Michala Hodge v Folkestone and Hythe District Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Arnold,Sir Andrew McFarlane |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] EWCA Civ 896 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001996 |
[2023] EWCA Civ 896
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Arnold
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001996
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COMBINED COURT CENTRE
HHJ Parker
H00CT647
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain Colville (instructed by Holden & Co Solicitors) for the Appellant
Matt Hutchings KC and Tara O'Leary (instructed by Folkestone and Hythe District Council — Legal Services) for the Respondent
Hearing date: 4 July 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 27 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant (‘A’) appeals, with the permission of Arnold LJ, against a decision of HHJ Parker (‘the Judge’) to dismiss her appeal from a decision of Folkestone and Hythe District Council (‘the Council’), after a review dated 23 September 2021 (‘the Decision’), that she was intentionally homeless for the purposes of section 191(1) of the Housing Act 1996 (‘the 1996 Act’). The decision reviewed by the Council was dated 17 August 2021 (‘the Original Decision’).
In 2016, A had left 15 New Town, Canterbury. She had lived there in a room in a hostel run by a charity, Porchlight (‘the Room’). She had occupied the Room under the terms of a licence. In paragraphs 53–56, below, I summarise the Judge's fuller findings about A's history, and how she came to be homeless.
Part VII of 1996 Act imposes duties on local housing authorities towards homeless people. The question on this appeal is what constitutes ‘accommodation’ for the purposes of section 191(1). As that is the question, it is convenient to start with a summary of the statutory scheme and of the relevant authorities. I will then summarise the Decision, the Judge's judgment, and the parties' arguments. Finally, I will give my reasons for concluding that the Council was entitled to decide that the Room was ‘accommodation’ within the meaning of section 191(1), that A's homelessness was a consequence of her decision to leave the Room, and that she was therefore intentionally homeless.
On this appeal Mr Colville represented A. Mr Hutchings KC and Ms O'Leary represented the Council. I thank counsel for their written and oral arguments. Paragraph references in this judgment are to the relevant documents, or, if I am considering a judgment, to the paragraphs of that judgment, unless I say otherwise.
An outline of the statutory scheme
Part I of the Housing Act 1985 (‘the 1985 Act’) makes provision for local housing authorities (‘LHAs’) and for their districts. Part II of the 1985 Act is headed ‘Provision of housing accommodation’. Section 9 confers on LHAs a wide power to provide housing accommodation, by building such accommodation, or by converting buildings into houses on land which they own, and to alter, enlarge, repair or improve such housing accommodation. An LHA may provide other things in connection with housing accommodation (see sections 10, 11, 11A, 12 and 13). Section 17 gives LHAs power to acquire land for housing purposes, and section 19, a power to appropriate land for such purposes. Section 21 gives LHAs general powers of management. Part III of the 1985 Act, now repealed, was entitled ‘Housing the Homeless’.
Part IV of the 1985 Act is a code dealing with secure tenancies, which are granted by LHAs and the other bodies listed in section 80. Such tenancies can only be brought to an end by a court order (section 82). If the court makes a demotion order under section 82A, that also brings a secure tenancy to an end. Sections 107A-107E and 115 make provision for flexible tenancies, which are a species of secure tenancy. They are for a term certain of not less than two years, and must meet other specified conditions. Part V of the 1996 Act is headed ‘Conduct of Tenants’. It makes provision for a further type of tenancy, the introductory tenancy, if an LHA choses to adopt the relevant regime (sections 124–125). It also makes provision, among other things, for possession proceedings in relation to secure tenancies.
Part VI of the 1996 Act is headed ‘Allocation of Housing Accommodation’. Section 159 has the same heading. Subject to section 160, section 159(1) obliges an LHA to comply with the provisions of Part VI when it allocates ‘housing accommodation’. Section 166A(1) requires an LHA to have an allocation scheme ‘for determining priorities, and as to the procedure to be followed, in allocating housing accommodation’. Section 166A(3) requires an LHA's scheme to be framed so as to ‘secure that reasonable preference’ is given to the five classes of people listed in section subsection (3). The first listed class is ‘people who are homeless (within the meaning of Part 7)’. Section 166A(4) permits an LHA to frame its scheme so as to give ‘additional preference to particular descriptions of people within one or more of paragraphs (a)-(e) being descriptions of people with urgent housing needs’. The scheme must be framed so as to give additional preference to those listed in sub-paragraphs (i)-(iv). Section 166A(14) forbids an LHA to allocate housing accommodation ‘except in accordance with’ its allocation scheme.
Part VII is headed ‘Homelessness: England’. Section 175(1) defines a person as homeless if he has ‘no accommodation available for his occupation, in the United Kingdom or elsewhere’, which he has a right to occupy. The relevant rights are listed in paragraphs (a)-(c). Section 175(2) supplements that definition. Section 175(3) is a deeming provision: ‘a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy’. Subsections (4) and (5) describe the circumstances in which a person is ‘threatened with homelessness’.
Section 177(1) describes some of the circumstances in which it will not be reasonable for a person to continue to occupy accommodation. Section 177(2) provides that in deciding whether it would be, or would have been, reasonable for a person to continue to occupy accommodation an LHA may have regard to ‘the general circumstances prevailing in the district of the LHA to whom he has applied for accommodation or for assistance in obtaining accommodation’.
Section 188 is headed ‘Interim duty to accommodate in case of apparent priority need’. If an LHA has ‘reason to believe’ that a person may be ‘homeless, eligible for assistance, and have priority need, it must secure that accommodation is available’ for him to occupy (section 181(1)). Section 181(1ZA) and (1ZB) explain how the interim duty ends.
Section 189B imposes an ‘Initial duty owed to all eligible persons who are homeless’. The LHA must take reasonable steps to help the applicant to secure accommodation. Section 190 is headed ‘Duties to persons becoming homeless intentionally’. If the LHA is satisfied that the applicant is homeless and eligible for assistance, but became homeless intentionally, that he has a priority need and that the initial duty has come to an end, the LHA must secure that accommodation is available for him to occupy ‘for such period’ as it considers will give him a reasonable opportunity of securing accommodation for his occupation and provide him with help to secure such accommodation.
Section 191(1) of the 1996 Act explains that a person only becomes homeless intentionally if each of several conditions applies. Section 191(2) provides further explanation. Section 191 provides:
‘(1) 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.
(2) 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 deliberate.’
Section 191(3) is another deeming provision. It provides for the circumstances in which a person ‘shall be treated as becoming homeless intentionally’; essentially, if he makes an agreement under which he is required to leave accommodation which it would be reasonable for him to occupy, and does so for the purpose of getting help under Part VII of the 1996 Act, ‘and there is no other good reason why he is homeless’.
Section 202(1) gives an applicant a right to ask for a review of the decisions of LHAs which are listed in paragraphs (a)-(h), and in the circumstances listed in subsections (1A) and (1B). He must ask within the period described in section 202(3). If he does, the LHA must review its decision (section 202(4)). An applicant who is dissatisfied with the LHA's decision on a review, or who has not been notified of the decision on the review within the time limit in section 203, may appeal to the county court ‘on any point of law arising from the decision, or as the case may be, the original decision’ (section 204(1)). On such an appeal, the court may ‘make such order confirming, quashing or varying the decision as it thinks fit.’
Sections 205–209 make provision for the discharge by LHAs of their functions under Part VII ‘to secure that accommodation is available for the occupation’ of a person. By section 206(1), an LHA may only discharge its housing functions under Part VII by securing that ‘suitable accommodation provided by them is available’ or ‘by securing that he obtains suitable accommodation from some other person’, or ‘by giving him such advice and assistance as will secure that suitable accommodation is available from some other person’. LHAs must, so far as is reasonably practicable, secure that accommodation is available in...
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