O'Connor and Another v Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,Lord Justice Longmore,LORD JUSTICE LONGMORE,Lord Justice Sedley,Lord Justice Waller,Lord Justice Carnwath |
| Judgment Date | 30 March 2004 |
| Neutral Citation | [2004] EWCA Civ 394,[2003] EWCA Civ 1491 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2003/1033,Case No: B2/2003/1033 |
| Date | 30 March 2004 |
[2003] EWCA Civ 1491
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE BEHAR)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
Lord Justice Longmore
B2/2003/1033
B2/2003/1033(A)
MR A ARDEN QC (instructed by Messrs Alan Edwards & Co, London W8 7TH) appeared on behalf of the Applicants
MR B MCGUIRE (instructed by Director of Law and Administration, The Town Hall, Hornton Street, London W8 7NX) appeared on behalf of the Respondent
I will ask Lord Justice Longmore to give a short judgment.
Having heard argument from Mr Arden QC in this matter, I am (contrary to my reaction on the paper application) persuaded that it is appropriate to grant permission. The essential facts are set out in the judgment of Judge Behar in the Wandsworth County Court.
There are broadly two aspects of the case that seem to me to be arguable. First, the question when occupation ceased. Mr Arden says, with some force, that the decision of the housing review officer does not grapple with that. The judge decided that occupation ceased when the eviction order was served for non-payment of rent. There are obviously good grounds for the judge having so decided, but there are arguments that in the light of the events that occurred the cessation of occupation may have been earlier than that.
Second, the language of the letter of the housing review officer does make one wonder whether the assessment of the deliberateness that is required under section 191 was done correctly. The judge took the view that it was deliberate because there was a decision made by Mr and Mrs O'Connor to leave the accommodation in the care of Mr Walton and that was sufficient. Again there is much to be said for that view, but there is also something to be said for the contrary view that the fact that arrangements to pay the rent went wrong does not mean to say that the failure to pay rent was deliberate.
In those circumstances, we think it right that permission should be given. The first point does raise a point of principle and the second point constitutes another reason why we think it right to give permission to appeal.
I agree.
ORDER: Application for permission to appeal granted; application for permission to amend the notice of appeal granted; appeal time estimate of one day; appeal to be heard by a three-judge constitution, one of whom may be a High Court judge; detailed assessment of the applicant's Community Legal Services Funding certificate.
(Order not part of approved judgment)
[2004] EWCA Civ 394
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE BEHAR)
WL306189
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Waller
Lord Justice Sedley and
Lord Justice Carnwath
Case No: B2/2003/1033
Andrew Arden QC and Dominic Preston (instructed by Alan Edwards & Co) for the Appellant
Bryan McGuire (instructed by Director of Law & Administration) for the Respondent
Crown Copyright ©
This appeal concerns the meaning and proper application of s.191 of the Housing Act 1996. The section governs the concept of intentional homelessness, an important element in the system for the protection of people without accommodation.
The appellants, Mr and Mrs O'Connor, were from 1995 tenants of the Notting Hill Housing Trust, a major provider of social housing in London. They held 1A Railway Mews, Ladbroke Grove, on an assured tenancy. They lost their tenancy when a friend whom they had left in charge of the dwelling while they were away in Ireland for family reasons failed to pay the rent or to notify them of the consequent possession proceedings. The local authority refused to provide them with alternative accommodation on the ground that they had become homeless intentionally.
A fuller account of what happened can be taken directly from the judgment of Judge Behar, who in the Wandsworth County Court on 23 April 2003 dismissed the O'Connors' statutory appeal against the council's decision.
"[1] In October 2000, Mr O'Connor, whose father was very ill, went to Ireland. Mrs O'Connor and the appellants' daughter followed in November 2000, when sadly Mr O'Connor's father died.
[2] Mr O'Connor suffers from depression and was particularly affected by his father's death. Arrangements were made for various people to look after and live in the property and to pay rent while the appellants were away. Notting Hill Housing Trust was not informed of the position at that time. The rent fell into arrear. On 15 th August 2001, the Trust obtained a suspended possession order. Mrs O'Connor visited London at about this time. She says that the person then looking after the property, Michael Walton, did not tell her about the possession proceedings. It later emerged that he had failed to forward documents to her in Ireland and had allowed other persons to live at the property.
[3] In about March 2002, the appellants started to make arrangements to return from Ireland to London. In May 2002, Mrs O'Connor came to London and told Notting Hill Housing Trust that Michael Walton had been looking after the property. She also told the Trust's representative that she and her family had not been living there. From about June 2002, Mrs O'Connor made strenuous efforts to sort out problems at the property and to pay off arrears. At one point she obtained access to the property and changed the locks but shortly afterwards she left. The following day Michael Walton broke back into the property.
[4] In August 2002, Mr O'Connor and the daughter of the appellants joined Mrs O'Connor in London staying with friends. Meanwhile the Trust had applied for a warrant of eviction. Despite an attempt to stay the warrant, it was executed against the property on 4 th September 2002. On 5 th September 2002, the appellants applied to the respondents as homeless persons. They were provided with temporary accommodation until the respondents' original decision that they were intentionally homeless.
[5] By the time of the hearing before me on 4 th April 2003, the appellants were no longer homeless. They had acquired a short hold tenancy of premises in Lewisham. In the circumstances the appeal had only limited practical benefit but the appellants wished to pursue it as if they subsequently made a homeless application in Lewisham, that authority could take the earlier decision into account although it would not, of course, be bound by it.
[6] Furthermore, the appellants might some time in the future be referred back to the respondent authority by Lewisham or alternatively might wish to make a direct application to the respondent authority because of their local connections. In such event, an earlier finding of intentional homelessness by the respondents would obviously not be helpful."
In passing, it is right to say that at the time when the O'Connors sought a stay of execution on 4 September 2002 they had reduced the arrears from almost £2,000 to £83. The Housing Trust evidently would not stay its hand, and the district judge appears to have refused a stay of execution on the ground that the O'Connors were now dependent on benefits. I have to say that both decisions seem to me remarkably harsh.
The material provisions of the Housing Act 1996 are these:
Homelessness and threatened homelessness
(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court.
(b) has an express or implied licence to occupy, or
(c) 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 person to recover possession.
(2) A person is also homeless if he has accommodation but –
(a) he cannot secure entry to it, or
(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to, reside in it.
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
Becoming homeless intentionally
(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.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.
Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing...
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