Hussain v Waltham Forest London Borough
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Briggs,Lord Justice Moore-Bick |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] EWCA Civ 14 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2014/0429 |
| Date | 20 January 2015 |
[2015] EWCA Civ 14
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London Civil Justice Centre
Mr Recorder Steynor
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Underhill
and
Lord Justice Briggs
Case No: B5/2014/0429
Christopher Baker (instructed by London Borough of Waltham Forest) for the Appellant
Stephen Knafler QC and Toby Vanhegan (instructed by TV Edwards Solicitors) for the Respondent
Hearing date: 2 December 2014
INTRODUCTION
The Respondent to this appeal, Ms Rehana Hussain, lives with her daughter in a house ("the property") rented from a housing association called Places for People ("PFP") in Bounds Green in the London Borough of Waltham Forest. From early 2012 she became a victim of persistent racial harassment and serious anti-social behaviour from the son of a neighbour, referred to before us simply as "M". She reported the problems to both PFP's community support officer and the police. They gave full credence to her complaints but felt unable to help: in the case of the police this was because so long as she remained in the property Ms Hussain was unwilling to make any formal complaint for fear of reprisals.
On 12 September 2012 Ms Hussain applied to the Council under the homelessness provisions in Part VII of the Housing Act 1996, claiming that she was homeless because M's conduct made it unreasonable for her to have to continue to occupy the property. By letter dated 11 December 2012 the agency which manages the Council's obligations under the Act, Ascham Homes Ltd ("AH"), notified her of its decision that she was not homeless. She applied for a review of that decision under section 202 of the Act. In her representations she relied in particular on section 177 (1), which applies where an applicant is at risk of violence if he or she remains in the home. I set out its full terms below: at this stage it is sufficient to say that a person must be treated as homeless if their continued occupation would lead to "violence" against them, or threats of violence which are likely to be carried out. She said that if she continued to live in the property that would lead to such violence or threats by M against her and her daughter.
The review was conducted by Taiwo Awoyungbo, a Principal Review Officer employed by AH. He conducted various enquiries, contacting both the community support officer and the police, and he interviewed Ms Hussain on 1 February 2013. By a decision letter dated 13 February he upheld the original decision.
Ms Hussain appealed to the County Court under section 204 of the Act. The appeal was heard by Mr Recorder Steynor in the Central London County Court in December 2013. By a judgment handed down on 17 January 2014 he allowed the appeal and quashed the decision of the Review Officer. Although this is not explicit on the face of the order, it is common ground before us that he decided that the decision should be remitted to the Council for a fresh review under section 202.
The Council appeals against that decision with the permission of Rimer LJ. Ms Hussain is represented by Mr Stephen Knafler QC, leading Mr Toby Vanhegan, and the Council by Mr Christopher Baker. Mr Vanhegan and Mr Baker both appeared before the Recorder.
THE RELEVANT STATUTORY PROVISIONS
Section 175 of the 1996 Act defines homelessness. Sub-section (1) provides that a person is homeless if he has no accommodation available for his occupation. Sub-section (3) provides that:
"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
Section 177 of the Act contains provisions glossing section 175 (3). For present purposes I need refer only to sub-sections (1) and (1A), which go together, and to sub-section (2). I take them in reverse order.
Section 177 (2) provides that in deciding whether it would be reasonable for the applicant to continue to occupy accommodation "regard may be had to the general circumstances prevailing in relation to housing" in the relevant area. The effect of that provision is to allow authorities, at least to some extent, to balance any hardship to an applicant of having to remain in their existing accommodation against pressures on local housing stock. Such pressures are acute in most of London, and Mr Baker accepted that this made it difficult for applicants to London boroughs to rely on section 175 (3), even if their current accommodation was quite seriously unsuitable.
Sub-sections (1) and (1A) of section 177 read as follows:
"(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him, or against—
(a) a 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.
(1A) For this purpose "violence" means—
(a) violence from another person; or
(b) threats of violence from another person which are likely to be carried out;
and violence is "domestic violence" if it is from a person who is associated with the victim."
(Sub-section (1A), together with the words "or other violence" in sub-section (1), were inserted by section 10 of the Homelessness Act 2002.) In Yemshaw v Hounslow London Borough Council [2011] UKSC 3, [2011] 1 WLR 433, to which I refer more fully below, Lady Hale described the effect of section 177 (1) as follows (see para. 7, at p. 436 G-H):
"It has variously been called a 'deeming' or a 'pass-porting' provision. The effect is … that a person who is at risk of the violence to which it applies is automatically homeless, even though she has every right to remain in the accommodation concerned and however reasonable it might in other respects be for her to do so. Questions of local housing conditions or shortages do not come into it."
There are provisions in very similar terms to those of section 177 in section 198 of the Act, which deals with the circumstances where an authority to which an application is made under Part VII can refer the case to another authority with which the applicant has a local connection. Section 198 (2A) provides that such referral shall not proceed if:
"(a) the applicant or any person who might reasonably be expected to reside with him has suffered violence (other than domestic violence) in the district of the other authority; and
(b) it is probable that the return to that district of that victim will lead to further violence of a similar kind against him."
Sub-section (3) provides that for the purpose of sub-section (2A)
"… 'violence' means–
(a) violence from another person; or
(b) threats of violence from another person which are likely to be carried out;
and violence is domestic violence if it is from a person who is associated with the victim."
I do not understand why the draftsman thought it necessary, in both section 177 and section 198, explicitly to include threats of violence as a sub-category within the definition of violence. This seems to me to add an unnecessary level of complication. If such threats have been made, and – as the definition requires – are "likely to be carried out", that would seem necessarily to establish that it was probable that actual violence would occur if the applicant continues to occupy the property, or returns to the district (as the case may be); and specific provision is redundant. But I make this point only in the interests of clear thinking: it does not seem to impinge on the issues which we have to decide.
I should mention for completeness that under powers conferred by section 182 of the Act the Secretary of State has issued a Homelessness Code of Guidance for Local Authorities to which authorities are obliged to have regard in exercising their functions relating to homelessness. We were referred to this by counsel, but I am bound to say that I found nothing in it which was useful for the purpose of the particular issues which we have to decide.
MS HUSSAIN'S CASE AS TO THE RISK OF VIOLENCE
In her written representations and her interview with the Review Officer, and in her complaints to PFP and the police (of which the Review Officer had the records), Ms Hussain relied on a number of matters as giving rise to a risk of violence by M. These can be summarised as follows:
(1) On one occasion M tried to break into her car. This seems, though there are some contradictory statements in the papers, to have occurred in 2009, when she first moved in to the property.
(2) For most of 2012 M had been subjecting her to gross racial abuse, from the street or from his mother's property, which she has to pass whenever she leaves her home, on a daily basis.
(3) M was regularly involved in drug dealing in the street outside her house. In early 2012 she had witnessed a shooting incident in which M was involved.
(4) On about ten occasions in the three months or so prior to the Council's initial decision faeces had been smeared on her car or on her front door. When M saw her cleaning away the mess he made racially offensive remarks. It was clear that it was he who had been responsible.
(5) M would regularly and deliberately park his car in such a way that she could not move her own. If asked to move it he would do so only reluctantly and his conduct would be offensive and intimidatory.
(6) On one occasion M said to her "watch what I'm going to do" and made a...
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