Haile v Waltham Forest London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Fulford,Lord Justice Christopher Clarke |
| Judgment Date | 13 June 2014 |
| Neutral Citation | [2014] EWCA Civ 792 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 June 2014 |
| Docket Number | Case No: B5/2013/3271 |
[2014] EWCA Civ 792
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COUNTY COURT
HHJ BIRTLES
3BO00588
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Fulford
and
Lord Justice Christopher Clarke
Case No: B5/2013/3271
Ms Kerry Bretherton (instructed by Hackney Community Law Centre) for the Appellant
Mr Christopher Baker (instructed by London Borough of Waltham Forest) for the Respondent
Hearing date: 15 th May 2014
This judgment is in seven parts, namely:
| Part 1. Introduction | paragraphs 2 to 16 |
| Part 2. The facts | paragraphs 17 to 31 |
| Part 3. The present proceedings | paragraphs 32 to 37 |
| Part 4. The appeal to the Court of Appeal | paragraphs 38 to 42 |
| Part 5. The law | paragraphs 43 to 57 |
| Part 6. The decision | paragraphs 58 to 66 |
| Part 7. Executive summary | paragraphs 67 to 68 |
This is an appeal by an applicant for housing accommodation under Part VII of the Housing Act 1996 against a decision that she was "intentionally homeless". The issue for decision is this: should the respondent Council have considered whether the appellant's homelessness was intentional on the date in which she became homeless or on the date of the Council's decision?
The appellant is Ms Saba Haile, a 37 year old woman who is the mother of two children, born in February 2012 and November 2013. The respondent is the London Borough of Waltham Forest, to which I shall refer as "the Council".
One body which provides social housing in East London is Chiltern Hundreds Charitable Housing Association. I shall refer to this housing association as "CHC".
In this judgment I shall refer to the Housing (Homeless Persons) Act 1977 as "the 1977 Act"; The Housing Act 1985 as "the 1985 Act"; The Housing Act 1996 as "the 1996 Act".
Section 4 (5) of the 1977 Act provided:
"Where (a) housing authority are satisfied-(i) that a person is homeless, and (ii) that he had a priority need, but (b) they are not satisfied that he became homeless intentionally, their duty… is to secure that accommodation becomes available for his occupation"
Section 17 of the 1977 Act provided:
"(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 accommodation 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 the relevant fact is not to be treated as deliberate for the purposes of subsection ( 1) or (2) above."
The provisions of the 1977 Act were subsequently incorporated into the 1985 Act. The 1996 Act subsequently replaced the 1985 Act. The 1996 Act is now the statute which governs the provision of accommodation for homeless persons.
Section 175 of the 1996 Act provides:
"(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 license 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.
…
(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.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days."
Section 176 of the 1996 Act provides:
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with—
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him."
Section 191 of the 1996 Act provides:
"(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."
Section 193 of the 1996 Act provides:
"(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 refers the application to another housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
Section 202 of the 1996 Act provides that an applicant has the right to request a review of any decision by a housing authority as to what duty is owed to him under Sections 190 – 193 of the 1996 Act. Upon receipt of such a request the authority must review its decision.
Section 204 of the 1996 Act provides that an applicant who has requested a review under Section 202 may appeal to the county court if he is dissatisfied with the review decision. The applicant may only appeal on a point of law arising from the decision.
I shall refer to the allocation of Housing and Homelessness (Review Procedures) Regulations 1999 as "the 1999 Regulations". The 1999 Regulations set out the procedure to be followed upon reviews under section 202 of the 1996 Act. Regulation 8 (2) of the 1999 Regulations provides:
"(2) 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."
Having set out the statutory framework, I must now turn to the facts.
Ms Haile is a citizen of Eritrea, who came to the UK in January 2010 seeking asylum. The Secretary of State refused the asylum claim, but subsequently granted Ms Haile leave to remain.
On 10 June 2010 Ms Haile moved into a bedsitting room in a large hostel in Leyton. Her new address was: Room 708, Lea Bridge House, 497–501 Lea Bridge Road, Leyton, London E10. CHC is the landlord of that property and it granted Ms Haile an assured shorthold tenancy of Room 708. This also entitled her to shared use of the kitchen, bathrooms and other common parts of the hostel. The tenancy was for an initial term of six months and thereafter on a weekly periodic basis. It was a term of the tenancy agreement that only one person could occupy the room.
On 28 July 2010 Ms Haile applied to the Council under Part VI of the 1996 Act for housing accommodation. I have not seen that application. As I understand it, however, she was seeking a permanent flat of her own and that application is still in the queue.
In June 2011 Ms Haile became pregnant. Over the following months, for reasons which have been disputed, Ms Haile became dissatisfied with her accommodation at Lea Bridge House.
On 25 th October 2011 Ms Haile moved out of Room 708 and went to stay with a friend, Ms Kidane, in Brixton. She subsequently returned the keys of her room to CHC or their agents.
On 11 November 2011 Ms Haile attended the Council's Homeless Persons Unit. On 24 th November Ms Haile made an application to the Council as a homeless person under Part VII of the 1996 Act.
On 24 th November 2011 one of the Council's caseworkers completed a housing advice and assessment form. This recorded that Ms Haile was probably intentionally homeless.
On 23 rd December 2011 Ms Kidane required Ms Haile to leave. Ms Haile then moved into temporary accommodation at 24 Southfield Court, 61 Acacia Road, London E1. The Council only granted her a temporary licence to occupy this accommodation.
On a number of occasions Ms Haile informed the Council that she had left Lea Bridge House because of unpleasant smells there. The Council accepted that residents of different nationalities cooked a variety of foods. The Council did not accept that the smells were such that it was reasonable for Ms Haile to move out.
On 15 th February 2012 Ms Haile gave birth to a girl, Delina Biniam. The consequence of this birth was that even if Ms Haile had remained at Lea Bridge House after October 2011, she would have had to move out in February 2012. The tenancy agreement for Room 708 only permitted single occupancy.
On 1 August 2012 the Council reached a decision that Ms Haile was eligible, homeless and in a priority group, but that she had become intentionally homeless. Accordingly the Council was not under a duty to provide accommodation for Ms Haile pursuant to Section 193 of the 1996 Act.
Ms Haile sought a review of that decision pursuant to Section 202 of the 1996 Act. Mr Minos Perdios carried out the review on behalf of the Council. He delivered his decision in a letter dated 31 January 2013.
Mr Perdios concluded that the smells were not such that Ms Haile was justified in leaving the hostel at Lea Bridge Road. She...
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