Watchman v Ipswich Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,Lord Justice Laws,Lord Justice Carnwath,Lord Justice Moore-Bick |
| Judgment Date | 08 February 2007 |
| Neutral Citation | [2006] EWCA Civ 1376,[2007] EWCA Civ 348 |
| Date | 08 February 2007 |
| Docket Number | Case No: B2/2006/1209, B2/2006/1209(A),B2/2006/1209 |
| Court | Court of Appeal (Civil Division) |
[2006] EWCA Civ 1376
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IPSWICH COUNTY COURT
(HIS HONOUR JUDGE THOMPSON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Auld
B2/2006/1209
MR D CARTER (instructed by Messrs Kerseys, Ipswich) appeared on behalf of the Applicant
MR W BEGLAN (instructed by Legal Services, Ipswich Borough Council) appeared on behalf of the Respondent
1. This is an application advanced by Mr Carter on behalf of Jennifer Watchman from a decision of a local authority, the Ipswich Borough Council, refusing to provide her and her husband with housing assistance under the Housing Act 1996 because, in the Council's view, they were intentionally homeless as defined by section 191(1) of the Act. That provision reads:
"A person is homeless intentionally if he has deliberately done or failed to do something in consequence of which he ceases to occupy accommodation which is available for his occupation, and which it would be reasonable for him to continue to occupy."
The circumstances giving rise to the decision of Judge Thompson dismissing her appeal against the decision of the housing authority was that she and her husband, who between them had five children, in March of 2004 purchased a house, of which they were then tenants, from the housing authority with the aid of a mortgage. The husband at that time had a job, and they took the view that they could just about manage on his earnings to meet the mortgage obligations. There is no doubt that the finances of the transaction were tight, but there was a significant surplus of his earnings over the mortgage commitments which were payable monthly. Unfortunately, some five months later, in August 2004, he lost his job and they could not continue to make the payments that until then they had made each month. In consequence, the mortgagee obtained an order for possession of the property.
Mrs Watchman then applied to the housing authority, seeking housing assistance under the Act because they were homeless. As I have said, the housing authority decided that they had become intentionally homeless. The Council's reason was that they had taken out a mortgage obligation that they could not afford. Mrs Watchman challenged that decision and the housing authority, on an internal review, upheld it.
The question asked by the Council's reviewer, Mr Howarth, was whether undertaking a mortgage commitment that they could not reasonably expect to be able to sustain and thus eventually likely to lead to the cause of their becoming homeless, was broken by Mr Watchman's loss of his job some five months later. He set out factors for and against Mrs Watchman on that issue, including in the factors against, a break in the chain of causation by the supervening unemployment, references to their previous financial history and unsatisfactory record in meeting rental payments. He eventually concluded against her claim, stating:
"Having weighed all of these factors up, I have concluded that Mr Watchman's unemployment did not break the chain of causation. A proper analysis of your client's financial position when the mortgage was taken out, and a proper consideration of the financial commitment they were taking on reveals to me that it was inevitable that your client would get into severe financial difficulties within a relatively short period of the mortgage being taken out. My conclusion is that Mr Watchman's unemployment simply accelerated this process, but did not actually cause it."
5. Mr Carter acknowledges that a decision made, which, whilst not intended by an applicant for housing assistance to render him or herself homeless, can have that consequence when it is open to the housing authority under section 191(1) of the Act to conclude that he or she has rendered themselves homeless intentionally. However, he submits that here it is evident from the reasoning of the housing authority, expressed in those words of Mr Howarth, that it has had regard not to the cause of homelessness at the time it occurred, but as to what might have happened later if Mrs Watchman's husband had not become unemployed when he did. He submits that the conclusion of Mr Howarth, that the unemployment simply accelerated the process from what would otherwise have been later homelessness, was to take into account an irrelevant consideration under section 191, so as not to accord with the need to address the cause of homelessness at the time it actually occurred; the effect, he says, of the ruling of the House of Lords in the case of Din.
Mr Beglan, for the housing authority, submitted that Mr Watchman's supervening unemployment did not break the chain of causation from an unreasonable decision originally made in taking out the mortgage obligation. He maintains that it was simply one of two causes of intentional homelessness.
Well, it was certainly one of two causes of homelessness, but was it, at the time when Mr and Mrs Watchman become homeless, one of two causes of intentional homelessness?
I feel unease about the suggestion that it is implicit in section 191(1) of the Act that a person who makes an unwise commitment, which he might or might not have been able to meet, should be capable of being found intentionally homeless if some later event turns the possibility or probability of homelessness at some time into actuality at the time of that event.
It seems to me that the operation of the statutory provision and the reasoning of their Lordships in Din, where the facts were somewhat different, raise an important point of principle which must arise for consideration frequently in those cases where mortgage commitments are undertaken which, for one reason or another, subsequently cannot be met.
However, I have to remember, as Mr Beglan has pointed out, and indeed Mr Carter has acknowledged, that decisions on these matters, sometimes on the borderline are often difficult, and should, wherever appropriate, be left to the housing authorities who are familiar with these problems and who have to administer public finances. Mr Howarth's view was that, in this case, for the reasons he gave, it was inevitable that the Watchmans would get into severe financial difficulties at some time within, as he put it, "a relatively short period". But who knows when or how short that period might have led to the homelessness if Mr Watchman had not lost his job when he did. It seems to me that there is at least an arguable case that the reasoning of the housing authority, looking at what it considered would have happened at some time after the actual event of homelessness but for Mr Watchman's unemployment, was not a proper application to the facts of this case of section 191(1) . Accordingly, I grant permission to appeal.
[2007] EWCA Civ 348
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IPSWICH COUNTY COURT
(HIS HONOUR JUDGE THOMPSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Carnwath and
Lord Justice Moore-Bick
Case No: B2/2006/1209, B2/2006/1209(A)
MR D CARTER (instructed by Kerseys) appeared on behalf of the Appellant.
MR W BEGLAN (instructed by Ipswich Borough Council) appeared on behalf of the Respondent.
This is an appeal with permission granted by Auld LJ on 26 September 2006 against the judgment of HHJ Thompson given in the Ipswich County Court on 12 May 2006, by which he dismissed the appellant's appeal against a review decision of the respondent Local Housing Authority. That decision had been taken on 7 March 2006 under section 202 of the Housing Act 1996. It was to the effect that the respondent Authority did not owe to the appellant a duty under section 193 of the 1996 Act to provide her with accommodation as a homeless person because she had become homeless intentionally.
The homeless persons legislation is now contained in Part 7 of the 1996 Act as amended by the Homelessness Act 2002. It is not necessary to cite the statutory scheme at any length. If an applicant for housing under the scheme is found to be in what is called priority need, a term of art whose definition however I need not set out, then there is a duty upon the local authority to provide suitable accommodation unless they are satisfied that the applicant is intentionally homeless. Section 191(1) provides:
“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.”
Section 202(1)(a) confers a right upon an applicant to request a review of:
“any decision of a local housing authority as to his eligibility to assistance under the scheme.”
Section 202 subsection (4) imposes a duty to conduct such a review on a request being made.
Section 204 (1)(a) confers a right of appeal to the County Court upon an applicant who is dissatisfied with the decision on such a review. It is well settled that the County Court's jurisdiction under section 204 is a statutory form of judicial review (see for example Nipa Begum v The London Borough of Tower Hamlets [2000] 1 WLR 306).
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