DELROY STEWART v LONDON BOROUGH OF LAMBETH [2002] EWCA Civ 753

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LAMBETH COUNTY COURT

(His Honour Judge Cox)

[2002] EWCA Civ 753

Case No B2/2001/2812

Venue Royal Courts of Justice, Strand, London WC2, Friday, 26th April 2002

Between

DELROY STEWARTClaimant/Appellant

LONDON BOROUGH OF LAMBETHDefendant/Respondent

Before

Lord Justice Peter Gibson

Lord Justice Jonathan Parker

Lord Justice Longmore

MR JAN LUBA QC and MR SEAN PETTIT (Instructed by Collisons & Co, 1-3 Hildreth Street, Balham,

London SW12 9RQ) appeared on behalf of the Appellant.

MR ANDREW ARDEN QC and MR ALISTAIR REDPATH-STEVENS (Instructed by London Borough of Lambeth, 2-7 Town Hall Parade,

Brixton Hill, London SW2 1RJ) appeared on behalf of the Respondent.

Date 26 April 2002

[1]Friday, 26th April 2002 LORD JUSTICE PETER GIBSON: I will ask Longmore LJ to give the first judgment.

LORD JUSTICE LONGMORE: This appeal raises the question whether a local housing authority was entitled to conclude that a prisoner, who had been sentenced to a term of five years imprisonment and sought to avail himself on release of the provisions of the Housing Act 1996 relating to homelessness, became homeless intentionally. Section 190 of that Act sets out the duties of the local housing authority once they are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

[3]Sections 191(1) and (2) provide:

"(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."

[4]Sections 192 and 193 then make separate provisions for those not in priority need and those who are in priority need.

[5]It is also relevant to be aware of the provisions relating to threatened homelessness. Section 195(1) and (2) provide:

"(1) This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance. (2) If the authority- (a)are satisfied that he has a priority need, and (b) are not satisfied that he became threatened with homelessness intentionally, they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation."

[6]Section 195(5) deals with an applicant who does not have a priority need. Then section 196(1) and (2) provide:(1) A person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave 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."

[7]The facts of the case can be stated shortly. On 10th October 1983 the Lambeth Borough Council, as the local housing authority, granted Mr Delroy Stewart, then aged 27, a secure tenancy of a one-bedroom flat at 30 Elias Place on the Ashmead Estate SW8. He failed to pay his rent punctually, or sometimes at all, and on 27th February 1995 Lambeth gave him notice of their intention to seek possession for non-payment of rent. On 27th August 1997 a county court finally made an order for possession but suspended it on terms that Mr Stewart paid rent thereafter together with instalments of accrued arrears which then amounted to about £368. At about this time Mr Stewart committed an offence of supplying (or possibly conspiring to supply) heroin to another. He was not arrested for the offence until 4th June 1998, but he was thereafter remanded in custody. In due course he was sentenced to a five-year term of imprisonment, which made him a long-term prisoner. He made an arrangement with his sister to continue to maintain his tenancy and (as he told the Oval Neighbourhood Housing Office while he was in prison) to pay the rent of the flat. But the local authority records show that no payment of rent was made while Mr Stewart was in prison.

[8]On 7th February 1999 Lambeth executed, as they were entitled to do, a warrant for possession. In spite of the fact that Mr Stewart was a long-term prisoner, he was released on licence on 8th December 2000 and, three days later, applied to Lambeth for accommodation as a homeless person. On 5th February 2001 Lambeth informed him that they considered he was intentionally homeless. Mr Stewart asked for a review of that decision but the relevant officer, Miss Bourke, on 20th July 2001 maintained Lambeth's original decision. She said in the course of her decision letter inter alia as follows:

"You have stated that you lost the accommodation because you were serving a term of imprisonment for drugs related offences. While you were in prison you were unable to manage your own affairs. The Council accepts that you did make arrangements for your sister to continue to maintain your tenancy during your absence. However, records show that no rent payment was made during the period of your imprisonment. On the basis of the information obtained the Council has decided that your homelessness was caused intentionally and this was a direct result of a deliberate act where you knowingly committed a criminal offence. The consequence of this act led to your imprisonment and your failure to pay your rent. In the light of the above information the Council is satisfied that although your ability to manage your affairs may have been affected due to your prison sentence, you would have been fully aware of your responsibilities as the tenant at the property and of the consequences should you fail to pay your rent. You would also have been aware of the risks involved in participating in criminal activities."

[9]I omit an irrelevant paragraph, and then:

"Your homelessness was caused because of your wilful and persistent failure to pay rent which is a condition of the agreement you signed when you accepted the tenancy. The loss of your accommodation was as a direct result of your deliberate act in knowingly committing a criminal offence for which you received a custodial sentence. By this behaviour you contributed to the loss of 30 Elias Place, London SW8 which was accommodation which was available to you and which would have [been] reasonable for you to continue to occupy."

[10]Mr Stewart appealed to the county court, but on 4th December 2001 His Honour Judge Cox dismissed his appeal. He now appeals to this court.

[11]Mr Jan Luba QC has appeared on Mr Stewart's behalf at extremely short notice. For my part, I am most grateful to him for his concise and attractive submissions which have been put together with great speed. He submitted that the local authority had gone wrong in law in three respects.

[12]First, he submitted that Mr Stewart lost his accommodation, not because he was sent to prison, but because he had omitted to pay rent while he was in prison. That omission was not a deliberate omission because he had made arrangements for his sister to pay the rent; unknown to him those arrangements had broken down while he was in prison, but he only knew about it and about the consequent eviction after they had happened. He was thus not intentionally homeless; this was a matter not considered by the local authority and the case should therefore be remitted to them for reconsideration so that they can decide whether the arrangement was a fanciful arrangement or whether Mr Stewart knew that the arrangement was failing but did nothing to redress the situation. Only if they were able to make such a finding could the local authority decide that Mr Stuart was intentionally homeless. I will call this "the intervening arrangement point".

[13]Second, he submitted that in any event the term of imprisonment of five years, even if one took remission and periods of release on licence into account, was a period of settled accommodation which intervened between Mr Stewart's arrest and his release so that any intentional homelessness arising from his offence was no longer operative; this argument was submitted pursuant to the dictum of Ackner LJ in the Court of Appeal in Din v Wandsworth London Borough Council as set out in Lambert v Ealing London Borough Council

[1982] 1 WLR 550

at 557 and approved by Lord Wilberforce when Din was decided in the House of Lords

[1983] 1 AC 607

at 668. Ackner LJ said of the applicant in that case that having become homeless intentionally he was at a disadvantage.

The Lord Justice continued:

"To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as `a settled residence', as opposed to what from the outset is known (as in Dyson v Kerrier [1980] 1 W.L.R. 1205) to be only temporary accommodation."

[14]I will call this "the settled accommodation point".

[15]Third, Mr Luba submitted that even if, contrary to his second submission, a five-year term of imprisonment could not be said to be settled accommodation, nevertheless that term of imprisonment still broke the chain of causation starting with the commission of the offence and the subsequent arrest, so that a fresh period of what Mr Luba called "untainted homelessness" began on his release. I will call this "the untainted homelessness point". The intervening arrangement point

[16]The question whether a prisoner is or may be intentionally homeless is not virgin territory. In R v Hounslow London Borough Council ex parte R

[1997] 29 HLR 939

R had been convicted of a number of indecent assaults and sentenced to seven years imprisonment. Under the then current arrangements, housing benefit ceased after a year in prison and, realising he would not be able to pay the rent for his dwelling, he surrendered his tenancy. He then applied for accommodation as a homeless person on his release. The local authority decided that his offences were deliberate acts leading to his imprisonment and that the surrender of his tenancy was the "direct and reasonable" result of his criminal offences. R applied for judicial review on the basis that the local authority were not entitled to find that he was intentionally homeless merely because there was an unbroken chain of events leading from his deliberate act of committing the offences, because the test of causation for intentional homelessness was limited by concepts of remoteness, or reasonable likelihood, or public policy. Despite Mr Luba's advocacy for the applicant in the case, Mr Stephen Richards, sitting as a Judge of the Queen's Bench Division, held that in considering whether a person had ceased to occupy the accommodation in consequence of his deliberate conduct, the right question to be asked was whether his ceasing to occupy the accommodation would reasonably have been regarded at the time as a likely consequence of the applicant's deliberate conduct. The test was objective and not subjective. The use of the word "likely" in that formulation thus brought the test for intentional homelessness in what is now section 191 of the 1996 Act and the test for threatened intentional homelessness in what is now section 196 of the 1996 Act into line with one another. The Deputy Judge accepted Mr Luba's submission that some limitation had to be implied into the statutory wording in respect of causation in section 191, and he also accepted Mr Luba's second suggestion as to what that limitation should be. He said at page 947 of the report:

"The second alternative put forward by Mr Luba is a test of `reasonable likelihood'. Within that formulation he encompasses the various expressions used in Robinson v Torbay [1982] 1 All ER 726: `the reasonable result' of the deliberate conduct (as applied to actual homelessness), `the likely result' of such conduct (as applied to threatened homelessness) and the fair-minded bystander saying to himself `he asked for it' (as applied to both contexts). In my view that is a helpful distillation of the approach adopted in Robinson and applied in R v Westminster City Council ex parte Reid [1994] 26 HLR 690 and represents the right test. It ensures a coherent approach as between section 60(1) and section 60(2), meets many of the concerns expressed about findings of intentional homelessness in circumstances where the consequences of the deliberate conduct were unforeseeable, unpredictable or otherwise very remote, and is a workable test for councils to apply. Thus, in considering whether a person ceased to occupy accommodation `in consequence of' his deliberate conduct, the question to be asked is whether his ceasing to occupy the accommodation would reasonably have been regarded at the time as a likely consequence of the deliberate conduct. It is an objective, not a subjective, test. It might be imputed to the fair-minded bystander in possession of all the relevant facts. I do not think it necessary, however, to express the test by reference to the fair-minded bystander and I doubt whether his assistance will often be needed in applying it."

[17]As to the arguments of public policy in relation to the resettlement and rehabilitation of offenders, the learned Deputy

Judge said this at page 948:

"In my judgment the arguments based on public policy do not carry the matter further forward. Considerations of policy may assist in the construction of the statute. Once the statutory provisions have been construed, however, they fall to be applied by local authorities and the courts alike. They cannot be disapplied by reference to the broad concept of public policy. In the present case the policy considerations advanced by Mr Luba do not cause me to doubt the construction of section 60(1) above. The statute lays down no special regime for ex-prisoners and cannot be construed in such a way as to create one. Whether such as those that occurred in the present case - deliberate criminal conduct leading to a prison sentence and loss of accommodation - can justify a finding of intentional homelessness must be determined on the basis of the general test to which I have referred."

[18]Mr Luba said that for the purposes of his argument before us today he did not need to challenge anything said by Mr Richards in ex parte R . For my part, I would approve, adopt and gratefully follow Mr Richards' decision in that case.

[19]Mr Luba, of course, submits that the present case is wholly different because Mr Stewart made the intervening arrangement with his sister which I have described. The failure of that arrangement, he says, was not deliberate, or at least has not been determined by the local authority to have been deliberate, and the matter should be remitted to them for that determination to be made.

[20]I cannot accept that argument for two main reasons: (1)On any sensible view of the matter, the chain of events that ultimately led to Mr Stewart's eviction began with the supply of heroin in respect of which he was in due course convicted. The statute by section 191 requires the local authority to determine whether Mr Stewart deliberately did "anything" in consequence of which he ceased to occupy the accommodation available for his occupation. One thing he deliberately did do was to supply heroin. The consequence of that was (as the local authority have decided) reasonably likely to have been his imprisonment and the loss of his flat by eviction for non-payment of rent. The mere fact that arrangements could have been or were made to avoid or avert the consequences of that eviction, does not mean that the local authority has to address its mind to those subsequent possibilities and decide, if they fail, whether that failure was deliberate or not. On such a view, it might have to make any number of further inquiries of a possibly difficult or delicate nature. An inquiry into whether an applicant such as Mr Stewart might have reason to believe that an arrangement made with a member of his family might or might not be expected to work goes much further than the statute requires. (2)In this case, moreover, the arrangement was in fact ineffectual. Mrs Bourke says in terms in her letter of 20th July 2001 that local authority records show that no rent was paid during the imprisonment. That has not been challenged. It seems to me that an ineffectual arrangement cannot in any way break the natural chain of causation starting with the supply of heroin and ending with Mr Stewart's eviction from his flat for non-payment of rent when he was in prison. If an initially effective arrangement had been made and then later broke down, different considerations might arise. But I do not consider the local authority was in this case under any obligation to consider the arrangement which Mr Stewart said he had made but which never resulted in fact in any payment of rent as being any more than part of the narrative in relation to the events on which they relied to conclude that the loss of Mr Stewart's accommodation was the direct result of his deliberate act. The settled accommodation point

[21]Mr Luba is correct to submit that the local authority did not consider whether Mr Stewart's term in prison constituted settled accommodation, so as to break the chain of causation between(1) eviction from his flat as a result of his deliberate act and

(2) his release from custody and looking for accommodation anew. The question is whether, if they had considered the matter, there would have been any prospect of a different conclusion. In my view there would not. Prison is, to my mind, the opposite of settled accommodation. The prisoner hopes that it will be as temporary as possible. Any such hope on the part of Mr Stewart was triumphantly justified in this case since, although he was sentenced as a long-term prisoner, he appears to have been released only two days after he would have been released if he had been a short-term prisoner. The learned judge, Judge Cox, gave this argument short shrift. He said:

"The position of Mr Stewart upon his incarceration was that first of all I suspect, though I do not know, that, in common with many other prisoners, he would have taken every legitimate means that he considered available to him to curtail the period of his incarceration. I know not whether he appealed or appealed against sentence, but it is to be expected that he might have done. He would have taken steps likewise to obtain release as quickly as he possibly could. He was in fact released after two and a half years of a five year sentence, albeit on licence. During the period that he was incarcerated he was perforce moved from one prison to another. He did not have in any sense a settled home in any one prison, and I have to say that my mind recoils from the idea that a cell in any one prison, for example Brixton, could be regarded as one's home and, as has been pointed out to me by Mr Redpath-Stevens in the skeleton which has placed before me, the concept of accommodation as it is defined in the Oxford English Dictionary involved at least the consideration of having one's habitual residence, house or home. It seems to me that incarceration in one of Her Majesty's prisons is the antithesis of having a home. It is just that. It is incarceration. It is detention against one's will and it seems to me that in those circumstances it cannot be said that that amounts to any sort of accommodation within the expressions used in the Act."

[22]I need only say that I entirely agree. The untainted homelessness point

[23]This is a more general point and arises on the hypothesis that it is (as I consider it is) open to this court to proceed on the basis that other matters beside the obtaining of settled accommodation can break the chain between an original intentional homelessness and a subsequent application to be accommodated. The broad point is that a term of imprisonment should be treated as a factor which supersedes the original homelessness in rather the same way as giving up one's home to go and serve in the Armed Forces or a closed religious order would be. Ingenious as this argument is, I cannot accept it. In the two examples given, the operative cause of the applicant's homelessness would be the decision to leave the Armed Forces or the monastic order at a particular time. In the present case, it was not up to Mr Stewart to decide when or where he would leave prison. As a result of his previous activities, he only came back into society when he was permitted to do so. There is, of course, much to be said for making resettlement of offenders into society easier than it often is, and Mr Luba said some of it in the course of his submissions. But that seems to me a matter of general public policy which this court cannot take into account on an individual application of the present kind for the reasons given by Mr Stephen Richards in his judgment ex parte R which I have recited.

[24]We have been informed that a proposed order is currently before Parliament - the Homelessness (Priority Need for Accommodation) (England) Order of 2001 - and that it provides: "a person who is vulnerable as a result of having served a custodial sentence" is to have a priority need for accommodation. We have not been told that the order contains any qualification or modification of the statutory definition of the circumstances in which a person becomes homeless intentionally. If that is the case, it is presumably deliberate. But, as I say, considerations of this kind cannot govern our decision in this case.

[25]I can detect no error of law in the local housing authority's view, and would dismiss this appeal.

LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be dismissed for the reasons my Lord has given. I add a few words of my own on what my Lord has called "the intervening arrangement point".

[27]As my Lord has said, the local authority's decision on review was that the appellant's homelessness was as a direct result of his deliberate act in knowingly committing a criminal offence. That in my judgment was a decision which the local authority was fully entitled to make on the factual material before it. There is, in my judgment, a direct chain of causation leading from the offence to the appellant's eviction from the flat in February 1999. Starting with the offence, the links in that chain are the appellant's imprisonment in respect of that offence, initially on remand and subsequently on conviction, which in turn led directly, as his solicitors positively asserted in their letter to the local authority dated 21st February 2001 (page 64 of our bundle), to the non-payment of rent, which in turn led to his eviction. Any arrangements which the appellant may have made for the rent to be paid by a third party are, in my judgment, nothing to the point. The fact is that the rent was not paid, and the chain of causation which I have identified remains unaffected. Nor, in my judgment, can the appellant avail himself of section 191(2) of the Housing Act 1996. The act which started the chain of causation was the deliberate commission of the offence. That could not on any footing be described as "an act in good faith on the part of a person who was unaware of [a] relevant fact" within the meaning of the subsection. If it be the case that the appellant was unaware that his sister was not paying the rent, that again is nothing to the point, in my judgment. The appellant's mistaken belief that she was paying the rent could not serve to break the chain of causation, nor could it affect the deliberate nature of the act which started that chain of causation, namely the commission of the offence.

LORD JUSTICE PETER GIBSON: I also agree that this appeal fails. In deference to Mr Luba's well-marshalled arguments, I too add a few words of my own.

[29]It is common ground that this appeal turns on the application of section 191(1) of the Housing Act 1996, with its definition of intentional homelessness, to the facts of the case.

[30]Mr Luba submitted that the appellant's homelessness application gave rise to two questions of causation: (1) What act or omission caused the appellant's eviction from his home in February 1990? (2)If the relevant act or omission was deliberate so that the accommodation lost was lost intentionally, was that act or omission still the material cause of the appellant's homelessness in December 2000?

[31]It was Mr Luba's submission that the accommodation which otherwise was available for the appellant's occupation and which otherwise would have been reasonable for him to have continued to occupy, was lost in consequence of an omission on his part to make the payments due in respect of the accommodation. He argued that that was the consequence of the failure of the arrangement, which the respondents as the local housing authority had accepted that the appellant had made with his sister, that she should pay the rent of his flat while he was in prison. Mr Luba pointed to section 191(2) and its requirement that for the purposes of subsection (1) an omission in good faith on the part of a person who was unaware of any relevant fact should not be treated as deliberate. He said that the question was whether the appellant knew that his sister had not made payment or the arrangement was doomed from the outset. That question, he said, had not been investigated by the respondents, nor was it addressed in any of the respondents' decision letters. He therefore asked that the decision of the respondents upon the review of the decision that the appellant was intentionally homeless be quashed and that the matter be remitted for further consideration.

[32]Attractively though this argument was presented, I am not persuaded by it. It has to be borne in mind that it is for the local housing authority to make inquiries to "satisfy themselves" whether an applicant claiming to be homeless is eligible for assistance, and, if so, whether any, and if so what, duty is owed to him: section 184(1). Thus, the decision on the issues of fact to which the application of the statutory definition of intentional homelessness gives rise is left by Parliament to the local authority. In the present case, it was the respondents' decision that the relevant deliberate act in consequence of which the appellant ceased to occupy the accommodation was the knowing commission of the criminal offence which led to his being convicted and imprisoned, and to his failure to pay rent and to his consequent eviction. His solicitors when asking for a review appeared to accept this chain of causation when they said (letter of 21st February 2001):

"Unfortunately Mr Stewart was committed to prison and during his absence from the property his sister was unable to make the full rent payments which led to the order for possession being made. If Mr Stewart had been at home he would never have allowed the situation to deteriorate to the point where possession was granted against him."

[33]In my opinion section 191(2) and the omission by the appellant to make payment because of the failure by his sister to do what she had been asked to do under the arrangement are not relevant to the present case. Section 191(2) only applies to acts or omissions relevant for the purposes of section 191(1) and, unless it could be said that the crime committed by the appellant could not be the act in consequence of which he ceased to occupy the accommodation, the ineffective arrangement made by the appellant with his sister has no relevance. In my judgment, it cannot be said that the view that the chain of causation should start with the crime was one that was unreasonable. There was no need for the respondents to investigate why the arrangement failed. The fact is that it did fail. That failure did not make the causative event relied on by the respondents cease to be causative of the eviction.

[34]On the other points argued on this appeal, I am in entire agreement with what my Lord, Longmore LJ, has said.

[35]For these as well as the reasons given by my Lords, I too would dismiss this appeal.

Order

Appeal dismissed. Order as drafted and agreed by counsel. Public funding assessment of the appellant's costs. Application for permission to appeal to the House of Lords refused.