Jamila Afonso da Trindade v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Irwin,Lord Justice Moylan |
| Judgment Date | 06 July 2017 |
| Neutral Citation | [2017] EWCA Civ 942 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2017 |
| Docket Number | Case No: B5/2015/2767 |
[2017] EWCA Civ 942
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE WULWICK
B40CL012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sales
Lord Justice Irwin
and
Lord Justice Moylan
Case No: B5/2015/2767
Toby Vanhegan and Ricardo Calzavara (instructed by Arkrights Solicitors) for the Appellant
Sian Davies (instructed by London Borough of Hackney) for the Respondent
Hearing date: 22 June 2017
Approved Judgment
This is an appeal against the decision of 29 July 2015 of HHJ Wulwik sitting in the Central London County Court, by which he dismissed an appeal brought by the appellant under section 204 of the Housing Act 1996 against an assessment made by the respondent housing authority ("the Council") dated 22 December 2014 upon review under section 202 of the 1996 Act. The Council's assessment in relation to establishing the extent of the duties it owed the appellant with respect to provision of social housing, was that the appellant was intentionally homeless, as defined in section 191 of the 1996 Act.
The reviewing officer's section 202 decision confirmed a previous assessment of intentional homelessness made in a decision dated 14 April 2014 by another officer of the Council under section 184 of the 1996 Act. The judge held that the reviewing officer was entitled to make the assessment of intentional homelessness which he did.
The case concerns the application of section 191(1) and (2) of the 1996 Act, which provide as follows:
"191 – Becoming homeless intentionally
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.
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."
Factual background
The appellant is from the island of Sao Tomé off the west coast of central Africa. Until she came to the United Kingdom in February 2013 she lived there with her partner and children in an apartment in a building called Uba Flor under a tenancy agreement. The appellant's sister lives in the United Kingdom.
The appellant's daughter suffers from a disability. The appellant's sister suggested that the appellant come to the United Kingdom with her daughter because the medical treatment for her daughter would be better here.
The appellant and her daughter pursued this suggestion. They left Uba Flor and came to the United Kingdom, arriving here on 2 February 2013. They went to stay with the appellant's sister at her rented accommodation at 19 Broad Common Estate, London N16. The appellant's partner gave up the tenancy of Uba Flor and moved in with his mother.
The appellant and her daughter stayed at the sister's address until September 2013, when the sister's tenancy was terminated pursuant to notice given in August 2013 by her landlord. The landlord gave notice because he wished to refurbish the property. At that stage, the appellant and her daughter applied to the Council to be provided with social housing.
It was in determining that application that the Council decided that the appellant was intentionally homeless within the meaning of section 191(1) of the 1996 Act. The appellant, acting by solicitors, asked for a review of that decision. This led to the decision of the reviewing officer, who also assessed that the appellant was intentionally homeless.
The relevant facts were determined by the reviewing officer in his decision. There is no challenge to his findings of fact on this appeal.
He identified the relevant deliberate act of the appellant as leaving the Uba Flor accommodation. At paras. 32–34, 47–48 and 50 of his decision, the reviewing officer set out these findings:
"32. I am satisfied that 19 Broad Common Estate, London N16 6NB is not your client's last settled address. In your representations you seek to support your assertion that 19 Broad Common was settled intervening accommodation, not Uba Flor. You assert that your client prior to coming to the UK had made arrangements to stay with her sister at 19, Broad Common Estate, on her immediate arrival in the UK, and that afterwards it was agreed that your client could stay for as long as necessary and that it was your client's intention to remain with her sister for more than a fleeting amount of time.
33. I find your assertion that your client intended to stay with her sister for more than a fleeting amount of time surprising, since she had not agreed with her sister how long she could stay until after she had arrived at her sister's address. Your client admits that she did not know 'how London is' and she had just been advised that there are good medical specialists here who could treat her daughter.
34. At the time your client left Uba Flor she had no clear understanding from her sister about how long she could remain with her. The intention for the accommodation was to last only until your client's daughter was well. This arrangement had the seeds of its own destruction and clearly was not intended to be long term. Your client states that she would be looking for her own accommodation. This clearly defines the arrangement as being short term and not open ended …
…
47. I am satisfied that at the time your client left Uba Flor, she did so based on little or no information about London and the accommodation her sister would be providing for her. She had no expectation as to how long her sister would provide housing for her, and it may be said that your client left Uba Flor on a 'wing and a prayer' and nothing else.
48. At the point your client decided to leave Uba Flor, she did so only in the knowledge that she could stay with her sister upon her arrival. There was no agreement as to the length of time involved. Your client states she was only mindful of her disabled daughter's medical needs, this appears to be at the expense of any investigation by your client into her long term housing in the UK.
…
50. There is nothing to suggest that your client had an expectation that when she left Uba Flor for London she would have permanent housing in the UK. There was no offer of permanent housing made to your client by her sister which later failed due to her sister's eviction from 19 Broad Common Estate."
The appellant maintained that when she left Uba Flor she had had no intention of making a homelessness application when she came to the United Kingdom and that she had acted in good faith. At paragraphs 58 to 64 of the decision, however, the reviewing officer set out his assessment that for the purposes of section 191(2) the appellant had not acted in good faith in deciding to leave Uba Flor to come to the United Kingdom. She had not even thought about or considered homelessness law in the United Kingdom when she decided to leave Uba Flor to come here. At para. 64 he wrote: "I am satisfied that your client had, by shutting her eyes to the obvious, not acted in good faith."
At paragraphs 65 to 67 of the decision the reviewing officer addressed the question whether the appellant had acted in ignorance of a relevant fact for the purposes of section 191(2), as follows:
"65. An applicant's appreciation of the prospects of future housing can be treated as 'awareness of a relevant fact' for the purposes of section 191(2) provided that it is [sufficiently] specific and provided it is based on a degree of genuine investigation, not mere aspiration. It is ignorance of a relevant fact which must not have been deliberate, not ignorance of the legal consequences.
66. The fact that your client did not fully explore with her sister the nature and extent of the accommodation she would be providing does not amount to a genuine investigation, and amounts to no more than a mere aspiration.
67. The fact that your client did not understand the English legal system in relation to being homeless is ignorance of the legal consequences and not ignorance of a relevant fact. Your client was aware at the time she left her home in Sao Tome she had not been offered permanent accommodation by her sister."
Thus, in applying section 191, the reviewing officer decided both that when the appellant left Uba Flor she had not been unaware of any relevant fact and also that her act in leaving Uba Flor was not in good faith for the purposes of section 191(2).
On the appellant's appeal to the county court, the judge found that the review decision identified the relevant act of the appellant (leaving Uba Flor) with sufficient clarity; upheld the review decision on the issue whether the appellant had acted in ignorance of a relevant fact for the purposes of section 191(2); and accordingly found that it was unnecessary to determine the issue of good faith under section 191(2), since (as was and is common ground) that would only need to be determined if the appellant had acted in ignorance of a relevant fact. On the issue of good faith, the judge said, "It is not easy to ascertain from the review decision what the review officer had in mind when saying [the appellant did not act in good faith], since he did not spell it out in paragraph 64 of the decision" ([69]).
On the appeal to the county court, the appellant's case on ignorance of a relevant fact seems perhaps to have been put in two somewhat different ways. The principal way in which her case was put was that at the time of leaving Uba Flor she did not know that her sister would be evicted from her accommodation when she was, i.e. it was put as ignorance of something which would happen in future: see [49]. The...
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