Songul Ciftci v The Mayor and Burgesses of London

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lord Justice Moylan,Lord Justice Nugee
Judgment Date26 November 2021
Neutral Citation[2021] EWCA Civ 1772
CourtCourt of Appeal (Civil Division)
Docket NumberCase No:B5/2021/0056

[2021] EWCA Civ 1772

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON

His Honour Judge Hellman

G40CL169

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Moylan

and

Lord Justice Nugee

Case No:B5/2021/0056

Between:
Songul Ciftci
Claimant/Appellant
and
The Mayor and Burgesses of London
Defendant
Borough of Haringey
Respondent

Edward J Fitzpatrick (instructed by Tyrer Roxburgh Solicitors) for the Appellant

Stephen Evans and David Mold (instructed by London Borough of Haringey Corporate Legal Services) for the Respondent

Hearing date: 18 November 2021

Approved Judgment

Lord Justice Lewison

The issue

1

The issue on this appeal is whether the London Borough of Haringey were entitled to conclude that Ms Ciftci was intentionally homeless. That, in turn, depends on whether Haringey were entitled to conclude that her deliberate decision to give up secure accommodation was not to be disregarded on the ground that she was unaware of a relevant fact; and had acted in good faith. HHJ Hellman decided that they were.

2

In a nutshell, Mr Fitzpatrick, who argued this appeal on Ms Ciftci's behalf, says that Haringey made insufficient inquiries into the reason why Ms Ciftci was homeless. If they had, they would have discovered at least the possibility that she was homeless because her plans for future employment and accommodation had failed to work out, even though they were based on genuine investigation. If that had been found, then Ms Ciftci's decision to give up settled accommodation would not have amounted to intentional homelessness because she would have been unaware of a relevant fact and had acted in good faith.

3

At the conclusion of the argument we decided to dismiss the appeal, with written reasons to follow. These are my reasons for joining in that decision.

The legislative framework

4

Part VII of the Housing Act 1996 imposes duties on local authorities to assist the homeless. The highest form of duty is owed to a person who is homeless and has a priority need; but who has not become homeless intentionally: section 193. Section 191 defines what is meant by becoming homeless intentionally. It relevantly 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.”

5

Before reaching a conclusion about what duty (if any) is owed to an applicant the local authority must make such inquiries as are necessary to satisfy themselves whether any duty, and if so what duty, is owed under Part VII of the Act: section 184 (1). If the local authority is satisfied that an applicant is homeless and eligible for assistance, they must assess the circumstances that caused the applicant to become homeless: section 189A (2) (a).

6

If an applicant for assistance is dissatisfied with the local authority's decision, they may ask for a review of that decision: section 202. When a request for a review is made the housing authority must notify the applicant of the right to make representations: Homelessness (Review Procedure etc) Regulations 2018 reg. 5. If the reviewing officer considers that there is a deficiency or irregularity in the original decision, but is minded nonetheless to make a finding which is against the applicant's interest on one or more issues, they must notify the applicant (a) that the reviewer is so minded and the reasons why; and (b) that the applicant or someone on their behalf may make oral or written representations: Homelessness (Review Procedure etc) Regulations 2018 reg 7. This is generally known as a “minded to find” letter. The review decision must give reasons if the review confirms the original decision on any issue adverse to the applicant: section 203. The applicant then has the right to appeal to the county court on any point of law arising from the decision: section 204. On an appeal, the court applies the principles of judicial review.

7

An appeal from the county court to this court is, technically, a second appeal; but the focus for this court is whether the review decision was lawful. The facts are for the reviewing officer. The court has no independent fact-finding function ( R v Hillingdon LBC ex p Pulhofer [1986] AC 484); although a finding of fact may be challenged on public law grounds: Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2006] 2 AC 430, 462.

The case law

8

The apparently simple words of section 191 (2) have become encrusted by case law. In Najim v Enfield LBC [2015] EWCA Civ 319, [2015] HLR 19 Longmore LJ said at [32]:

“… the relevant fact of which a tenant is unaware must, in my view, exist at the time of the deliberate act or omission on his part. The subs.191(2) is intended to deal with genuine mistake or misapprehension of existing fact not with future events which may or may not occur.”

9

In Afonso-da-Trindade v Hackney LBC [2017] EWCA Civ 942, [2017] HLR 37 this court confirmed that Najim was correctly decided. Nevertheless, a simple division between present fact and uncertain future events is not always possible. As Staughton LJ put it in R v LB Ealing ex p Sukhija (1994) 26 HLR 726, 731:

“It is very often possible to dress up some possible or future event as an existing fact, and in some cases it is legitimate to do so.”

10

As the case law has developed it has reached the following position, as Sales LJ explained in Afonso-da-Trindade at [23]:

“[The authorities] all indicate that when an expectation regarding what might happen in the future is falsified, what the court has to look for when assessing whether the applicant was “unaware of any relevant fact” is an active and informed understanding of the applicant, at the time she does or omits to do something within the scope of s.191(1), of the current prospects in relation to that expectation working out as anticipated, where in fact (as judged objectively at that time) there was no good foundation for the applicant's assessment of those prospects.” (Original emphasis)

11

He added at [26]:

“Accordingly, an applicant who seeks to bring herself within s.191(2) where the future has not worked out as expected by her, has to show that at the time of her action or omission to act referred to in s.191(1), she had an active belief that a specific state of affairs would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration. Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of s.191(2).”

12

In Afonso the applicant left settled accommodation in Africa. She came to England to live with her sister because medical treatment for her daughter would be better here. After a few months, her sister's landlord terminated her sister's tenancy because he wanted to refurbish the property, with the consequence that the applicant was homeless. The applicant had not agreed with her sister how long she could stay; and had no clear understanding about how long she could remain with her. The reviewing officer decided that she had come to England “on a wing and a prayer”; and further decided that the fact that she did not fully explore with her sister the nature and extent of the accommodation she would be providing did not amount to a genuine investigation. This court held that the reviewing officer was entitled to come to the conclusion that he did.

13

Other decided cases illustrate that statement of principle. I mention one of them because it is the source of a vivid phrase that the reviewing officer used in the course of the review decision. In Aw-Aden v Birmingham City Council [2005] EWCA Civ 1834 Mr Aw-Aden left settled accommodation in Belgium to look for work in England. The council found that he was intentionally homeless because he had come to England without having made any prior arrangement to secure settled accommodation. He asserted that he was unaware of a relevant fact, namely the true prospect of being able to find work in the Birmingham area and with it the means to pay for suitable accommodation for himself and his family. This court held that an appreciation of the prospect of future housing or future accommodation could amount to a relevant fact provided it was sufficiently specific; and provided it was based on some genuine investigation and not mere aspiration. In so doing this court approved the decision of Carnwath J in R v Westminster City Council ex p Obeid (1996) 269 HLR 389. Maurice Kay LJ said at [11]:

“What is advanced as “relevant fact” lacks the necessary specificity referred to by Carnwath J. Although the appellant's intentions were formed in good faith, his prospects of obtaining suitable employment here when the Belgian accommodation was given up rested on little more than a wing and a prayer. It cannot be said that the original decision-maker or the Review Panel fell into legal error by failing to invoke section 191(2) in favour of the appellant.”

14

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1 cases
  • The King (on the application of Amina Ahamed) v London Borough of Haringey
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 Agosto 2023
    ...to him. In this connection, Lewison LJ, with whom Moylan and Nugee LJJ agreed, explained in Ciftci v Haringey London Borough Council [2021] EWCA Civ 1772, [2022] HLR 9: “34. The duty is not a duty to make all possible inquiries: it is a duty to make necessary inquiries. The general paramet......

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