Maloba v Waltham Forest London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Toulson,Lord Justice Carnwath,The President of the Queen's Bench Division
Judgment Date04 December 2007
Neutral Citation[2007] EWCA Civ 1281
Docket NumberCase No: B5/2006/2336
Date04 December 2007

[2007] EWCA Civ 1281

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BOW COUNTY COURT

HHJ Hornby

6B052043

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The President of the Queen's Bench Division

Lord Justice Carnwath and

Lord Justice Toulson

Case No: B5/2006/2336

Between
The Mayor & Burgesses of the London Borough of Waltham Forest
Appellant
and
Davis Maloba
Respondent
and
The Law Society
Interested Party

Kerry Bretherton (instructed by London Borough of Waltham Forest) for the Appellant

Robert Latham (instructed by Messrs A M Vance & Co) for the Respondent

David Holland (instructed by the Law Society) for the Interested Party

Hearing date: 24th October 2007

Judgement

Lord Justice Toulson

Introduction

1

This appeal concerns the homelessness provisions in part VII of the Housing Act 1996, as amended. It raises, in particular, questions regarding the proper interpretation of s 175(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”, about which differing views were expressed in this court in Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306.

The facts

2

Mr Maloba was born in Uganda on 22 September 1962. Until the age of 14 he was brought up by his parents in the family home in the village of Kanyanya near Kampala. At 14 he was sent away to school in a small town near Kampala. After leaving school he rented accommodation in Kampala until he came to the UK in September 1989. He has lived in the UK since then and he acquired British citizenship in 1997.

3

In 1999 Mr Maloba met his present wife, Angela, on a visit to Uganda. They formed a relationship. On 24 July 2001 Angela gave birth to their daughter, Bridget. In 2002 they were married in Kampala. After the marriage Mrs Maloba and Bridget lived for two years in an annex at the Maloba family home. The main building is a three bedroom house, but in the grounds of the house there is a separate building or annex containing a living room, bedroom and bathroom. Mr Maloba's father had died in 1993, and at the time of Mr and Mrs Maloba's marriage the house was lived in by Mr Maloba's brother and one of his three sisters together with their families.

4

In December 2004 Angela and Bridget came to the UK to live with Mr Maloba. At first the family lived in privately rented accommodation, but the landlord was not prepared to allow them to remain there on a long term basis. On 18 March 2005 Mr Maloba approached Waltham Forest's housing department for help because the family was threatened with homelessness. He was interviewed on various occasions, and on 29 March 2005 a housing officer completed a homelessness application form. One of the questions on the form was “Does applicant own, rent or have access to property anywhere abroad?”, to which the answer given was negative.

5

Mrs Maloba had entered the UK on a visitor's visa, but Bridget had a visa to settle in the UK with her father. On 5 December 2006 Mrs Maloba was granted indefinite leave to remain, but this was long after the decision of the council which has given rise to this litigation. At the relevant time Mrs Maloba was not eligible for housing assistance and therefore not eligible for assistance under the homelessness provisions of the Act (s 185). Bridget was in a different position. If Mr Maloba satisfied the criteria of homelessness, her position as a dependant child potentially made him a person with a priority need for accommodation (s 189).

6

On 3 May 2005 the council secured interim accommodation for the family at Southfields Court, Leytonstone E11.

7

On 23 June 2005 the council wrote to Mr Maloba asking him, among other things, where Mrs Maloba and Bridget had been living before their arrival in the UK. On 29 June 2005 Mr Maloba replied that “they lived in my house back home at Kanyanya in Kampala”. On 22 July 2005 he was interviewed by a council officer about the Kampala property. The notes of the interview recorded:

“App said that the house in Kampala became the family house in 1993, when his father died. Any member of the family may live in the house.”

8

On 26 July 2005 the officer wrote a “pre-decision” letter to Mr Maloba in the following terms:

“I advise you that with the information that you have provided through interviews and letters, we are of the opinion that you are not homeless. This is based on that you have accommodation at Kanyanya Kampala.

You have explained that the house in Kampala is a family house, where any member of the family may live. Therefore you are able to live at the house at Kanyanya Kampala. According to the Housing Act you are not homeless. The Housing Act states that you are homeless if you have no accommodation that you are not [sic] entitled to occupy. You have accommodation in Kampala that you are entitled to occupy. A person is homeless if they have accommodation that is available, however not reasonable to occupy [sic]. Your accommodation in Kampala is available and reasonable for you to occupy with your wife and daughter. You said that your wife lived in the annex of the house; therefore you are able to stay in the annex or the main part of the house in Kampala.”

9

On 29 July 2005 Mr Maloba replied:

“I reply to inform you that I am homeless. In your letter you stated that I am not regarded homeless basing on the family house in Kanyanya in Kampala. But honestly I live here and work here. I hold a British passport, thus a British African. My future is here. I have been here for over fifteen years and because my future is here that's why I decided to invite my wife and daughter to join me here…I belong here, my future is here and not in Kanyanya, Kampala, Uganda.”

10

On 11 August 2005 the council notified Mr Maloba of its decision that he was not homeless because he was entitled to occupy the accommodation in Kampala, which it had concluded was reasonable for him and his family to occupy since he had not identified any problem with living in it. On 23 August 2005 Mr Maloba requested a review of the decision, reiterating that he lived in England and not Uganda.

11

On 4 November 2005 Mr Maloba met the review officer. He told her that he had learned that the property in Kampala was being repossessed by a finance company which had lent money on the security of the property to Mr Maloba's sisters and brother. The review officer asked him for documentary evidence. He subsequently provided her with copies of a number of documents apparently written by Uganda Microfinance Limited (“UML”) and signed by its chief executive officer, Mr Nalyaali.

12

The review officer was sceptical about their authenticity, but she visited UML's website, from which it appeared to be a legitimate company.

13

On 13 January 2006 the review officer sent an email to Mr Nalyaali asking whether the documents were genuine and what stage any repossession proceedings had reached. On 9 March 2006 Mr Nalyaali emailed the review officer confirming that the property had been pledged as collateral to secure a loan of 50 million Ugandan shillings and had been sold in order to recover arrears of 36 million schillings. The review officer immediately emailed Mr Nalyaali with a request for documentary evidence of the repossession of the property. On the following day Mr Nalyaali replied to the effect that he was busy and the matter was not his top priority, but that if she provided him with a list of specific requirements he would be happy to share them with her.

14

On 24 March 2006 the review officer wrote to Mr Maloba confirming the council's decision that he was not homeless because the accommodation in Kampala was “available and reasonable for you to continue to occupy”. The writer referred to Mr Maloba's letter of 29 July 2005 (see paragraph 9 above) and commented:

“Unfortunately, that is not a valid reason for you to be entitled to housing in the UK. The law requires that we consider whether you have accommodation anywhere in the UK or elsewhere. Since we have identified that you do have an interest in your family home in Kanyanya, Kampala, Uganda, we are under an obligation to investigate if it is available and reasonable for you to remain.”

15

The letter continued:

“I have considered whether you are homeless from an address “elsewhere” that is reasonable and available for your continued occupation, as required by the homelessness legislation.

You have informed [the council] that your father had left the property at Kanyanya, Kampala, Uganda to you and your siblings after his death in 1993. You also informed us that the property consists of three bedrooms with an annex called “the boys quarters”. Your wife resided in the annex from 2002 to 2004 before she came to join you in the UK. You have stated that the annex comprises of one bedroom, one living room and one bathroom. Your wife shared the kitchen facilities in the main house. You have not stated any other reason why this accommodation might be considered unreasonable for your continued use. I therefore consider this accommodation reasonable for your family to continue to occupy. ”

16

The writer considered the evidence that the property had been sold by UML but rejected it on the grounds that the letters produced contained discrepancies and were lacking in the details which would be expected. She referred to her request to Mr Nalyaali for further information, which she had not received. Considering that repossession was a serious matter with legal implications, she concluded that the documents which had been provided did not show proof that the family home...

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