William v Wandsworth London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Sedley,Lady Justice Arden |
| Judgment Date | 04 May 2006 |
| Neutral Citation | [2006] EWCA Civ 535 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2005/1991 |
| Date | 04 May 2006 |
[2006] EWCA Civ 535
Lord Justice Chadwick
Lord Justice Sedley and
Lady Justice Arden
Case No: B2/2005/1991
Case No: B2/2005/2082
Mr David Lintott (instructed by Ashfords, Ashford House, Grenadier Road, Exeter, EX1 3LH) for the Appellant, London Borough of Wandsworth
Mr Matthew Hutchings (instructed by Mr T M Welsh, Civic Centre, Lampton Road, Hounslow, TW3 4DN) for the Appellant, London Borough of Hounslow
Mr David Carter (instructed by Flack & Co, Gardiner House, 3–9 Broomhill Road, Wandsworth, London SW18 4JQ) for the Respondent, Adel William
Mr Jan Luba QC (instructed by West London Law Solicitors, Boundary House, Boston Road, London W7 2QE) for the Respondent, Donna Bellamy
These two appeals are from orders made in the county court on appeals under section 204 of the Housing Act 1996. They each raise the question whether the judge was correct to set aside a decision by the appellant council, as local housing authority, that the applicant had become homeless intentionally. When giving permission to appeal to this Court Lord Justice Neuberger directed that the two appeals be listed for hearing together.
The statutory framework
The duties cast upon a local housing authority in relation to homelessness are now found in Part VII of the Housing Act 1996 as amended by the Homelessness Act 2002. Section 183(1) of the 1996 Act provides that the provisions following that section apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness. Section 184(1) requires that, in such a case, the authority "shall make such inquiries as are necessary to satisfy themselves – (a) whether [the applicant] 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 Part VII]". Section 182 of the 1996 Act requires that, in the exercise of their functions, the authority must have regard to such guidance as may from time to time be given by the Secretary of State.
On completing their inquiries the authority must notify the applicant of their decision and, so far as any issue is decided against his interests, must inform him of the reasons for their decision – section 184(3) . A notice under section 184(3) must also inform the applicant of his right to request a review of the decision under section 202 of the 1996 Act. That section is in these terms (so far as material) :
"202(1) An applicant has a right to request a review of –
(a) . . . ,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness) ,
(c) . . .
. . .
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority . . . concerned shall review their decision."
In carrying out their review the authority must comply with regulations made by the Secretary of State – section 203(1) of the Act. The regulations in force at the material time were those set out in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71). On completion of the review the authority must notify the applicant of their decision – section 203(3) of the Act. If the decision is to confirm the original decision on any issue against the interests of the applicant they must notify him of the reasons for the decision—section 203(4) ; and they must inform him of his right to appeal to the county court on a point of law – section 203(5) .
Intentional Homelessness
In order to satisfy themselves what duty (if any) is owed to an applicant whom they have found to be homeless, the authority must satisfy themselves whether or not the applicant became homeless intentionally. In such a case the inquiries to be made under section 184(1) of the 1996 Act must include "such inquiries as are necessary" for that purpose. The need for the authority to satisfy themselves as to intentional homelessness (or otherwise) arises from the different duties which are owed, on the one hand, to those who become homeless intentionally and, on the other hand, to those whose homelessness is not intentional. The different duties are set out in section 192 ("Duty to persons becoming homeless intentionally") , section 192 ("Duty to persons not in priority need who are not homeless intentionally") and section 193 ("Duties to persons with priority need who are not homeless intentionally") .
The significant difference, in the present context, is that a person with priority need who has become homeless intentionally is owed only the limited duty set out in section 190(2) : to secure that accommodation is available for his occupation for such period as the authority consider will give him a reasonable opportunity of securing accommodation for his occupation. That may be compared with the 'full' housing duty owed to a person in priority need whose homelessness is not intentional, which is set out in section 193(2) : to secure that accommodation is available for occupation by the applicant. In practice, the difference is between providing temporary accommodation – perhaps in bed and breakfast or hostel accommodation – and providing long term accommodation – perhaps from the authority's own housing stock, or through a housing association.
The question whether the applicant has become homeless intentionally is for the local housing authority to determine. This is emphasised both by section 190(1) and by section 193(1) :
"190(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally."
"193(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."
Section 191 of the Act explains what is meant by "becoming homeless intentionally":
"191(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 be 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.
(3) A person shall be treated as becoming homeless intentionally if –
(a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and
(b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part,
and there is no other good reason why he is homeless."
Section 191 must be read with the relevant code of guidance issued under section 182 of the Act and with the Homelessness (Suitability of Accommodation) (England) Order 1996 (SI 1996/3204).
Chapter 7 of the Homelessness Code of Guidance for Local Authorities, issued by the Secretary of State in July 2002, addresses 'Intentional Homelessness'. Paragraph 7.2 is in these terms:
"7.2 It is for housing authorities to satisfy themselves whether an applicant is homeless or threatened with homelessness intentionally. Generally, it is not for applicants to 'prove their case'."
Paragraph 7.4 requires that:
"7.4 Where reaching a decision that an applicant became homeless or threatened with homelessness intentionally, housing authorities must give clear reasons for their decision."
Paragraph 7.11 emphasises that the act or omission that led to homelessness must have been deliberate, and that applicants must always be given the opportunity to explain such behaviour: an act or omission is not to be treated as deliberate, even when deliberately carried out, if it was forced upon the applicant through no fault of his own – for example where non-payment of rent was the result of poverty. The concept of an act which is to be treated as non-deliberate although deliberately carried out is developed in paragraph 7.13:
"7.13 An applicant's actions may not amount to intentional homelessness where he or she has lost his or her home, or was obliged to sell it, because of rent or mortgage arrears resulting from significant financial difficulties, and the applicant was genuinely unable to keep up the rent or mortgage payments even after claiming benefits, and no further financial help was available. In such cases which involve mortgagors, housing authorities will need to look at the applicant's ability to pay the mortgage commitment when it was taken on, given the applicant's financial circumstances at the time."
But paragraph 7.14 confirms that an applicant's decision to sell his home in circumstances where he is under no risk of losing it, or an applicant's wilful...
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