Knight v Vale Royal Borough Council [2003] EWCA Civ 1258

Case No B2/2003/0202

[2003] EWCA Civ 1258

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL ( CIVIL DIVISION)

ON APPEAL FROM HIS HONOUR JUDGE HUGHES

WARRINGTON COUNTY COURT

Venue Royal Courts of Justice

Strand,

London, WC2A 2LL

Date Thursday 31 st July 2003

Before

LORD JUSTICE PILL

LORD JUSTICE LAWS

SIR MARTIN NOURSE

Between

Katie Ann KnightAppellant

Vale Royal Borough CouncilRespondent

(Transcript of the Handed Down Judgment of

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David Watkinson and Alex Durance (instructed by Shelter, Chester) for Appellants

Andrew Clark (instructed by Legal Department, Vale Royal Borough Council) for Respondents

Judgment

As Approved by the Court

JUDGMENT OF THE COURT

[1]The subject of this appeal is intentional homelessness. By letter dated 22nd March 2002 the respondents, Vale Royal Borough Council (“the Council”), pursuant to section 184(6) of the Housing Act 1996 (“the 1996 Act”), notified the appellant, Katie-Ann Knight, of their decision (“the first decision”) that, although she was eligible for assistance, homeless and in priority need, she had become homeless intentionally within section 191 of the 1996 Act. The letter informed Miss Knight of the reasons for the decision and of her right to request a review of it under section 202 of the 1996 Act. No review was requested, and Miss Knight no longer questions the first decision.

[2]The question we have to decide is whether Miss Knight has since achieved a “settled residence”, sufficient to displace her intentional homelessness within the principle first stated by Ackner LJ in Din v Wandsworth London Borough Council (23rd June 1981 unreported) and since approved by Lord Wilberforce (one of the majority) in the House of Lords in that case

[1983] 1 AC 657

, 668 and by Lord Hofmann (with whom all their Lordships agreed) in R v Brent London Borough Councilex parte Awua [1996) AC 55, 69.

[3]By a further letter dated 16th October 2002 the Council notified Miss Knight of their decision (“the second decision”) that she had not achieved a settled residence in the meantime and that the first decision still stood. On this occasion Miss Knight requested a review. By third a letter dated 4th November 2002 the Council notified her that the second decision was confirmed.

[4]Miss Knight appealed to the Warrington County Court against the second decision pursuant to section 204 of the 1996 Act. Her appeal came before His Honour Judge Hughes, who, on 20th January 2003, dismissed it and refused permission to appeal. Miss Knight then applied to this court for permission, her application being treated as one for a second appeal. On 22nd February 2003 Lord Justice Clarke, being of the opinion that the appeal would raise an important point of principle or practice, granted permission.

[5]Before the judge it was submitted on behalf of Miss Knight, as a preliminary point, that the court could and should consider the first decision as part of the appeal against the second decision. That submission was resisted by the Council, but the judge thought it obvious, in the circumstances of the case, that the first decision had been adopted by the Council as part of the second decision. He therefore decided the preliminary point in favour of Miss Knight and, having done so, held that the first decision was arrived at properly and without error. As already stated, the first decision is no longer questioned by Miss Knight.

The facts

[6]In the circumstances, it is unnecessary for the facts to be stated as fully as they were stated by the judge. We must, however, give some account of the events which led to the second decision.

[7]On 10th September 2001 Miss Knight, then aged 18, became an assured tenant of 60 Arkwright Close, Winsford in Cheshire. She held the tenancy jointly with her then partner, Brian Campbell. Towards the end of October 2001, less than two months later, they left that address. Miss Knight said in her witness statement that that was because of harassment and threats of violence from Mr Campbell’s father. She added that by reason of the circumstances surrounding their departure their relationship broke down. At first Miss Knight was housed in women’s refuges in Northwich and Leigh. At the beginning of January 2002, being then about 7 months pregnant, she went to stay with her parents near Northwich. That could only be on a temporary basis because the house was small with only two bedrooms and Miss Knight’s sister lived there as well.

[8]On 2nd March 2002 Miss Knight gave birth to a son, Correy. Within a week she had made an application to the Council for herself and her son to be treated as a homeless family under the 1996 Act. It was that application that was refused by the first decision, on the ground that it would have been reasonable for her to continue to occupy 60 Arkwright Close.

[9]The story can be taken up in the words of Miss Knight’s witness statement:

“11. Thankfully I then managed to secure a private sector assured shorthold tenancy at 46 Solvay Road, Winnington, Northwich. The landlord, Mr Robinson, did tell me that he would be requiring the accommodation after a period of six months and on 29th August 2002 he served a valid notice to quit…..”

The notice to quit took effect on 31st October 2002.

[10]When the matter was being considered by the Council in October and November 2002, also at the hearing before the judge, it seems to have been assumed that there was no written tenancy agreement between Mr Robinson and Miss Knight, nor any written evidence of its terms. However, subsequent to the hearing before the judge, Miss Knight’s solicitor obtained from the Council’s Housing Benefits Department a copy of a letter dated 29th April 2002 from Mr Robinson to that department which reads:

“I am writing to confirm that from 1st May 2002 that Katie Ann Knight will be taking up residence of my property at 46 Solvay Road Winnington Northwich CW8 4DR. The rent payable is £360.00 per four weeks including water rates. The above property is fully furnished and it is to be taken on a six monthly renegotiable contract.”

The letter was signed by both Mr Robinson and Miss Knight. It appears that the original had been sent by Miss Knight to the Housing Benefits Department, and she no doubt had forgotten its existence.

[11]Not surprisingly, Miss Knight applied for leave to adduce the letter of 29th April 2002 as fresh evidence in this court. Surprisingly, as we thought, the application was resisted by the Council on the principles of Ladd v Marshall

[1954] 1 WLR 1489

, primarily on the ground that the letter would probably not have an important influence on the result of the case. It seemed to us to be quite wrong that the appeal should be considered without taking into account a highly relevant document which had throughout been in the possession of the Council, albeit in a department other than that which had had to consider Miss Knight’s homelessness application. We therefore granted the application.

[12]It is necessary to refer to further evidence relied on by the Council in order to establish that, notwithstanding the terms of the letter of 29th April 2002, Miss Knight’s tenancy of 46 Solvay Road was intended both by her and by Mr Robinson to last for six months and no more. First, there is para 11 of Miss Knight’s witness statement, which we have already read. Secondly, a note of an interview with Miss Knight and her mother conducted on behalf of the Council on 1st October 2002 records the following:

“She signed a six month tenancy agreement but the landlord advised them when Katie moved in that he wanted to sell it after October. Katie knew that she would be there for 6 months but probably no longer than that.”

Thirdly, in response to a letter written to him by the Council on 2nd October, Mr Robinson telephoned the Council and said that Miss Knight was fully aware that the tenancy would not be extended when she moved in. In a confirmatory letter dated 4th October 2002 Mr Robinson said that the tenancy was for 6 months and would end on 31st October 2002. He added:

“The tenancy agreement has ended due to my wanting the property; Miss Knight knew this at the time of signing the agreement”

. Fourthly, Mr Robinson provided Miss Knight with a typed document dated 19th July 2002, addressed to her and headed with a reference to a tenancy agreement for 46 Solvay Road. The document stated:

“The tenancy agreement is for 6 months commencing 1st May 2002 to 31st October 2002. This agreement will not be extended. The property to be vacated on 1st November 2002. All damages to be made good before vacating the property. Please sign and return.”

There were then spaces for the signatures of Mr Robinson and Miss Knight. The document, unsigned by either party, appears to have been sent, presumably by Miss Knight, to the housing trust then acting as agent for the Council. Please sign and return.”

[13]Finally, we must refer to the material terms of the Council’s letter dated 16th October 2002 notifying Miss Knight of the second decision, also of the letter dated 29th October 2002 requesting a review of that decision and the Council’s letter dated 4th November 2002 confirming it. The letter of 16th October contained the following:

“As you are aware you were found to be intentionally homeless on 22 March 2002….. In spite of you finding accommodation in the interim at your parents and at your current assured shorthold tenancy, there is still a causal link and your original cause of homelessness still stands, as does the decision of intentional homelessness.”

The letter of 29th October contained the following:

“The 1996 Housing Act introduced an assured shorthold tenancy of a term no less than 6 months by default. It is therefore well established that 6 months is recognised as sufficient fixed term. We would therefore assert that the Solvay Road property has broken the train of causation and that there is no causal link between this and her former tenancy.”

The letter of 4th November, having referred to the case of Crooks (see below), contained the following:

“Ms Knight and her mother reported during the homelessness interview with Rachael Beresford that the arrangement would last no longer than 6 months. Furthermore the landlord confirmed this detail. Regardless of whether the landlord’s circumstances have changed he made it quite clear from the beginning that the tenancy would be for a 6 month fixed period as there was no prospect of renewal after the initial fixed term. If the landlord had not advised your client and Housing Advice that the tenancy would expire after 6 months I would agree with your argument that the accommodation was settled. I therefore conclude from the above information that this accommodation cannot be considered settled accommodation and should be deemed temporary.”

(emphasis added.)

The decision of the judge

[14]The judge said that the question turned on whether Miss Knight’s stay at 46 Solvay Road could be regarded as settled as opposed to temporary accommodation. He said:

“Having considered the submissions of counsel, my conclusion is that on the second issue the court has to be concerned with whether the local authority made a decision which it was reasonable for it to make taking into account all the relevant facts when it decided that the six-month stay at 46 Solvay Road was not settled accommodation. I am satisfied and find that the tenancy at that address was never going to be for a period longer than six months, that there was never a prospect that the period would be extended. I am further satisfied that these circumstances were known to the appellant before she moved in to 46 Solvay Road, her own witness statement at paragraph 11 confirms this to be the position.”

Having read the material passage in the speech of Lord Hoffmann in R v Brent London Borough Council (supra)

the judge continued:

“There is nothing, it seems to me, in this case of Brent or in any other case that I am aware of which undermines the proposition that whereas a shorthold tenancy is capable of amounting to settled accommodation, whether it does so in a particular case depends on an analysis of the facts of the particular case.”

The judge was satisfied that the accommodation at 46 Solvay Road could not be regarded as settled. He added that on 1st May 2002 it would have been plain to everybody, and particularly to Miss Knight and Mr Robinson, that “the accommodation was being offered only temporarily for the shortest of periods, only six months, and that there would be no extension”.

Miss Knight’s case in this court

[15]In this court we have had the advantage of a supplementary skeleton argument prepared on Miss Knight’s behalf by Mr Luba QC and Mr Durance. Mr Luba did not appear in the court below, where Miss Knight was represented by Mr Durance. Mr Luba having been unable to appear in this court, Miss Knight has been represented by Mr Watkinson and Mr Durant.

[16]Counsel’s primary submission is that, in present conditions, the occupation by a tenant of accommodation let on an assured shorthold tenancy is, as a matter of law, always sufficient to constitute settled accommodation for the purposes of breaking a chain of causation from past intentional homelessness. Their alternative submission is that Mr Robinson’s letter of 29th April 2002, containing the statement that 46 Solvay Road was to be taken “on a six monthly renegotiable contract”, would, had it been taken into account by the Council in coming to the second decision, have caused them to decide that Miss Knight was occupying 46 Solvay Road as settled accommodation. On that footing Miss Knight would ask for the matter to be referred to the Council for reconsideration. It must be emphasised that she does not contend that, without the letter of 29th April 2002, the second decision would have been reviewable.

[17]It is necessary to consider the supplementary skeleton argument with some care. It starts by describing the evolution of the assured shorthold tenancy from its introduction by the Housing Act 1988 (“the 1988 Act”) to the modifications made by the 1996 Act, the result being, it is said, that any private letting after February 1997, even on an oral weekly tenancy, normally establishes an assured shorthold tenancy of the new model; see what is now section 19A of the 1988 Act. For present purposes, the important feature is that what is now section 21(5) of the 1988 Act ensures that any possession order granted in respect of an assured shorthold tenancy cannot take effect before a date six months from its commencement. It is said that the assured shorthold tenancy is now the form of tenure commonly available as a matter of practice and law in the private rented sector, there being about 1.25 million properties let on such tenancies at any one time.

[18]The supplementary skeleton argument then turns to the statutory arrangements for the homeless, which originated in the Housing (Homeless Persons) Act 1977 and are now contained in part VII of the 1996 Act. It also refers to the successive Codes of Guidance and to Law Commission Consultation Paper 162 (March 2002). The proposition which is sought to be established is that, in current conditions, if the applicant has occupied accommodation let on an assured shorthold tenancy, such accommodation automatically constitutes settled accommodation for the purposes of breaking a chain of causation from past intentional homelessness.

[19]In his oral submissions Mr Watkinson adopted the submissions in the supplementary skeleton argument. He also referred to further passages in the Law Commission Consultation Paper and to the addition of subsection (7)(b) to section 193 of the 1996 Act. He said that the latter provision, by recognising that a local authority’s duty to persons with priority need who are not homeless intentionally could be discharged by the offer of an assured shorthold tenancy, was an indication that such tenure constituted settled accommodation..

The law

[20]This is what Ackner LJ said in Din v Wandsworth Borough Council (23rd June 1981 unreported):

“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’s case [1980] 1 WLR 1205) to be only temporary accommodation. What amounts to ‘a settled residence’ is a question of fact and degree depending upon the circumstances of each individual case. I can see no reason why the good sense of the local authority cannot be relied upon for making the right decision. There is always the court’s supervisory jurisdiction upon which an unsuccessful applicant can, in a proper case, rely.”

So the question is one of fact and degree to be decided by the local authority, whose decision will only be reviewed by the court on Wednesbury principles. It must be emphasised that the concept of settled residence has no statutory origin. It has been developed by the courts as an aid to determining whether there has been a break in a chain of causation from past intentional homelessness.

[21]We have been referred to a number of other authorities, none of which is directly in point. The only case in which an assured shorthold tenancy has been expressly considered in this context is R v Rochester-upon-Medway City Council, ex p. Williams

(1994) 26 HLR 588

, where the applicant was granted a twelve-months’ assured shorthold tenancy under section 20 of the (unamended) 1988 Act, the effect of which, as Auld J said (p 590), “was to give her security of tenure for at least a year and the potential of the tenancy continuing thereafter subject to its termination on two months’ notice from the landlord or by her”. After ten months the landlord notified the applicant under section 21(1)(b) of his intention to terminate the tenancy at the end of the twelve months’ fixed term. The applicant argued that the house comprised in the assured shorthold tenancy should not be treated as settled accommodation. That argument was rejected by the judge, who said, at p 594:

“There is no justification for the applicant’s contention that the Council should have disregarded her assured shorthold tenancy of that property and gone back to her departure from her previous secured tenancy at the start of her homelessness.”

[22]In R v London Borough of Wandsworth, ex p Crooks and ors

(1995) 26 HLR 660

, a decision of Sir Louis Blom-Cooper QC sitting as a deputy judge of the Queen’s Bench Division, the court was concerned not with intentional homelessness but with the discharge of the local authority’s housing duty. At p 668 the judge recorded a concession that an assured shorthold tenancy, as such, was capable of qualifying as settled accommodation. At p 669 he said:

“An assured shorthold tenancy is the most common method of letting property in the private sector. Tenancies of relative short duration – 12 or 18 months – can and do continue beyond the term of the tenancy, subject always to the right of the landlord to regain possession at any time. Thus a tenant under an assured tenancy can obtain “settled” accommodation, either possibly within the period of the tenancy or beyond it.”

[23]These and other authorities cited to us are not of great assistance in the present case. The most that can be said of them is that in Williams a twelve months’ assured shorthold tenancy was held to be settled accommodation. In Crooks where the question was different,

the judge referred to:

“tenancies of relatively short duration – 12 or 18 months” and to the possibility of the tenant obtaining settled accommodation “either possibly within the period of the term of the tenancy or beyond it”

. Those observations were both obiter and tentative. They can perhaps be relied on as showing that the judge would have thought that a six month period would have been altogether too short to constitute settled accommodation. It appears that that may well have been the view of Judge Hughes, who referred to the accommodation being offered “only temporarily for the shortest of periods, only six months”.

Decision

[24]In our judgment the occupation by a tenant of accommodation let on a six months’ assured shorthold tenancy is capable of constituting settled accommodation for the purposes of breaking a chain of causation from past intentional homelessness. We do not think it is right, just because six months is the minimum period required, to assume that occupation for such a period is likely to be temporary rather than settled. Indeed, we agree with counsel for Miss Knight that tenure equivalent to the prevailing tenure in the private rented sector is likely to be settled rather than temporary. From their letter of 4th November 2002 that appears to have been the view of the Council in the present case.

[25]What we cannot accept is that the occupation by a tenant of accommodation let on a six months’ assured shorthold tenancy is, as a matter of law, always sufficient to constitute settled accommodation. The question remains one of fact and degree to be determined by the local authority in the circumstances of the particular case. While we accept that the existence of an assured shorthold tenancy will normally be a significant pointer to the accommodation being settled, we reject the primary submission of counsel for Miss Knight.

[26]As to their alternative submission, the question is whether there is a real possibility that Mr Robinson’s letter of 29th April 2002, had it been before the Council when they made the second decision, would have caused them to decide that Miss Knight was occupying 46 Solvay Road as settled and not temporary accommodation. We answer that question in the negative on the simple ground that the material words in the letter, sc “the above property……….. is to be taken on a six monthly renegotiable contract” could not reasonably have been taken to override or modify the mutual intention of the parties as disclosed by the other evidence which was before the Council. The probability is that those words did no more than recognise the realities of an assured shorthold tenancy. Whatever they may have been intended to mean, they cannot have the force and effect which counsel for Miss Knight would ascribe to them. Accordingly, we also reject counsel’s alternative submission, and that means that this appeal must be dismissed.