Melvilina Gavin v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Chancellor of the High Court |
| Judgment Date | 01 March 2017 |
| Neutral Citation | [2017] EWCA Civ 209 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 2017 |
| Docket Number | B5/2016/116 |
[2017] EWCA Civ 209
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HHJ LOPEZ)
Royal Courts of Justice
Strand
London, WC2
The Chancellor of the High Court
Sir Geoffrey Vos
B5/2016/116
Mr D Carter (instructed by Shelter West Midlands Advice Service) appeared on behalf of the Applicant
Introduction
This is the renewed oral application of an application by the appellant, Ms Melvilina Gavin ("Ms Gavin"), for permission to appeal against the decision of HHJ Lopez dated 31st January 2016, made in the Birmingham County Court. By that decision His Honour Judge Lopez dismissed Ms Gavin's appeal against the decision of Ms Jenny Carter, reviewing officer ("the RO") of the respondent Birmingham City Council ("the Council"). By her decision of 15th July 2015 the RO decided that the Council did not owe Ms Gavin a duty to house her under Part VII of the Housing Act 1996 ("the 1996 Act") because Ms Gavin was not "homeless" within the meaning of that Act.
The application turns on section 175 of the 1996 Act which provides in material part as follows:
"175. Homelessness and threatened homelessness
(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…
(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…"
On this application to bring a second appeal the appellant has to satisfy the court either that the appeal raises an important point of principle or practice, or that there is some other compelling reason for an appeal to be heard.
On 6th May 2016 Patten LJ refused permission to appeal on the ground that the issue of whether it was reasonable for the appellant and her family to continue to occupy accommodation at 55 Priors Way, Erdington, Birmingham B23 5XJ ("the property"), had to take into account the fact that the appellant had been provided with grants to install a new central heating system and to build a suitable ground floor extension for the appellant's son, Omar. She could not rely on non-completion of these facilities when that had been the result of her own unreasonable conduct. The Council had done all that was necessary to make the property suitable for Omar's needs and had offered respite care to cover the period of the works. The judge had therefore been right to hold that the temporal approach adopted in Denton v Southwark LBC [2008] HLR 11 ("the Denton case") was as relevant to section 175(3) as it was to section 191(1) of the 1996 Act in relation to intentional homelessness.
Background Facts
Ms Gavin has two children who form part of her household. Omar was born on 22nd June 1993, so is now nearly 24 and was diagnosed in September 2000 at aged 7 with Duchenne Muscular Dystrophy, a disease which causes progressive muscular weakness in the limbs and later in the respiratory system, as well as difficulty in maintaining a healthy body temperature. On 21st December 2001 Ms Gavin purchased the property which she occupied as her home with her two children. In 2003, at the age of 10, Omar lost the ability to walk and since then has used a wheelchair. Ms Gavin is Omar's primary carer.
On 18th January 2008 Ms Gavin replaced the central heating boiler at the property and then experienced problems with that heating system. Ms Gavin filed a homelessness application with the Council for the first time on 2nd December 2009, when Omar was 16. That application was refused. Ms Cherilyn Hibbert, a homelessness officer, wrote to Ms Gavin on 10th March 2010 informing her of the decision that she was not "homeless" as it was reasonable for her to continue to occupy the property.
On 22nd August 2012, by which time Omar was 19, Ms Gavin applied to the Council for a disabled facilities grant to modify the property. On 17th December 2012 the Council awarded Ms Gavin the sum of £64,342.40 for the purpose of extending the ground floor of the property and making numerous adaptations to accommodate Omar's needs. In particular, heating, a ground floor en suite bedroom, a hoist bed and wheelchair turning. Building works for the extension commenced on 4th March 2013 but ceased shortly afterwards because Ms Gavin was dissatisfied with the quality of the contractor's work. Ms Gavin and both children have lived in the property since that time but it is clear that the property remains in an unsatisfactory state for Omar's needs.
On 6th February 2014 Ms Gavin attended the Council's Erdington office and made a second homelessness application. Ms Gavin and the children were provided with interim accommodation under section 188(1) of the 1996 Act. Her application however was refused on the basis that although she was eligible for assistance she was not homeless.
The original decision was made by Mr Rajesh Samrai, a Senior Housing Needs Officer on 26th June 2014. Mr Samrai decided that Ms Gavin was not homeless because it was reasonable for her to occupy the property. Ms Gavin sought a review of this decision under section 202 of the 1996 Act.
The RO issued a "minded to" letter dated 27th August 2014, informing Ms Gavin that the original decision was deficient because it gave adequate consideration to Omar's medical information and invited Ms Gavin to make further representations. She did so. A second "minded to" letter and further representations ensued.
On 1st December 2014 however the RO decided to uphold the original decision. By a letter of 4th December 2014 the RO withdrew the letter of 1st December as she had revised her decision but decided to uphold the original decision. On 23rd December 2014 Ms Gavin appealed for the first time to the County Court under section 204 of the 1996 Act. On the 10th June 2015 the case was compromised and the Council agreed to review the original decision once again. On 30th July 2015 the RO notified Ms Gavin of her renewed decision to uphold the original decision on review. It is that decision that is effectively the subject of the attempted second appeal that I am considering.
Ms Gavin filed an Appellant's Notice with the County Court for the second time on 17th August 2015. Mr David Carter, counsel for Ms Gavin then as now, filed grounds of appeal, dated 12th August...
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