Osei v Southwark LBC
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Hooper,Master of the Rolls |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 787,[2007] EWCA Civ 537 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2007 |
| Docket Number | Case No: B5/2007/0159 |
[2007] EWCA Civ 787
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
MR RECORDER WIDDUP
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lady Justice Arden and
Lord Justice Hooper
Case No: B5/2007/0159
Mr Jamie Burton (instructed by Messrs Loe Hansen & Partners) for the Appellant
Mr Donald Broatch (instructed by LB Southwark) for the Respondent
Hearing date: 24 July 2007
Judgement
Mr Osei is a family man and he has come to live and work in London. His wife and two sons are now here with him. He contends that Southwark owe him a full housing duty, and that he is a person in priority need of housing. Southwark, having made certain inquiries into his case, decided that he was intentionally homeless and that it did not therefore owe him a full housing duty. The reviews officer of Southwark upheld this decision on review. Mr Osei appealed on the point of law to the county court, where the judge, Mr Recorder Widdup, dismissed his appeal. He now appeals on a point of law to this court. Essentially, his point of law is that Southwark were wrong to conclude that it was reasonable for him and his family to continue to occupy his former family home and made a material error of fact that that home was not overcrowded. It failed to make sufficient inquiries and thus effectively reversed the onus of proof. In my judgment, Southwark made no error of law for the reasons that I will explain below.
I must get one point out of the way straight away. Mr Osei is a Spanish national, and his former home was in Madrid. But those facts make no difference to the application of the law. Southwark accepts that, under Community law, Mr Osei is entitled to be placed in exactly the same position as respects public housing as a British national who had come to work in London. His case is exactly the same therefore as if he had brought his family from, say Newcastle, to London because he had obtained work there.
What then is the relevant statute law? The structure of Part VII of the Housing Act 1996 is well known, and I can conveniently set out the meaning of intentional homelessness and the manner in which intentional homelessness is determined by citation from my recent judgment in Denton v Southwark [2007] EWCA Civ 623:
“Meaning of intentional homelessness
3. S 191 of the HA 1996 deals with the meaning of “intentional homelessness” and in material part it provides as follows:
“(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.”
4. S 191 (1) contains four requirements. First, the applicant for housing must have deliberately acted or omitted to act. S 191(2) goes on to provide that an act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate. Secondly, his actions or omissions must have caused him to cease to occupy accommodation. Thirdly, that accommodation must have been available for his occupation. Fourthly, it must have been reasonable for him to continue to occupy that accommodation. It does not have to be shown that it was reasonable for him to leave the accommodation (see per Woolf J in R v Wandsworth LB ex parte Nimako-Boateng (1983) 11 HLR 98).
5. S 177 of the HA 1996 is relevant to the fourth requirement and in part to this case. Ss(1) deals with the situation where a person's continued occupation is likely to lead to violence. We are not concerned with that subsection and accordingly I will not summarise it. Ss (2) provides that, in determining whether it would be or would have been reasonable for a person to continue to occupy accommodation, the local authority may have regard to the general circumstances prevailing in relation to housing in its district. Ss (3) enables the Secretary of State to make orders specifying other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation or other matters to be taken into account in determining whether it would be or would have been reasonable for a person to continue occupation. We have not been taken to any order made under this subsection.
How intentional homelessness is determined
6. I should summarise very briefly the procedure for determining applications for housing. It falls to the local housing authority to make a decision in the first instance as to whether an applicant for housing has become homeless intentionally. In reaching that decision, it must have regard to the guidance issued by the Secretary of State and under that guidance the local housing authority has to give “careful consideration to the circumstances of the applicant and the household” (Homelessness Code of Guidance for Local Authorities (2002) para. 7.15, now para. 11.22 of the Homelessness Code (2006)). The local authority is under a statutory duty to make such inquiries as are necessary to satisfy itself as to whether any, and if so what, duty is owed to the applicant (S 184 of the HA 1996, and see generally R v Royal Borough of Kensington & Chelsea, ex parte Bayani (1990) 22 HLR 406). The inquiries will not necessarily be limited to matters raised by the applicant. If the local authority decides that a person has become homeless intentionally, the applicant has the right to have that decision reviewed by the local authority (s 202 of the HA 1996). If a person is dissatisfied with the decision on review under s 202, he may appeal, on a point of law only, to the county court. From there he can appeal, with permission, to this court.”
S 176 provides that accommodation is not to be regarded as available for an applicant's occupation unless it is available for him together with any person who normally resides with him as a member of his family. Accordingly Southwark were bound to consider whether accommodation was available not only for Mr Osei but also for his family.
In the passages cited above from Denton, I stated that s 191 (1) contained four requirements. The appellant accepts that he satisfies the first two requirements in this case by terminating his tenancy of his earlier home in Spain. There is also no issue as to the third requirement that that accommodation was available for his occupation since it is accepted that the tenancy was terminated before the contractual date for its expiry. It may indeed have been available for renewal after that date, though there is an issue as to that. The issue in this case is whether it was reasonable for Mr Osei to occupy the flat at the date when he terminated his tenancy of it.
The third and fourth requirements identified in Denton, namely the requirements that accommodation must have been available to him for his occupation and that it was reasonable for him to continue to occupy that accommodation, must be considered at the time at which he ceased to occupy that accommodation. This point falls to be added to the points which I made in [4] in Denton.
Function of the court
One of the issues in this case is whether Southwark made appropriate inquiries. I dealt with the court's function in this context at [26] of my judgment in Denton:
“I have explained that a local authority must make appropriate inquiries when it receives an application for accommodation. However, the court will not hold that it should have made further inquiries unless it was unreasonable in the sense of the perverse or irrational for it not to make further inquiries. Thus, in Cramp v Hastings BC [2005] HLR 48, Brooke LJ, giving the judgment of the court of which I was also a member, held:
'In each case, it was for the council to judge what inquiries were necessary, and it was susceptible to a successful challenge of a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further inquiries suggested by the appellant's advisers.'”
Likewise, the court will only hold that there is an error of law in relation to a finding of fact made by the local housing authority under section 202 of the Housing Act 1996 if the finding of fact was the such that no reasonable housing authority could have made that finding on the evidence before it.
The application of the relevant statutory provisions in this case depends of course on the facts, which I will now summarise.
Background
As I have said, Mr Osei is a Spanish citizen. He was born in Ghana. From 1999, he leased a room as a joint tenant in a shared flat in Madrid. The flat comprised 3 bedrooms (2 single and 1 double), a bathroom, a kitchen and a living room. Mr Osei lived in one of the single rooms with his wife and two children (born in September 2000 and February 2004 respectively). His co-tenant, Mrs Restituyo, lived in the double room with her daughter. The third bedroom was kept vacant. In June 2001, Mr Osei signed a five year lease with a reduced rent of €300 per month. He was employed in a factory on a low income and could not afford more spacious accommodation.
In 2002, Mrs Restituyo's daughter, then 18 years old, left. She got married and moved in with her husband's parents. In January 2004, Mrs Restituyo's daughter returned to the flat with her husband and young child and they occupied the remaining empty bedroom. The flat accordingly became seriously overcrowded with 5 adults and 3 children sharing 3 bedrooms. There was some evidence that...
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