC ex p Devenport [1983] 8 HLR 54. The cases show that, where there are potentially multiple causes of a person's homelessness, the decision-maker must carefully evaluate the facts in order to see whether the applicant's homelessness is shown to have been the likely consequence of his deliberate act or omission ( Watchman v Ipswich Borough Council [2007] EWCA Civ 348, [2007] HLR 33). Some times this has been described as the "effective" cause. The ultimate...

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    • Court of Appeal (Civil Division)
    • 21 November 2013
    ...5 In considering the legal framework that applies to this case, I will repeat much of the analysis that I carried out in Chishimba v Kensington and Chelsea RLBC [2013] EWCA Civ 786, [2013] HLR 6 Whether a person is intentionally homeless depends on section 191 of the Housing Act 1996. That......

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