Huda v The London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lady Justice Black,Lady Justice King |
| Judgment Date | 12 July 2016 |
| Neutral Citation | [2016] EWCA Civ 709 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2016 |
| Docket Number | Case No: B5/2014/3051 |
[2016] EWCA Civ 709
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
CENTRAL LONDON
His Honour Judge Hand
3RM01344
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lady Justice Black
and
Lady Justice King
Case No: B5/2014/3051
Mr Lindsay Johnson (instructed by the SA Law Chambers Solicitors) for the Appellant
Ms Josephine Henderson (instructed by the London Borough of Redbridge Legal Services) for the Respondent
Hearing date: 8 June 2016
Approved Judgment
This appeal is from the order dated 8 August 2014 of HHJ Hand QC sitting in the Central London County Court dismissing the appellant's appeal under section 204 of the Housing Act 1996 ("HA 96"). The issue is whether the final review decision ("the final review decision") of the respondent authority ("R"), comprising a review letter dated 17 May 2013 and a supplementary review letter dated 3 January 2014, was wrong in law in its conclusion that the appellant's accommodation was not "settled" so that he was still "intentionally homeless." As is well known, the effect of that conclusion was that the appellant was by law ineligible under the Housing Act 1996 ("HA 96") for further social housing and would have to enter the private sector. The appellant contends that he has ceased to be "intentionally homeless" because he has been occupying, with his family, a property (at 47 Wanstead Park Road, Ilford, Essex IG 1 3TG ("47 Wanstead") under licence from a third party (L), which was procured by R for his benefit in performance of its limited housing duty to persons in priority need who are intentionally homeless. This is because section 190(1) and (2) HA 96 provides:
190 (1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.
(2) If the authority are satisfied that the applicant has a priority need, they shall—
(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and
(b) [not relevant — deals with advice and assistance]…
The concept of "settled accommodation" is described by Ackner LJ in ( Din v Wandsworth LBC Transcript, 23 June 1981). Basing himself on the proposition that it would be wrong if a person could not rid himself of the status of "internationally homeless," Ackner LJ explained how the law allowed him to do so:
To remove his self-imposed disqualification, he must … 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) 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. I can see no reason why the good sense of the local authority cannot be relied upon for making the right decision. There is always the Court's supervisory jurisdiction upon which an unsuccessful applicant can, in a proper case, rely.
The House of Lords approved of this concept both on appeal in the same case [1983] 1 AC 657 and in the later case of R v Brent LBCex p Awua [1995] 1 AC 55. At page 69, Lord Hoffmann made the following observations on the passage just cited in which he analysed the concept in terms of causation:
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 Supreme Court considered Din in Haile v Waltham Forest LBC [2015] 1 AC 1471, but the judgments of the Supreme Court in that case do not affect the concept of "settled" accommodation as explained by Ackner LJ and Lord Hoffmann in the passages set out above.
As Ackner LJ explained, the question whether accommodation is settled is one of fact and degree. The concept is used in different contexts in housing law. In R v Croydon LBC, ex p Easom (1992) 25 HLR 262 (Andrew Collins QC sitting as a judge of the High Court), two British emigrants to Australia who had lost their home there because they were not permitted to settle there were held to be intentionally homeless: their right to occupy their home in Australia was precarious because of their immigration status. So too, a young mother who had been intentionally homeless and who took up a 6-month assured tenancy on the express basis that it would not be continued after 6 months, was held not to have had "settled accommodation": Knight v Vale RBC [2004] HLR 106. At page 116, this Court took account of the fact that accommodation in the private sector would normally be on an assured shorthold tenancy for 6 months and that the grant of such a tenancy would be likely to lead to the result that the tenant had had "settled" rather than temporary accommodation. This line of authority creates a difficulty for any appellant because, on an appeal under section 204 HA 96, neither this Court nor the County Court can itself make any finding of fact, nor can it set aside any finding of fact unless the reviewing officer made a material finding perversely.
Background
The judge's careful judgment sets out the background in detail. I have set out the relevant paragraphs in the annex to this judgment. In a nutshell, the appellant had been found to be intentionally homeless in previous review decisions, which can no longer be challenged, because he had been offered accommodation which it was reasonable for him to accept. R had initially caused L to accommodate him at 47 Wanstead only on a temporary basis under sections 188 and 190 of the Housing Act 1996, but, owing to an internal error by R, no step was taken to evict him for some two years. The appellant occupied 47 Wanstead on the basis of a written licence granted by L, which was never varied.
The final review decision
The overall conclusion of the final review decision was that the appellant's occupation of 47 Wanstead did not break the chain of causation between the intentionality of his homelessness and a new application treated as made after service of the notice to quit. The two letters comprising the final review decision are to be read together. I refer only to the parts of these documents relevant to this judgment and I will not therefore deal with matters which are not in dispute on this appeal.
The reviewing officer found as a matter of fact that the appellant had continued to live at 47 Wanstead because of R's administrative error. Failure to evict the appellant was therefore not indicative of a decision to allow the appellant to remain. The appellant had benefited as a result. The reviewing officer then held that 47 Wanstead had been provided under section 190(2) and that:
Accommodation under this provision is simply not capable of being settled.
The reviewing officer took into account the length of time the appellant had lived at 47 Wanstead but held that it could not be determinative. Occupation was "precarious" with "little security of tenure".
As to the nature of the occupancy right, the reviewing officer found that this was a licence and not a tenancy. The appellant did not have exclusive possession. The reviewing officer expressly found that the licence was not a sham. The landlord was L, not R. As a result of the decision of this Court in Desnousse v Newham LBC [2006] QB 831, the Protection from Eviction Act 1977 (which would necessitate a court order) did not apply if the accommodation was provided under section 190(2) HA 96. The reviewing officer held that this would be the case even if the accommodation was no longer properly so provided because of R's error. Nonetheless, in the circumstances of the case, the reviewing officer considered that the security of tenure the appellant would have if he were an assured tenant would still not have made 47 Wanstead settled accommodation.
The reviewing officer then concluded as follows:
"Since the beginning of the licence Mr Huda has occupied the accommodation that was provided by the Provider [L] under the same terms, with the specific intention of it being used to fulfil Part VII duties. The provision of the accommodation has continued to be connected to the Council and the framework agreement that the Council has with its partner providers specifically to secure access to temporary accommodation. There have been no implied or express actions on behalf of either the Authority or the Provider that would indicate that the accommodation was subsequently provided for any other reason. There has been no separate licence or tenancy offered to Mr Huda, he has not been advised, for instance, that despite there no longer being any s190(2) duty, he would continue to be accommodated on a discretionary basis.
Indeed there is no duty or even power to continue to accommodate an applicant found to be intentionally homeless under any other provision; there is no discretionary power analogous to that [in] s192(3). The continued occupation, which clearly only continued under the terms of the letter dated 15...
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