Dyson v Kerrier District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BRIGHTMAN |
| Judgment Date | 27 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0627-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1980 |
[1980] EWCA Civ J0627-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal From Camborne/Redruth County Court
Lord Justice Megaw
Lord Justice Brightman
Sir Patrick Browne (not present)
MR. J. W. BLACK. Q. C. and MR. D. H. FLETCHER (instructed by Messrs. Randle, Thomas & Thomas, Helston, Cornwall London Agents Messrs. Hewitt, Woollacott & Chown - appeared on behalf of the Plaintiff/Appellant.
MR. K. H. T. SCHIEMANN, Q. C. and MR. J. HAINES. (instructed by Mr. P. J. A. Andrews, Kerrier District Council, Council Offices, Camborne, Cornwall) appeared on behalf of the Defendants/Respondents.
The judgment which Lord Justice Brightman is about to deliver is the judgment of the court.
This is an appeal from a decision of His Honour Judge Chope given on 15th October 1979 in the Camborne Redruth County Court. It raises questions under The Housing (Homeless Persons) Act 1977, and in particular section 17. A dispute arose between the Local Authority, the Kerrier District Council, and a homeless person, Miss. Fiona Dyson, as a result of which Miss. Dyson brought an action against the District Council for a declaration that they were bound to secure that accommodation was available for her, and also for damages. The judge. dismissed the action. Miss Dyson appeals.
We turn first to the Act. The long title of the Act states, as its first purpose, that of making further provision as to the functions of local authorities with respect to persons who are homeless or threatened with homelessness. The material sections are 1 to 4, 8 and 17. It is not necessary to read them at length, except section 17, but we will indicate the general scheme of the Act.
Section 1(1) defines a person as "homeless" if he has no accommodation. He is to be treated as having no accommodation if (among other things) there is no accommodation which he is entitled to occupy by virtue of an interest in it or of an order of the Court, or which he has an express or implied licence to occupy. Under subsection (3) a person is "threatened with homelessness" if it is likely that he will become homeless within 28 days. Each of such persons is defined by section 2 as having "a priority need for accommodation" if (among other things) he has a dependent child residing with him.
Section 3 imposes certain preliminary duties on housingauthorities in cases of possible homelessness. A housing authority is defined as a local authority for the purposes of the Housing Act 1957. In the present case the Kerrier District Council are the housing authority. Under section 3, if a person applies to a housing authority for accommodation, the authority are required to make enquiries in order to satisfy themselves first, whether the applicant is homeless or threatened with homelessness, and, if so, whether he has a priority need and whether he became homeless or threatened with homelessness "intentionally".
Upon completion of their enquiries the housing authority have to make certain decisions. If they are satisfied that the applicant is either homeless or threatened with homelessness, duties are imposed upon them under the somewhat complex provisions of section 4. The nature of these duties varies according to whether the authority are satisfied that the applicant is homeless or is threatened with homelessness, whether they are satisfied that he has a priority need, and whether they are satisfied that he did not become homeless or threatened with homelessness "intentionally". The section, in fact, deals with four categories of applicants who are homeless or threatened with homelessness, although the section is not drafted by reference to categories. Category 1, the applicant who has no priority need; category 2, the applicant who has a priority need but becomes threatened with homelessness "intentionally"; in both these cases the duty of the authority is confined to. furnishing him with advice and appropriate assistance (as defined); category 3, the applicant who has a priority need and is homeless "intentionally"; the duty of the authority is not only to furnish advice and appropriateassistance but also "to secure that accommodation is made available for his occupation for such period as they consider will give him a reasonable opportunity of himself securing accommodation for his "occupation"; category 4, the applicant who is threatened with homelessness or is homeless "unintentionally"; the duty of the authority (put shortly) is to secure that accommodation is available for his occupation indefinitely.
The applicant for accommodation will need to know where he stands. So section 8 provides that, on completing their enquiries under section 3, the housing authority are to notify the applicant of their decision whether he is homeless or threatened with homelessness, and, if so, whether he has a priority need, whether he became homeless or threatened with homelessness "intentionally" and whether they are notifying any other housing authority. In certain circumstances, not arising in this case, the housing authority to whom application has been made may transfer their responsibilities to another housing authority.
Section 17 defines "intentionally" for the purposes of the Act. The section reads as follows, but only subsections (1) and (2) are material for present purposes:-
"17. (1) Subject to subsection (3) below, for the purposes of this Act 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) Subject to subsection (3) below, for the purposes of this Act a person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
"(3) An act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate for the purposes of subsection ( 1) or (2) above.
"(4) Regard may be had, in determining for the purposes of subsections (1) and (2) above whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he applied for accommodation or for assistance in obtaining accommodation."
We turn now to the facts. At the beginning of 1978 the appellant was expecting a child. At that time she was living with a friend in a rented flat, the details of which are not relevant to this appeal. In July she gave up her flat, and stayed for three weeks in Porthleven with her mother and her sister Janet. She then went to stay with her sister Linda, who had a council flat at 61, Essex Road, Huntingdon. The appellant's child Natasha was born in September, when the appellant was living with her sister at the Huntingdon address. At the end of September the appellant's sister Linda left the Huntingdon flat and moved to other accommodation, No. 10a, Church Street, Heiston, Cornwall. The appellant remained for the time being in sole occupation of tha, Huntingdon flat. On 2nd October or thereabouts the tenancy of the Huntingdon flat was transferred by the local authority into the appellant's name. The appellant soon made up her mind to leave the Huntingdon flat and to go to Cornwall. On 10th November she signed a tenancy agreement of No. 10, Church Street, Helston, next door to her sister Linda. The tenancy was only for 31/1 months, from 10th November 1978 to 31st March 1979. She would have to leave on 31st March 1979 because her tenancy was not protected. It was what is known as a winter letting. It contained a clause under which the tenant acknowledged that she had received notice that the landlord would require possessionof the property for holiday letting at the expiry of the term thereby created in accordance with schedule 3, Part II, of the Rent Act 1968. The appellant was therefore well aware of her position under that agreement. After she had signed the tenancy agreement, she surrendered the Huntingdon flat to the local authority.
Two months after going to Cornwall, on 19th January 1979, the appellant applied to the local housing authority for accommodation. She filled up a printed form and sent it to the Kerrier District Council. She was not quite truthful about the position in her accompanying letter. She represented to the District Council that she was homeless because her sister had left the Huntingdon flat. This was not the case.
On 22nd February the appellant called on the welfare officer, Mr. Edkins, at Helston. By then the District Council had ascertained the true position in relation to the Huntingdon flat and knew that it had been transferred into her name. Mr. Edkins informed the appellant that the District Council were going to treat her pending homelessness as "self-induced". A letter to this effect was sent to her on the same day signed by the housing officer of the District Council, but the county court judge was not, we think, satisfied that she in fact received it. She called again on 19th March. A letter to the like effect was sent to her on that day. There is no doubt that she received that letter.
The situation on 19th January, when the appellant first applied to the District Council, was that the Council had no duty towards her under the 1977 Act. She was not at that time homeless. Nor was she threatened with homelessness, because more than 28 days...
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