O'Connor & Anor v Royal Borough Of Kensington & Chelsea [2004] EWCA Civ 394

[2004] EWCA Civ 394Case No B2/2003/1033
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE BEHAR)
WL306189
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 March 2004
Before
LORD JUSTICE WALLERLORD JUSTICE SEDLEYLORD JUSTICE CARNWATH
Between
O’CONNOR & ANRAppellantMAYOR & BURGESSES OF THE ROYAL BOROUGH OF KENSINGTON & CHELSEARespondent
Andrew Arden QC and Dominic Preston (instructed by Alan Edwards & Co) for AppellantBryan McGuire (instructed by Director of Law & Administration) for RespondentHearing Hearing date: Wednesday 3 March 2004
JudgmentLord Justice Sedley :
[1]This appeal concerns the meaning and proper application of s.191 of the Housing Act 1996. The section governs the concept of intentional homelessness, an important element in the system for the protection of people without accommodation.[2]The appellants, Mr and Mrs O’Connor, were from 1995 tenants of the Notting Hill Housing Trust, a major provider of social housing in London. They held 1A Railway Mews, Ladbroke Grove, on an assured tenancy. They lost their tenancy when a friend whom they had left in charge of the dwelling while they were away in Ireland for family reasons failed to pay the rent or to notify them of the consequent possession proceedings. The local authority refused to provide them with alternative accommodation on the ground that they had become homeless intentionally.[3]A fuller account of what happened can be taken directly from the judgment of Judge Behar, who in the Wandsworth County Court on 23 April 2003 dismissed the O’Connors’ statutory appeal against the council’s decision. "[1] In October 2000, Mr O’Connor, whose father was very ill, went to Ireland. Mrs O’Connor and the appellants’ daughter followed in November 2000, when sadly Mr O’Connor’s father died. [2] Mr O’Connor suffers from depression and was particularly affected by his father’s death. Arrangements were made for various people to look after and live in the property and to pay rent while the appellants were away. Notting Hill Housing Trust was not informed of the position at that time. The rent fell into arrear. On 15th August 2001, the Trust obtained a suspended possession order. Mrs O’Connor visited London at about this time. She says that the person then looking after the property, Michael Walton, did not tell her about the possession proceedings. It later emerged that he had failed to forward documents to her in Ireland and had allowed other persons to live at the property. [3] In about March 2002, the appellants started to make arrangements to return from Ireland to London. In May 2002, Mrs O’Connor came to London and told Notting Hill Housing Trust that Michael Walton had been looking after the property. She also told the Trust’s representative that she and her family had not been living there. From about June 2002, Mrs O’Connor made strenuous efforts to sort out problems at the property and to pay off arrears. At one point she obtained access to the property and changed the locks but shortly afterwards she left. The following day Michael Walton broke back into the property. [4] In August 2002, Mr O’Connor and the daughter of the appellants joined Mrs O’Connor in London staying with friends. Meanwhile the Trust had applied for a warrant of eviction. Despite an attempt to stay the warrant, it was executed against the property on 4th September 2002. On 5th September 2002, the appellants applied to the respondents as homeless persons. They were provided with temporary accommodation until the respondents’ original decision that they were intentionally homeless. [5] By the time of the hearing before me on 4th April 2003, the appellants were no longer homeless. They had acquired a short hold tenancy of premises in Lewisham. In the circumstances the appeal had only limited practical benefit but the appellants wished to pursue it as if they subsequently made a homeless application in Lewisham, that authority could take the earlier decision into account although it would not, of course, be bound by it. [6] Furthermore, the appellants might some time in the future be referred back to the respondent authority by Lewisham or alternatively might wish to make a direct application to the respondent authority because of their local connections. In such event, an earlier finding of intentional homelessness by the respondents would obviously not be helpful."[4]In passing, it is right to say that at the time when the O’Connors sought a stay of execution on 4 September 2002 they had reduced the arrears from almost £2,000 to £83. The Housing Trust evidently would not stay its hand, and the district judge appears to have refused a stay of execution on the ground that the O’Connors were now dependent on benefits. I have to say that both decisions seem to me remarkably harsh.[5]The material provisions of the Housing Act 1996 are these: 175Homelessness and threatened homelessness(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he – (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court. (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.(2) A person is also homeless if he has accommodation but – (a) he cannot secure entry to it, or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to, reside in it.(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. 191 Becoming homeless intentionally (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. 193 Duty to persons with priority need who are not homeless intentionally (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. (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. 202 Right to request review of decision (1) An applicant has the right to request a review of – (a) any decision of a local housing authority as to his eligibility for assistance. 204 Right of appeal to county court on point of law (1) If an applicant who has requested a review under section 202 – (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision. …… (3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.[6]A housing adviser for the Royal Borough of Kensington and Chelsea, Ms Corkery, initially concluded that the O’Connors were intentionally homeless. Through solicitors they asked for a review. The result of the review, which was to confirm the original decision, was conveyed in a letter dated 2 January 2003 from Mr McDougall, a housing review officer. This is its full text:
"Dear Mr and Mrs O’Connor Housing Application – Request for Review I write further to your solicitor’s request for a review of this Authority’s decision that you became intentionally homeless. The original decision was made by Ms Corkery, Housing Adviser in the Homelessness and Advice Unit, the review was carried out by myself an independent senior officer. I have carried out the review taking into account all the information available to me and after having regard to the Code of Guidance issued by the Secretary of State. I have decided to uphold the original decision. I have considered the information on file, I have read all the interview and file notes and have read the section 184 decision of 30 October 2002. I have also considered the information provided by your solicitor, Alan Edwards & CO, in their letter of 19 November 2002. I have carried out the review based on the facts known to me on the date of review. I cannot find any irregularity in the original decision. Ms Corkery has not failed to take into account relevant facts, she based the decision on the facts, this decision did not have any bad faith or dishonesty, there is no mistake on a point of law, the decision is not contrary to the 1996 Housing Act and is not Wednesbury unreasonable. I am satisfied that adequate enquiries were made regarding your application and the content of the s184 decision letter was correct. In deciding whether you are homeless intentionally I have to decide whether your actions led directly to the loss of your home. I also have to decide whether you could be held responsible for those actions. On 4 September 2002 you were evicted from your tenancy at 1a Railway Mews, W10 6HN by your landlord, Notting Hill Housing Trust, who had obtained a suspended possession order at West London County Court on 15 August 2001 on the grounds of rent arrears. I am satisfied that that this was your last settled accommodation and that the property was both suitable for your needs and would have been reasonable for you to continue to occupy. Your solicitors confirm that you left this accommodation in November 2000 to travel to Ireland to visit Mr O’Connor’s father who was very ill and dying. Mr O’Connor’s father passed away on 28 November 2000 and you remained in Ireland to sort out matters following your bereavement. This included payment of the funeral expenses and other sundry debts. You told Ms Corkery that the total of these debts was approximately £2500. Your solicitor states that when you initially went to Ireland you thought that you would only be away for a short period. While you were away you arranged for friends to look after 1a Railway Mews and pay the rent directly to NHHT. You did not inform NHHT of this arrangement. The reasons given for this were that initially you were not aware that you had to do so and also because you were not profiting from the arrangement. Your solicitor states that you started making arrangements to return to London in March 2002, some 16 months after you left. In May 2002 you discovered that Mr Walton, who was living at 1a Railway Mews, had accrued substantial rent arrears and that NHHT had obtained a suspended possession order on this basis. It was also in May 2002 that you first informed NHHT that Mr Walton was living at the property and you were not. Following further problems with the rent account NHHT obtained possession on 4 September 2002. Your solicitor contends that the loss of your tenancy was harsh. The rent arrears at the time of the hearing on 4 September were £83 and on 10 September you received public funding to take proceedings against Mr Walton. However, due to concerns about payment of housing benefit while you were not resident, the District Judge granted possession to NHHT. I acknowledge the steps that you took to preserve your tenancy once you realised it was under threat. However, I believe it was your decision to leave your accommodation in the care of others without safeguarding your interest that led to the loss of your property. Although you state that your stay in Ireland was only expected to have been relatively short, you must have realised fairly soon that a lengthy absence was likely once you had decided to deal with Mr O’Connor’s fathers’ debts. Your solicitor states that Mr O’Connor suffered a bout of depression following his father’s death. This may explain why Mr O’Connor did not take any action regarding the tenancy but there does not appear to be any impediment to Mrs O’Connor taking action. I believe that by failing to contact NHHT in the 16 months you were absent you are responsible for the subsequent loss of your tenancy. Notting Hill Housing Trust operate a formal care-taking scheme for tenants who are going to be absent for sometime. As you did not contact NHHT you did not give yourself the opportunity to make such an arrangement. The tenancy you held with NHHT was an Assured Tenancy. In order to enjoy Assured status a tenant must have continued use of the property as their principle home. This information would have been readily available from your tenancy agreement. I believe that your length of absence was such that you would have had ample opportunity to consider the position with your tenancy and it would have been reasonable for you to take advice and the necessary action to protect your interest. If you had taken reasonable steps to safeguard your tenancy possession could have been avoided. You have the right to appeal to a County Court on a point of law under Section 204 of the Housing Act 1996. This appeal must be brought within 21 days of you being notified of the decision on review communicated to you by this letter."
[7]On appeal to the county court Judge Behar rejected four of the five grounds as unarguable because they were predicated on the appellants’ having ceased to occupy 1A Railway Mews not on the date (4 September 2002) when they were evicted but at one of three earlier dates. He held as a matter of law that the appellants’ occupancy survived their giving possession to Michael Walton as caretaker, his continuance in adverse possession when he refused to leave in May 2001 and his forcible re-entry when he was locked out, and that it came to an end only when the Trust evicted them by court order. This had in fact been precisely how the appellants had put their case to the local authority.[8]The judge went on to reject the contention that, because the family had rented separate accommodation in Wexford during their return to Ireland, it and not 1A Railway Mews had been their last settled accommodation. This was in essence because the local authority had been given no information about the Wexford accommodation and because both sides had proceeded on the footing that the material loss of housing was the eviction from 1A Railway Mews in September 2002.[9]On the remaining ground, that s.191(2) protected the appellants because Walton had deceived them into thinking that the tenancy was safeguarded in their absence,

the judge concluded:

“In my judgment the appellants cannot, as they seek to do, rely on ignorance of acts which they should, on the respondents’ proper findings, have been aware of and of which they would have been aware had they acted with appropriate diligence and complied with the terms of their tenancy…. I do not consider that the respondents were obliged … to determine whether any false assurances on the part of Mr Walton rendered the failure by the appellants to contact the NHHT a non-deliberate act for the purposes of s. 191(2).”
He added:
“To the extent that I have a discretion, I am not disposed to exercise it in the appellants’ favour when they have found alternative accommodation and are no longer homeless.”
[10]Longmore LJ initially refused permission to appeal on sight of the papers; but on renewal he and Keene LJ were satisfied that the date when occupation of the accommodation ceased and what makes homelessness intentional were questions arising from the present facts which merited this court’s attention as issues of legal principle.[11]On this appeal Andrew Arden QC, with Dominic Preston, submits(a) That the appellants’ occupancy had ceased in law at some point before the date of eviction in September 2002 – not when the family went back to Ireland in late 2000 but arguably when Walton took up occupancy in their place or when he refused to go. If so, the local authority has not directed its inquiry to the right time and should now do so.(b) That in any event the respondents misapplied s.191 in finding intentional homelessness.(c) That no fallback upon discretion was available to the judge: he could only quash, vary or confirm the local authority’s decision; and in any event, the appellants, if right, still stood to benefit by an order in their favour.[12]For the respondents Bryan McGuire submits that:(a) The first ground is all that remains of endeavours, first, to rely on the family’s having obtained settled accommodation while in Wexford, a fact entirely unknown to the local authority; and secondly, to rely on their inability to get back into 1A Railway Mews when they returned. The finding that it was at the date of eviction that the family became homeless was open to the reviewing officer, and that is enough.(b) Even if it is open to the appellants at this stage to rely on their ignorance of Walton’s defaults, ignorance brought about by the applicant’s own neglect is not excused by s.191(2).(c) The county court’s statutory jurisdiction being analogous to that of the Administrative Court on judicial review, there is a discretion to confirm a defective decision in a case where nothing useful remains to be gained.

Issue C: Does the county court have a discretion to withhold relief?

[13]It is convenient to start with the final issue. In Nipa Begum vTower Hamlets LBC [2000] 1 WLR 306 this court held that s.204(1) created a jurisdiction in the county court embracing “the full range of issues which would otherwise be the subject of an application to the High Court for judicial review” (per Auld LJ at 313). But s.204(3) goes on to spell out what are the consequential orders which the county court may make, and they are limited to confirmation, quashing or variation of the local authority’s decision.[14]Unlike judicial review, which is the creation of the common law and lies solely within the province of the High Court, the county court’s appellate power under Part VII of the Housing Act 1996, like the rest of its jurisdiction, is entirely statutory. It is one thing to construe s.204(1), as this court has done, as enabling the county court to consider the full range of issues which could arise on judicial review. This was manifestly Parliament’s intent. It is another to invest it with a dispositive power which is neither inherent in its general jurisdiction nor expressly accorded to it by s.204(3).[15]Mr McGuire has drawn our attention to a passage in the judgment of Buxton LJ, with which the other members of the court concurred, in Crawley Borough Council v B (2000) 32 HLR 636, 646. The principal issue before the court was whether the county court judge had had power to make a binding declaration that the local authority were under an obligation to house the appellant by virtue of s.193(2) when the issue raised on the s.204 appeal had been conceded and a fresh decision to refuse housing had been taken on different grounds. Buxton LJ said:
“The new ground … was one that, if it were relevant to the proceedings, could only be ignored if it could be faulted on public law grounds. Faced with these facts, the judge was in my view bound to consider whether the relief sought, an order to house Ms B under s.193(2), necessarily flowed from the quashing of the [original] decision. In addressing that question, he had to take into account the considerations that affect the grant of relief in public law: since s.204, by importing a whole range of public law issues, must equally imply that where, as here, the complaint is solely on public law grounds the relief likewise is limited to relief of a public law nature. Such relief is not, or at least is not necessarily, granted when to grant relief would be obstructive of the principles of good administration; or be inconsistent with the factual situation obtaining at the date at which the relief is sought; or give the claimant an advantage to which in public law he was not properly entitled.”
[16]This reasoning is directed to the grant of declaratory relief in a case in which the s.204 appellate powers had been exhausted. It adopts the doctrine of Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 that s.204 gives the county court jurisdiction over the full range of issues open on judicial review, and adds the corollary that consequential relief should correspondingly be limited to what is appropriate in public law. Since it was not a foregone conclusion that the local authority would now have to secure accommodation for Ms B, a declaration that it was obliged to do so was not appropriate. The judgments do not embark, because to do so was unnecessary, upon the ambit of s.204(3).[17]What Mr McGuire was ultimately content to bring his submission down to is that s.204(3) itself furnishes the judge with a choice of specified outcomes. Substituting choice, therefore, for discretion, I accept that the former is wide enough to allow the judge to confirm a review decision even where it contains an error of law. But in what circumstances? Mr Arden accepts that confirmation will be a legitimate choice where the decision contains an error of law but the judge is satisfied that, approached on a correct basis of law, the decision would (not could) have been the same. But he resists Mr McGuire’s further contention that the same applies where the appeal point, though well founded, has become idle, for example because the appellant has meanwhile secured settled accommodation. Here, Mr Arden submits, the local authority has no more right to rely on subsequent events to cure an erroneous review decision than the applicant has to rely on subsequent events in order to fault a sound one.[18]Left to myself, I would think that on principle Mr Arden must be right about this. There is a significant difference between confirming a decision because it was the right one, albeit taken for the wrong reason, and confirming a decision which was and remains wrong simply because events have now overtaken it. If, though quashed or varied, it has been overtaken by events, the local authority will not have to revisit it. The fear expressed by Mr McGuire that the court’s process may nevertheless be abused by pointless appeals is answered in the first place by the fact that the Legal Services Commission will not fund, and counsel and solicitors will not advise it to fund, pointless appeals; in the second place by the power of the court to visit any such appeal, where it succeeds, with an appropriate costs order; and in the third place by the court's inherent jurisdiction, which s.204 cannot have supplanted, to restrain abuses of its own process.[19]But the other members of the court do not necessarily share this view, and it is not necessary for the determination of this appeal to resolve the difference. If the judge did have a discretion to confirm an erroneous decision where events have made the challenge pointless, the present case does not seem to any of us to be a suitable one for the exercise of the power. Although the O’Connors have found private rented accommodation since the refusal of Part VII accommodation, such material as is available indicates that they now face termination or non-renewal of their assured shorthold tenancy for want of funds; and while they will have a good case, if as a result they become homeless again, for saying that this was their last settled accommodation and so has broken the chain of intentionality, there are few foregone conclusions in this field. This is not the rare kind of case in which it would be appropriate (assuming the existence of the necessary discretion) to confirm the decision if it is shown to be legally flawed, and I would accordingly not allow the respondent to take advantage of the judge’s fallback finding. It follows that this appeal falls to be considered solely on the question whether the judge erred in law.

Issue A: When did the appellants become homeless?

[20]Mr Arden, accepting that he cannot now supplement the information placed by his clients (with solicitors to advise them) before the local authority, nevertheless contends that even the limited information the council possessed pointed in law to the appellants’ having become legally homeless well before the eviction order took effect. He puts the date either at the point when Walton was let into the dwelling as caretaker or at the point when Walton refused to move out. If he is right about either, it will undo the extant decision and will enable the appellants to seek a new decision if it is still in their interests to do so.[21]Because ‘accommodation’ is not a self-explanatory word, the formula for homelessness in s.175(1) has become overlaid with case-law . But I see no need in the present case to resort to it. It seems clear enough that when Walton was let into the O’Connors’ home it was intended by both him and them to remain the O’Connors’ accommodation. Their absence, even though prolonged, did not amount to anything approaching an abandonment of it. But in mid-2002 when Walton refused to move out, and even more so when he was evicted and broke back in again, it is inescapable that the O’Connors became homeless by virtue of s.175(2)(a): they had accommodation but were unable to secure entry to it.[22]No doubt because neither the O’Connors nor their solicitors suggested to the council that this was the date in law when they had become homeless, neither the initial decision-maker nor the reviewing officer considered it. Had they done so, however, and had they concluded that May or June 2002 was the true date when the O’Connors became homeless, they would have had to bring to bear on it the same reasoning as they brought to bear on the assumed and – in effect – agreed date, 4 September 2002, when the appellants were evicted by the Housing Trust.[23]If, therefore, the respondents’ reasoning about intentionality was correct or at least legally tenable, albeit focused on the wrong date, this appeal would still fall to be dismissed, because the county court judge would have been justified in confirming the local authority’s review decision, as he did, under s.204(3). The case would be in the class of inexorable conclusions described by Latham LJ in Ali v Newham LBC [2002] HLR 20, §13. So everything turns on the second issue. Issue B: Was the appellants’ homelessness caused by their own deliberate act or omission? 24. Reasonableness

Issue B: Was the appellants’ homelessness caused by their own deliberate act or omission?

[24]If the reviewing officer’s letter had to be considered simply as an exercise of judgment about whether the O’Connors were a deserving case, I would think it entirely rational. Everything in it makes perfectly good sense. But the local authority has to start not from the broad question whether applicants have behaved wisely or prudently, or even reasonably, but from the statutory tests.[25]It is clear, first of all, from s. 193(1) and (2) that nobody may be presumed intentionally homeless: the local housing authority must be satisfied of intentionality if they are to refuse assistance. This does not oblige them to make endless inquiries; but even where the applicant’s case has been put (as it was here) by competent solicitors without mentioning the statutory tests, it does not absolve them of the duty to ask and answer, on whatever material they have, the questions raised by the Act.

The statutory tests

[26]It is clear that the test set out in s.191(1) was met. The appellants vacated their home, failed to tell the Housing Trust, let Michael Walton occupy it and accepted his word that the rent was being paid without checking. All these acts and omissions were deliberate, and it was as a consequence of them that the appellants lost their home.

Causality

[27]It is worth pausing here to consider what kind of causation is implied by the phrase ‘in consequence of which’ in s.191(1) and by ‘any relevant fact’ in s.191(2). There may be (in fact there commonly are) multiple causes of a loss of accommodation, and many of them may be innocent within the meaning of s.191(2); but it is enough to establish intentionality if any one operative cause of the eventual homelessness (“anything in consequence of which…”) cannot be brought within the shelter of s.191(2). So it will not avail the applicant to show that most of the operative causes were “innocent” if the local authority can be satisfied that there is one which does not qualify.[28]I say 'operative causes' because it seems to me that Parliament cannot have meant to fix individuals with the consequences of acts or omissions which – like the initial decision to go to Ireland – were the occasion of what followed but not, except in a ‘but for’ sense, the cause of it. The acts and omissions with which s.191(1) is concerned are those which in some appreciable measure made the loss of accommodation happen. Here, for instance, one can tabulate a succession of causes, in one sense or another, of the eventual loss of accommodation: Mr O’Connor’s father’s illness; the family’s departure for Ireland; Mr O’Connor’s depression; the failure to notify the Housing Trust of what was becoming a protracted absence; letting Walton into the dwelling; not ensuring that the rent was being paid; the making of a suspended possession order; Walton’s failure to tell the O’Connors about it; his refusal to give up possession; and finally – and perhaps crucially – the family’s inability to find the last £83 of rent arrears. The first of these was of course not an act or omission of the appellants. The second was; but nobody but a logician would say that it was in consequence of the family’s going to Ireland to see a sick relative that they lost their accommodation. Once, however, you come to the failure to notify the Trust and the introduction of Walton into the letting, you are looking at operative causes, even though it was only the last one – the inability to find the remaining arrears – which was determinative of the loss of the family accommodation.

Unawareness of relevant facts

[29]Here the operative cause on which the respondent now founds, contending that it is not saved by s.191(2), is the O’Connors’ decision to leave the dwelling in the care of others without “safeguarding [their] interest”, in particular by notifying the Housing Trust of their absence. But s.191(2) also operates on a single cause – “unaware of any relevant fact” – and the appellants here say, and have said throughout, that they acted in good faith, unaware that Walton was not to be trusted, that the rent had not been paid and that possession proceedings had been brought. That they could and should have notified the Housing Trust and used its procedure for absent tenants, they say, may well be right, but s.191(2) sets a minimum, not an optimum, standard of care for one’s own interests.[30]It is no doubt because of the harshness of s.191(1), which fixes people with all the unintended and unpredictable consequences of what may have been perfectly reasonable and prudent acts, that s.191(2) is there to mitigate it. It does so, however, not by breaking the chain of cause and effect where the effect was unintended and unpredictable, but by qualifying the deliberate act which has produced the effect: see the analysis made by this court in R v Tower Hamlets LBC, ex parte Rouf (1991) 23 HLR 460, 467, 470. It subtracts from the category of deliberate acts and omissions those done in good faith and in ignorance of “any relevant fact”. Importantly, it imposes no requirement that such ignorance must be reasonable. Without attempting an exhaustive definition, “any relevant fact” must include, if it is not confined to, facts which in the event have brought about the applicant’s homelessness. Secondly, wilful ignorance, at least, must fail the good faith test.

This case

[31]How does this apply to the present case? There were no grounds for doubting, and the council has not doubted, the bona fides of the arrangement with Walton: it was made precisely in order to preserve the appellants’ accommodation for their own occupancy. The appellants were unaware, moreover, of several relevant facts. One was that Walton was not to be trusted. Another, in due course, was that Walton had not been keeping the rent up to date. A third was that, in consequence, possession proceedings had been brought against them by the Housing Trust. It is impossible nevertheless to quarrel with the local authority’s conclusion that the O’Connors’ conduct overall had not been reasonable and that it was only because of it that they were unaware of the relevant facts. But is this enough to establish intentionality?[32]The case for the respondent is that it is. Mr McGuire submits that applicants are not entitled to the benefit of wilful or careless ignorance. He argues, among other things, that otherwise “the incurious are rewarded where the relatively diligent are not: this family would be better off than the tenant who telephoned home every day to beg the lodger to discharge the arrears”. He founds upon the following as the crucial finding in the decision letter:
“I acknowledge the steps you took to preserve your tenancy once you realised it was under threat. However, I believe it was your decision to leave your accommodation in the care of others without safeguarding your interest that led to the loss of your property.” 34. The letter explains this in detail by reference to the known facts, stressing that “by failing to contact NHHT in the 16 months you were absent you are responsible for the subsequent loss of your tenancy” 35. and concluding: “If you had taken reasonable steps to safeguard your tenancy possession could have been avoided.”

The judge’s decision on this aspect of the case turned on a single proposition:

“In my judgment the appellants cannot, as they seek to do, rely on ignorance of facts of which they should, on the respondents’ proper findings, have been aware and of which they would have been aware had they acted with appropriate diligence and complied with the terms of their tenancy.”

Discussion

[34]The judge's finding, like the review decision, makes perfectly good common sense, but it does not reflect the test set out in the statute. In particular, as Dillon LJ pointed out in Ex parte Rouf, s.191(2) does not qualify the word ‘unaware’ by requiring the lack of awareness to have been reasonable. A person’s ignorance may well be due to their having behaved unreasonably but what they do in consequence may still be done in good faith. The statutory dividing line, as it seems to me, comes not at the point where the applicant’s ignorance of a relevant fact was due to his own unreasonable conduct but at the point where, for example, by shutting his eyes to the obvious he can be said not to have acted in good faith.[35]In these circumstances it seems to me that, while it may nevertheless have been open to the local authority to conclude that the loss of the O’Connors’ tenancy, whether by reason of Walton’s refusal to leave or by reason of their eviction, was a consequence of their own deliberate act done in the awareness of all relevant facts, that is not how the authority has approached the case. Mr McDougall’s decision letter, careful and moderate as it is, contains a broad judgment which does not address the serial questions posed by s.191(1) and (2). While the initial review letter from the O'Connors' solicitors to the council shared this approach, their follow-up letter, as Lord Justice Waller points out (though Mr Arden did not), raised precisely the statutory questions which needed to be but were not addressed. But my own respectful view is that the obligation on the council was the same regardless of this eventuality.[36]So far as one can – as, if possible, one should – allocate the reasoning in the letter to the statutory criteria, it appears that the causative act or omission was regarded as being not simply the O’Connors leaving the dwelling in the care of others but their doing so without proper safeguards. This makes good sense, since many occupants would have kept the accommodation safe for their return: it was the failure to put checks in place, starting with the failure to tell the Trust what was going on, that was the operative omission or series of omissions.[37]This is enough to meet the test in s.191(1) and to have called for an answer, if there was one, under s.191(2). But if the local authority were to conclude that there was no good answer, they had in one form or another to address the right question. Unhappily the decision letter does not consider whether the material omission had been made in good faith (not simply unreasonably) and in ignorance of any relevant fact (such as that Walton had stopped paying the rent, or that possession proceedings were on foot).[38]In my judgment, putting the eventual loss of the tenancy down to the appellants’ decision to leave the dwelling “in the care of others without safeguarding [their] interest” elides the two subsections and obscures the crucial questions posed by s.191(2): was it done in good faith, and was it done in ignorance of one or more relevant facts? The same is true of the specific reason given in the decision letter, the omission to use the Trust’s caretaking scheme. This too is perfectly capable of ranking as a causative failure within s.191(1), but there is no perceptible reasoning as to why it is not saved by s.191(2).

At what date do the tests apply?

[39]There may well be cases where the answers to the statutory questions differ depending on the date and nature of the event which has made the applicant homeless, but it is most unlikely that this could be the case here. Whether the moment when the family became legally homeless was when Walton refused to leave or when the warrant of possession was executed, the material facts and issues and therefore the outcome were unlikely to differ. But what that outcome is has in my judgment still to be properly decided. Conclusion 43. With regret, since this was a thoughtful and factually sound decision letter, I would allow the appeal because the decision fails to address, either in terms or in substance, the questions which s.191(2) poses, and because this was not on its facts a case in which to exercise a discretionary power to refuse relief, assuming such a power to exist.

Lord Justice Carnwath:

[40]Having had the benefit of reading both drafts, I agree that the appeal should be allowed for the reasons given by Waller LJ.

Lord Justice Waller:

[41]I have somewhat reluctantly come to the same conclusion as Sedley LJ on the main issue. I should explain why I say reluctantly, but first, I should refer briefly to the discretion point.

Discretion

[42]The point on discretion is a narrow one. I do not find it satisfactory (as Sedley LJ concludes in paragraph 18) that the court should be saying that it might have to grant relief by quashing a decision, although it is pointless, but that the court can be reassured that such appeals are unlikely to come before it because public funding is likely to be denied and /or orders for costs will be an adequate sanction. I would feel instinctively that the court ought to be able to make no order if proceedings were pointless. But, since Sedley LJ does recognise the court’s inherent power to prevent an abuse of its process, I do not think it right to explore further the existence or width of the court’s power in a case where the point is not necessary to the conclusion on the appeal.

Conclusion

[43]If a party is entitled to relief, it may be difficult to refuse public funds, and if, ultimately, a party gains an order for relief and is thus the “ winner”, it will not be that easy for the court to order that winner to pay the costs of the loser, even if the court is dealing with a winner who could actually meet a costs order. Surely, if an appeal is held by a court to be pointless, the court has an inherent power to refuse relief. It must be an abuse of the process of the court to mount and pursue proceedings that are pointless, and I would suggest that although it may be rare for a court to be able to so hold where an original decision is unlawful, and the proceedings are pointless because of a change in circumstances since the decision was taken, the court should make clear that it retains that power.

Section 191(2)

[44]My reluctance flows from the following. The decision which is the subject of challenge must be viewed in its context. It was a review of the original decision of Anne Corkery dated 30th October 2002. She set out the facts as she had discovered them, which were essentially that(1) that the O’Connors had been awarded the tenancy of 1a Railway Mews in 1995;(2) they had gone to Ireland in October 2001 [this was clearly a mistake for 2000 as the subparagraph itself shows by reference to Mrs O’Connor returning for a short while in August 2001];(3) they left Mr Walton in the flat to pay the rent;(4) they returned in May 2002 to discover that the rent had not been paid leading to the NHHT obtaining an order for possession in August 2001, suspended on terms that certain sums were paid monthly; terms Mr Walton was adhering to at that time;(5) they attempted to regain control by changing the locks but Walton returned and kept them out;(6) they did not have funds to finance litigation at this time;(7) Mr Walton then fell behind and NHHT applied to the court;(8) the O’Connors tried to mount an action to evict Mr Walton and paid substantial parts of the arrears;(9) on 4th September the court made an eviction order against the O’Connors although only £83 was outstanding, in part by reference to the fact that not being in possession, the O’Connors would not receive housing benefit to enable the rent to be paid.[45]Anne Corkery’s conclusion was then in these terms:
“Whilst I do sympathize with your circumstances, in conclusion, after taking into full account all the evidence from yourself and the NHHT, I feel that on balance, your homelessness has resulted in a deliberate act in that you failed to adhere to the terms and conditions of your tenancy agreement, which resulted in a suspended possession order being brought against you, which in consequence resulted eventually in the loss of your accommodation, which would have otherwise been reasonable for you to occupy.”
[46]By their solicitor’s letter seeking a review (solicitors, it should be said, highly experienced in this area) certain facts were corrected or emphasised, but not so that it altered the picture outlined above. The letter then continued in these terms:
“In our view, our clients’ homelessness was not caused by a “deliberate act” on their part. As set out in this letter, when our clients left for Ireland in November 2000, they put a system in place to ensure payment of the rent. Our clients accept that they did not notify the NHHT, but this was only because they were not aware that they were obliged to do so. In your letter of 30 October 2002, you make a finding that our clients’ homelessness was caused directly by their failure to monitor payment of the rent prior to the suspended possession order made on 15 August 2001, as a result of which they were eventually evicted on 4 September 2002. We consider that in reaching this conclusion, you have also failed sufficiently to consider the period following our clients’ return to the UK in May 2002, and the considerable efforts that they made to avoid possession at that stage, up to and including the date of their eviction on 4 September 2002. It is our view that the cause of our clients’ homelessness was the failure of their application to suspend the warrant for possession on 4 September 2002, and not the making of the suspended possession order on 15 August 2001. Our clients did everything that they could to preserve their tenancy following their return to the UK in May 2002. We have reviewed Gillian Radford & Co’s notes of the hearing on 4 September 2002 from which it is clear that the possession order was made on the basis that our clients would be unable to meet their future rental obligations, as the District Judge accepted submissions from the NHHT to the effect that Housing Benefit would not be backdated to cover any period during which our clients were not resident at the property. We consider this to be a very harsh finding, as it is not impossible that the Housing benefit department would not have accepted an application from our clients for backdated benefit from the date of the order to the date on which they secured possession from Mr Walton. As indicated above, our clients were granted public funding to take proceedings against Mr Walton on 10 September 2002. There is also a possibility that our clients would have been eligible for a discretionary housing benefit payment to cover their period of non occupation once they had regained possession of the premises. As the arrears were only £83.00 at the date of that hearing, the only period that our clients would have been claiming for would have been the period from the date of the hearing to the date of obtaining possession – a relatively short time. In our view, that finding is the cause of our clients’ homelessness, not the reasons stated in your letter. We consider therefore that your decision is flawed as you have failed to address the root cause of our clients’ homelessness and your finding that our clients’ homelessness was caused by a deliberate act on their part is similarly flawed, for the reasons set out above.”
[47]Apart, accordingly, from a reference to ignorance of their obligation to inform the NHHT, the letter was aimed at disputing that there was any act or omission of the O’Connors which, in consequence of which, the O’Connors have ceased to occupy 1A Railway Mews i.e. as to whether the council could establish conduct within section 191(1) at all.[48]There was no reference to the possibility that if there was an act or omission which had in consequence led to them ceasing to occupy, that act or omission was carried out in ignorance of any relevant fact, and that ignorance was “in good faith”, and there was no reference to Section 191(2).[49]Perhaps, therefore, unsurprisingly, the main thrust of the review concentrated on Section 191(1). It did deal with the NHHT position and the alleged ignorance of the O’Connors’ obligation in that regard, in the anti-penultimate paragraph, pointing out that the information in that regard was “readily available from the tenancy agreement”. Its decision was in these terms:
“I acknowledge the steps that you took to preserve your tenancy once you realised it was under threat. However, I believe it was your decision to leave your accommodation in the care of others without safeguarding your interest that led to the loss of your property. Although you state that your stay in Ireland was only expected to have been relatively short, you must have realised fairly soon that a lengthy absence was likely once you had decided to deal with Mr O’Connor’s fathers debts. Your solicitor states that Mr O’Connor suffered a bout of depression following his fathers death. This may explain why Mr O’Connor did not take any action regarding the tenancy but there does not appear to be any impediment to Mrs O’Connor taking action. I believe that by failing to contact NHHT in the 16 months you were absent you are responsible for the subsequent loss of your tenancy. Notting Hill Housing Trust operates a formal care-taking scheme for tenants who are going to be absent for sometime. As you did not contact NHHT you did not give yourself the opportunity to make such an arrangement. The tenancy you held with NHHT was an Assured Tenancy. In order to enjoy Assured status a tenant must have continued use of the property as their principle home. This information would have been readily available from your tenancy agreement. I believe that your length of absence was such that you would have had ample opportunity to consider the position with your tenancy and it would have been reasonable for you to take advice and the necessary action to protect your interest. If you had taken reasonable steps to safeguard your tenancy possession could have been avoided.”
If you had taken reasonable steps to safeguard your tenancy possession could have been avoided.”[50]There can be no question that the decision was a finding that there was a deliberate act or omission of the O’Connors within Section 191(1), which had the consequence of the O’Connors ultimately being evicted by the court order, made in September. [I will come back, importantly, as to what act or omission they were finding.] It was not considered (apart, possibly, from the position of the NHHT), because it had never been raised, whether, although the act or omission was deliberate, it should not be taken to be so because of ignorance in good faith of a relevant fact.[51]That point was taken by the solicitors for the O’Connors, immediately following, by letter dated 23rd January 2003, to which no reference was made at the recent hearing. That letter indeed points up what ultimately became the issue before us. That letter suggests that the deliberate act or omission of the O’Connors, as decided by the review letter, was the failure during 16 months (i.e. from going to Ireland in October 2000 to the return in May 2002) to contact the NHHT. That failure, suggests the solicitor’s letter, was taken in ignorance of the fact that Mr Walton had not paid the rent leading to the suspended order in August 2001; that he was deceiving them about the receipt or non-receipt of important letters etc.[52]Mr McGuire for the Council argued before us that the decision of Mr McDougall was that the act or omission which lead to the ultimate eviction was the original decision to go to Ireland and to fail to make arrangements for the safeguarding of the interest. If he were right about that, there could be no question of the O’Connors successfully relying on the unawareness of relevant facts. Mr McGuire argued that in so far as the decision letter relies on a failure to act during the 16 months, that is not a decision that it was that failure which had any causative effect.[53]I cannot accept Mr McGuire’s submission. It seems to me that the decision letter undoubtedly decides that the failure to do anything within the 16 months was “responsible for the subsequent loss of the tenancy”. What is more, logically, it has to be so, because, if the O’Connors had been aware that Mr Walton was not paying the rent, their conduct in May 2002 would support the view that they would have done something about it at the earlier stage, and that they would have been able to save their accommodation by being able to get public funding to evict Mr Walton before orders of the court overtook them.[54]The question comes down, in my view, to asking whether the decision-maker, having concluded that the 16 months of failure was causative, should have then looked at section 191(2) without any prompting from the solicitor. It is somewhat harsh on a decision-maker that he should not be able to rely on a solicitor’s letter as indicating the issues. That is what has given rise to my reluctance. But in my view, in this case he was bound to do so in the light of the facts about which he had been told.[55]That being so, it seems to me that the judge’s conclusion cannot stand and I would allow the appeal.

Cited in 10 later judgments

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