Ekwuru v Westminster, City of [2003] EWCA Civ 1293

Case No B2/2002/1899[2003] EWCA Civ 1293
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE CENTRAL LONDON COUNTY COURT
(MS RECORDER DAVIES QC)
Venue Royal Courts of JusticeDate Thursday, 31 July 2003
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE SCHIEMANN
LORD JUSTICE LATHAM
LORD JUSTICE JONATHAN PARKER
Between
ONYEMAHAME EKWURUAppellant-v-
Between
LORD MAYOR & CITIZENS OF THE CITY OF WESTMINSTERRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR D SWEETING QC AND MR B ROCHE (instructed by Messrs DFA, Northampton NN1 2DQ) appeared for AppellantMR P HAVERS QC AND MR D WARNER (instructed by Westminster City Council, London SW1E 6QP) appeared for Defendant
J U D G M E N TThursday, 30 July 2003

LORD JUSTICE SCHIEMANN:

[1]Westminster is a local housing authority. Mr Ekwuru is homeless and in priority need and has applied to the Authority to secure that accommodation is available for occupation by him. The duties of a housing authority to such a person are in principle set out in section 193 of the Housing Act 1996. The Authority is under a duty to secure that occupation is available for occupation by the applicant.[2]By reason of section 190 where an authority "are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally" they are under a lesser duty spelt out in that section.[3]By virtue of section 184 an authority when they receive an application for housing assistance are under a duty to "make such inquiries as are necessary to satisfy themselves" as to three matters:(i) whether he is homeless;(ii) whether he is in priority need;(iii) whether he is homeless intentionally.[4]In the present case the Authority were satisfied as to the first two of these matters and were only concerned with the correctness of its decision in relation to the third.[5]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."
[6]The applicant, Mr Ekwuru, made his first application for housing in August 1999. After reviewing a decision made by an officer in May 2000 that he was satisfied that Mr Ekwuru was homeless intentionally in August 2000 the Authority also decided that they were satisfied that he was intentionally homeless. Mr Ekwuru appealed to the county court. He lost. He appealed to this court which, with the consent of the authority, allowed his appeal and quashed the first decision and ordered the authority to carry out a second review. On the second review after making further inquiries the Authority in November 2001 once more came to the conclusion that it was satisfied that Mr Ekwuru was homeless intentionally. The second decision[7]Mr Ekwuru appealed to the county court. Once more the Authority submitted to its decision being quashed by the court. The court ordered the authority to carry out a third review. This took place in early 2002. The third decision[8]On the third review after making further inquiries the authority in April 2002 once more came to the conclusion that it was satisfied that Mr Ekwuru was homeless intentionally.[9]Mr Ekwuru again appealed to the county court. In July 2002 before the case came on for hearing the Authority indicated to Mr Ekwuru that it was once more prepared to submit to its decision being quashed by the court and for the court to order a fourth review. However Mr Ekwuru is not content with a mere quashing. He asked the Recorder to exercise what he claimed were her powers under section 204(3) to substitute her decision for the decision of the Authority and amend the Authority's determination. That subsection provides:
"On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."
[10]Ms Recorder Davies QC in August 2002 came to the conclusion that it would not be appropriate to do anything other than quash the third decision and order a fourth review. She considered that to do otherwise would involve "a hearing by the court of all the original facts which led to the finding that the appellant was intentionally homeless." This is the decision which Mr Ekwuru now appeals with the leave of this court given in November 2002.[11]For reasons which it is not necessary to set out there has been yet more delay before the case came on for hearing before us. So the position is that the recorder's decision was made three years after the application was first made. Now we are nearly a further year down the road.[12]The Authority accepts that its third decision was an unlawful one and was rightly quashed by the Recorder. It submits, however, that the only course open to the recorder was the one which she took, namely, to send the matter back to the Authority to carry out a fourth review.[13]Mr Havers, who appears for the Authority, submits that there is a distinction to be drawn between findings of primary fact and conclusions to be drawn from those findings. He submits that it would only be in the rarest of cases where the court would itself engage upon the primary fact-finding exercise. He submits that it is for the Authority, not for the court, to make those findings of primary fact after making the appropriate inquiries, and that the recorder was right to send the case back to the Authority to enable it to do so. He does not suggest that those findings have already been made because he accepts that all the findings which had been made so far had been infected by legal error of one sort or another.[14]Mr Ekwuru submits that at the time of reaching the third decision it was not lawfully open to the authority to reach a conclusion that it was satisfied that he was homeless intentionally. He submits that no further material is likely to come to light, and that the circuit judge in those circumstances has the power to vary the decision of the authority so as to delete the finding that they were satisfied that Mr Ekwuru became homeless intentionally.[15]In the history of this matter there are three considerations which have led the authority to come to the conclusion that they were satisfied that Mr Ekwuru became homeless intentionally. They concern the circumstances under which he left his previous accommodation at the end of 1997 or the beginning of 1998. The Authority at one time or another have said that there is reason to believe(i) that Mr Ekwuru never was under any pressure from the landlord to leave. That is the stance taken in the third decision;(ii) that if Mr Ekwuru left under pressure from his landlord this pressure was only applied because Mr Ekwuru, although financially in a position to do so, refrained from paying the rent due to his landlord. That is the stance taken in the second decision but not persisted in the third decision. I ought to say that the second decision does not expressly deal with Mr Ekwuru's ability to pay.(iii) that he may have left that accommodation voluntarily to go to Nigeria in November 1997 rather than, as Mr Ekwuru now asserts, in late January 1998. That is the stance taken in the third decision.[16]The significance of the difference in time between these two dates lies in the fact that prior to December 1997 Mr Ekwuru was under no pressure from his landlords to leave his accommodation. If he left before that pressure was applied then it was open to the Authority to conclude that he ceased to "occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy". That is common ground.[17]The material before the Authority indicates that after November and before February, the landlord served Mr Ekwuru with notice to quit and started possession proceedings. Mr Ekwuru has an assured shorthold tenancy. It was open to the Authority to take the view that the landlord initiated this action because Mr Ekwuru had got behind in his rent. If he had sufficient money to pay the rent and failed to do so then it would have been open to the Authority to find that he became homeless intentionally.[18]It is convenient to look first at the question whether Mr Ekwuru failed to pay the rent in circumstances where he had assets which enabled him to do so. The relevant legal test is set out in the R v Wandsworth London Borough Councilex-parte Hawthorn [1994] 1 WLR 1442, a decision of this court. The only substantial judgment was given by Nourse LJ, who said at page 1447E:
"The purpose of Part III of the Act of 1985 [he is there speaking of the legislative predecessor to the present proceedings] is to house the homeless. Admittedly it is not part of that purpose to house those whose homelessness has been brought upon them by their own fault. But equally it is no part of it to refuse housing to those whose homelessness has been brought upon them without fault on their part, for example by disability, sickness, poverty or even a simple inability to make ends meet. Whether, in a case of non-payment of rent, there is a sufficient nexus between the cause relied on and the failure to pay to establish that it was not deliberate will be for the housing authority to consider and decide upon. But, as the judge said, consider it they must."
[19]Mr Ekwuru at all material times was, as the Authority knew, in receipt of Social Security benefits. Indeed the Authority paid nearly all of his rent for him direct to his landlord. The problem arose because the landlord increased the rent and the Authority were not prepared to pay more than £150. Apart from a suggestion tentatively made by Mr Havers in front of us but not foreshadowed in any previous written document that if Mr Ekwuru went twice to Nigeria both in November 1997 and January 1998 then he must have had access to money which could have been used to pay the rent, the Authority had never suggested in the past that Mr Ekwuru had private assets which were sufficient to pay any higher rent. The Authority however suggests in their third decision letter that the landlord was content with the rent of £150.[20]There are on the face of it a number of matters which were before the Authority which point to the opposite conclusion. In particular(i) a letter dated 12 December 1997 from the landlord's agents stating that a notice under section 8 of the Housing Act had been served on Mr Ekwuru and that unless arrears were paid by 31 December possession proceedings would be commenced;(ii) the letter dated 8 August 2000 from the county court stating that a possession case (relating to him and the property which he was then occupying) was issued on 14 January 1998.[21]There was nothing in the material before the Authority at the time of its third review which could lead to the conclusion that the landlord was prepared to renew the lease at the rate of £150. Nothing has been suggested before us which leads me to suppose that there is any realistic possibility that further inquiries by the Authority could lead to a different conclusion.[22]As to the suggestion that Mr Ekwuru made two trips to Nigeria within three months Mr Ekwuru has consistently denied this. He has admittedly at one time or another put forward two dates for his trip there. First, he suggested the November date, and then he suggested the January date. In my judgment there is no realistic possibility that on carrying out a fourth review into this matter the Authority would discover more than it discovered on its first three reviews. In the extreme circumstances of this particular case I consider that the recorder should have considered and rejected the possibility that more might be uncovered in relation to private sources of funds open to Mr Ekwuru. She was therefore entitled to look at the material before the Authority and should, in my judgment, have come to the conclusion that on that material the Authority could not lawfully be satisfied that Mr Ekwuru had private sources of money which he could have used to pay the landlord's rent demands.[23]Turning now to the question when Mr Ekwuru left this country, the Authority legitimately points out(i) that Mr Ekwuru initially himself asserted repeatedly that he had left this country in November 1997;(ii) that Mr Ekwuru has never suggested that he left this country more than once. Yet his passport contains two stamps. The first states that he left Port Harcourt on 27 November 1997; the second that he left Port Harcourt in January 1998. Both of them, interestingly enough, referred to the fact that he was leaving Port Harcourt rather than arriving there. There appear to be no stamps which deal with his arrival there.[24]Mr Sweeting QC, who appears on behalf of Mr Ekwuru, points to the following material which was before the Authority at the time of its last decision. First, a letter from the county court seized of possession proceedings. It is addressed to Mr Ekwuru and dated 8 August 2000 and is headed:
"Re: Wrightling Limited against Mr Ekwuru. Case No.CL85L178. The above case was issued in this court on 14th January 1998 and the possession summons was served on the defendant by post on 27th January 1998. The reply to the possession summons (11) was lodged on the court's computer system on the 1st February 1998. The claimant's agents were Karnar Shackling..."
The case was withdrawn on the date of a possession hearing on 5 March 1998.[25]The second piece of material before the Authority was a letter from the landlord's agents which is addressed to Mr Ekwuru's then solicitor headed:
"Re: Flat 4 36 Daventry Street NW1. Further to your instructions received I can confirm that we drafted the section 8 notice for arrears on the above matter and attendance was made at the address on Friday 12 December before 16.00 and we served the notice by inserting the same through letter box of the flat as the tenant was not in. Should we fail to receive payment of the arrears by 31st December then possession proceedings will be issued shortly thereafter. I will be drafting an affidavit of service and will retain the same on file should we have to issue proceedings."
[26]The third set of material which was before the Authority at the time of its last decision were repeated statements by Mr Ekwuru that he left in January 1998 and that his earlier references to November had been made in error.[27]In my judgment the Authority was entitled to come to the conclusion that it should place no weight on the evidence of Mr Ekwuru. In principle of course the Authority could have caused inquiries to be made of the county court and of the agents in order to see whether the relevant documents were genuine and accurate. They either did not cause such inquiries to be made or, if they did, came to the conclusion that the letters were genuine. The contrary has not been suggested before us. On that basis it was in my judgment not open to the Authority to reach the conclusion that it was satisfied that Mr Ekwuru had left the country in November 1997.[28]By the time the appeal was heard by the recorder further material had come to light. The first matter is a copy of Mr Ekwuru's reply in the possession proceedings in the county court. This is stamped apparently by the county court 27 January 1998. The second is a letter dated 15 April 2002 apparently from Job Centre Plus indicating that Mr Ekwuru applied for a budgeting loan on 29 December 1997 and that this was paid to him on 6 January 1998. The third is a statement by Mr Ekwuru that in January 1998 he was tried for assaults in the Marylebone magistrates' court and acquitted after giving evidence.[29]Before us there has been produced a fax dated 5 June 2003 apparently from the justices clerk of the Marylebone Magistrates' Court stating that Mr Ekwuru appeared there on 2 December 1997 and on 21 January 1998.[30]In those circumstances I have come to the conclusion:(i) There is no realistic possibility that further inquiries by the Authority in relation to the passport entries will leave it any better informed as to why those entries were made and when they were made than it is now. I regard the passport entries as being of no assistance to either side.(ii) There is no realistic possibility that further inquiries by the Authority in relation to the documents filed by the county court and in the magistrate court could lead to the conclusion that it was satisfied that Mr Ekwuru was not in this country in January 1998.(iii) There is no realistic possibility that further inquiries by the authority could lead it to the conclusion that it is satisfied that Mr Ekwuru became homeless intentionally either in November 1997 or in January 1998.[31]In my judgment(i) the authority on the material before it at the time of its third decision could not lawfully have come to the conclusion that it was satisfied that Mr Ekwuru was homeless intentionally;(ii) there is nothing to be gained by this court sending the case back for further investigation by the Authority. This is because in the highly exceptional circumstances of the present case there is no real prospect of the Authority turning up further material which would entitle it to reach the conclusion that Mr Ekwuru was homeless intentionally.

LORD JUSTICE JONATHAN PARKER: I agree.

LORD JUSTICE LATHAM: I also agree. (Appeal allowed; the Respondent do pay the Appellant's costs of the appeal, such costs to be assessed; further order as per agreed minuted order).