Oxford City Council v Darren Bull
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Tomlinson,Lord Justice Pill |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Civ 609 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2010/2028 |
| Date | 18 May 2011 |
[2011] EWCA Civ 609
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Harris Q.C.
Insert Lower Court NC Number Here
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Jackson
and
Lord Justice Tomlinson
Case No: B5/2010/2028
Mr Andrew Arden QC and Lindsay Johnson (instructed by Oxford City Council) for the Appellant
Ms Kerry Bretherton and Mr Andrew Lane (instructed by Turpin Miller Solicitors) for the Respondent
Hearing date: Wednesday 13 th April 2011
This judgment is in six parts, namely:
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Appeal to the Court of Appeal,
Part 4. The First Ground of Appeal: Priority Need,
Part 5. The Second Ground of Appeal: Intentional Homelessness,
Part 6. Conclusion.
This is an appeal by Oxford City Council against a decision that it is under a duty to provide accommodation for Mr Darren Bull under Part 7 of the Housing Act 1996. I shall refer to the appellant as "the council". I shall refer to Mr Darren Bull, the respondent, as "Mr Bull". I shall refer to Mr Bull's wife, Tracey, as "Mrs Bull". I shall refer to the Housing Act 1996 as "the 1996 act" or "the Act".
This appeal raises two separate issues. The first issue is whether Mr Bull has "priority need for accommodation", as defined in section 189 of the 1996 Act. The second issue is whether Mr Bull became "homeless intentionally", as defined in section 191 of the Act.
Part 6 of the 1996 Act provides for the allocation by a local authority of housing accommodation to persons who become tenants, often on a long term basis. Part 7 of the Act imposes duties on a local authority to provide accommodation or services to homeless persons, subject to numerous qualifications and restrictions. I shall now summarise or quote the provisions of Part 7 of the Act which are relevant to the present appeal.
Section 175 of the 1996 Act provides:
"(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,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
………
(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."
Section 176 of the 1996 Act provides:
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with –
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him."
Section 184 of the 1996 Act provides:
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
Section 188(1) of the 1996 Act provides:
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
Section 189(1) of the 1996 Act provides:
"The following have a priority need for accommodation –
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."
Section 191 of the 1996 Act 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 as deliberate."
Section 193 of the 1996 Act provides:
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
Section 202 of the 1996 Act entitles an applicant under Part 7 of the 1996 Act to request a review of any decision with which he or she is dissatisfied. Upon such request the local authority must review their decision. Section 204 of the Act entitles an applicant who is dissatisfied with a review decision to appeal to the county court on any point of law rising from the decision.
After these introductory remarks, I must now turn to the facts.
Mr and Mrs Bull have three children, Nikita born on 22 nd January 1993, Kye born on 28 th December 1997 and Kade born on 12 th March 2003. Until March 2009 the whole family lived at 34 Mortimer Road, Oxford. This is a three bedroom house owned by the council, of which Mrs Bull is and was the secure tenant.
Unfortunately Mr and Mrs Bull's relationship failed and in June 2009 they separated. Mr Bull went to live in one room in a shared house at 43 Herschel Crescent, Oxford. Mrs Bull and the three children remained living in the former matrimonial home at 34 Mortimer Road.
It appears that the children wanted to live with their father, rather than their mother. Allegations have been made that Mrs Bull drank excessively, that she left the care of the younger children to Nikita and that she formed a new relationship of which Nikita disapproved.
In August 2009 the three children went to stay with an aunt for a period. Then, on 26 th August 2009, the three children went to their father and asked to live with him. He agreed.
Mr Bull's accommodation, being a single room in a shared house, was hopelessly unsuitable for a family of four. Unsurprisingly Mr Bull's landlord gave notice to quit.
In those circumstances Mr Bull asked the council for assistance. This request triggered the council's duty under section 184 of the 1996 Act to make inquiries, in order to ascertain whether they owed him a duty under Part 7 of the Act. The council also came under a duty to provide temporary accommodation for Mr Bull while they carried out those enquiries: see section 188 of the 1996 Act.
In accordance with their duty under section 188 of the Act, the council provided temporary accommodation at 34 Peregrine Road, Oxford. Mr Bull and his three children moved into that property on 12 th October 2009. Although the three children made their home at 34 Peregrine Road and kept their clothes and possessions there, they regularly went to stay with their mother at 34 Mortimer Road.
The council's Housing Department then proceeded to make inquiries concerning Mr Bull and the children pursuant to section 184 of the 1996 Act. They received two statements from Mr Bull and submissions from his solicitors. On 19 th November the Housing Department received an email from the estate manager, stating that Mrs Bull would like the children to come back and live with her permanently. On 11 th December 2009 the Housing Department received a letter from Mrs Bull, stating as follows:
"I am writing regarding my three children, Nikita 16, Kaye 11 and Kade 6. They are now residing with their father Darren Bull at 34 Peregrine Road, BBLeys, OX4 6TJ. Myself and their father Mr Bull are in the process of sorting out visitation, we plan for the children to stay Friday till Sunday overnight one week and the next week they will have one overnight stay. I also have in writing that Mr Bull and I share parental responsibility, I hope this letter helps."
On 18 th December 2009 an Options Officer within the Housing Department issued the council's decision under section 184 of the 1996 Act. This was to the effect that the children did not reside with Mr Bull and so he was not in priority need. Furthermore Mr Bull was intentionally homeless, because he had let the children move into his cramped accommodation at 43 Herschel Road, with the inevitable result that notice to quit was served.
Mr Bull requested a review of that decision pursuant to section 202 of the 1996 Act. The council's Principal Housing Facilitator, Mr O'Malley, duly carried out that review and issued his decision on 17 th February 2010. He essentially came to the same conclusions as the Options Officer had reached on 18 th December 2009. I would summarise Mr O'Malley's reasoning in the review decision as follows:
i) The...
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