Eren v London Borough of Haringey [2007] EWCA Civ 409

Case No B5/2006/1796[2007] EWCA Civ 409
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HER HONOUR JUDGE PEARCE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 24 th April 2007
Before
LORD JUSTICE CARNWATHLADY JUSTICE HALLETTLORD JUSTICE LAWRENCE COLLINS
Between
ERENAppellantLONDON BOROUGH OF HARINGEYRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MISS J MAXWELL (instructed by London Borough of Haringey Corporate Legal Services) appeared for Appellant.MR A PANTON (instructed by Messrs Ismail & Co) appeared for Respondent.
Judgment
[1]This is a second appeal brought with the permission of Neuberger LJ, as he then was. On 20 July 2006 HHJ Pearce, sitting in the Edmonton County Court, allowed an appeal from a decision of Mr D Neale, Housing Review Manager of the London Borough of Haringey, in a decision given in a letter dated 27 February 2006. In that letter Mr Neale concluded that the respondent was intentionally homeless, having left her former matrimonial home at 331 Hertford Road, Enfield, when it was unreasonable for her to do so. HHJ Pearce ordered the London borough of Haringey to reconsider its decision.[2]The factual background can be stated shortly. The respondent is separated from her husband and is the primary carer of their two-year-old child. She left the former matrimonial home, 331 Hertford Road, in March 2004. It was a privately rented flat in the names of both her and her husband. She applied to her local borough, the Borough of Enfield, for help with housing as a homeless person under part 7 of the Housing Act 1996. Enfield rejected her application. She was advised to return home and she was further advised that failure to take this advice meant she ran a risk of being found intentionally homeless. The respondent did not take the advice; she did not return to the matrimonial home. The tenancy was surrendered in May 2004 -- it is a matter of debate by whom.[3]In July 2004, the respondent made a further application to Enfield. Enfield made further enquiries, as it was duty bound to do under the Housing Act, and found that the respondent had made herself intentionally homeless. The respondent did not request a review of that decision. Just months later, in May 2005, the respondent made an application to the appellant for help again under part 7 of the Housing Act 1996. In giving the history of where she had lived, she failed to mention the former matrimonial home in Hertford Road and she failed to mention temporary accommodation which had been provided for her by Enfield. She did not reveal that she had made two previous applications as a homeless person to Enfield.[4]Nevertheless, the appellant’s assessment officer, Mr Plowright, became aware of the applications to Enfield. He obtained a copy of Enfield’s homelessness file on the respondent. He found that the respondent’s last settled accommodation was the address in Hertford Road. He noted that in three interviews with officers from the London Borough of Enfield the respondent had failed to mention that she had been in fear of her husband. He further noted that she had ignored advice from Enfield to return to the former matrimonial home, and he particularly took into account that when confronted with the suggestion that she personally had handed back the keys to the matrimonial home and collected the deposit, she had claimed that her husband had used another woman to impersonate her. This Mr Plowright found “bemusing” given the fact that Mr Eren was entitled to hand over the keys and collect the deposit himself.[5]Having analysed some of the inconsistencies in the respondent’s various accounts he found that her statement lacked credibility and that she was intentionally homeless under section 191 of the Housing Act 1996. She requested a review of that decision under section 202 of the Act. Mr Neale carried out the review and he upheld the decision.[6]The respondent appealed this decision to HHJ Pearce on two grounds. The first ground of appeal was that Mr Neale had applied the wrong test in law. In his decision letter, Mr Neale summarised the factual background and the two bases upon which Mrs Eren had challenged the decision that she was intentionally homeless before him. He analysed the various accounts that Mrs Eren had given of her husband’s behaviour and why she had left home. He revisited the interviews that she had had with Enfield and compared the contents of those interviews with statements which she had made to Haringey and in particular to Mr Plowright.[7]He said that he took into account that she was pregnant at the time she left home, that she had asthma and claimed that she reacted badly to stress. He said he also noted that she was an adult who made a conscious choice to commit “to this marriage against your parent’s advice”. He accepted that it was difficult in those circumstances to make a judgment about the point at which a spouse’s behaviour “became so unreasonable or intolerable that the only option is to leave home.” He then went on to state:
“I do not think it unreasonable for either Enfield or Haringey to make a finding that the home was reasonable for you to continue to occupy in the absence of any specific acts or threats of violence, even if your description of the relationship contained in the 6 February witness statement is completely accurate.”
It is upon those words that the first limb of this appeal turns.[8]It is common ground that the decision of the reviewing officer under part 7 of the Act is at large as to the facts and as to the exercise of the discretion; for which principle see paragraph 26 of the judgment in Mohammed v Hammersmith & Fulham LBC [2002] HLR 7. Mr Panton argued before HHJ Pearce and before us that the words to which I have referred indicate that, far from forming his own conclusions on the facts and the proper exercise of discretion, Mr Neale carried out a “judicial review” type exercise. Mr Panton submitted that Mr Neale had considered whether or not the decision he was reviewing was a reasonable one. Thus, he failed to consider all the facts afresh. This, Mr Panton argued and the judge found, was an error of law.[9]The second ground of appeal related to the return of the keys to the matrimonial home. Towards the end of his decision letter Mr Neale stated:
“The Agency told Enfield council that you had handed them in and accepted the return of the deposit. You denied this, asserting that you had been told by a relative that your husband had got a female friend to impersonate you. Neither Enfield nor Haringey Council believe this story, being unable to accept that a professional agency whose staff you knew by sight could be deceived in this way. It appears to me likely that you surrendered the tenancy yourself but if I am wrong on this point your long delay in attempting to re-establish yourself in Hertford Rd may be considered tantamount to deliberate abandonment of the tenancy.”
This, Mr Panton argued and the judge found, ignored the effect of a letter from the letting agency who had informed Enfield Council that it was Mrs Eren who had collected the keys. The letter indicated that the letting agency had no proof as to who had returned the keys. The judge put it in this way:
“There [was] considerable doubt in relation to that particular issue which has not properly been dealt with by the decision maker in coming to the decision …... The very fact that the appellant was relying on this particular letter to substantiate her case made it all the more important and relevant that the matter should have been properly considered. It was not so considered, and I therefore find that the decision maker has not applied the appropriate test.”
[10]If the surrender of the tenancy was as significant as these remarks suggest, Miss Maxwell (on behalf of the authority) invited our attention to material that she submits HHJ Pearce herself has failed to consider, namely written confirmation in the Enfield file from the letting agency that it was Mrs, not Mr Eren, who had surrendered the tenancy of the matrimonial home.[11]Miss Maxwell argued that there is here an important point of principle which arises for determination. She reminded the court of the multiple applications that may be made by one homeless person and she argued that this decision impacted upon the extent to which a housing authority may rely upon previous enquiries and/or decisions made by another housing authority to which an applicant has previously applied.[12]I can state my conclusions shortly. In my view, no point of principle in fact arises for determination on this appeal. The parties agree and the judge appears to have accepted that the reviewing officer for Haringey was entitled to consider the contents of the Enfield Housing file on the respondent. It would be nonsensical to suggest otherwise. The focus of the Haringey enquiry was on whether or not Mrs Eren’s decision to give up her home was reasonable. Just months before, Enfield had carried out enquiries into the self same issue. A full and fair enquiry by Haringey was bound to consider what the respondent had said nearer the time of her departure from the former matrimonial home and what Enfield had discovered.[13]Haringey were not, however, entitled to base their decision solely on the Enfield decision. They were duty bound to carry out their own enquiries and Mr Neale, as the reviewing officer, was duty bound to form his own conclusions. It would not have been sufficient for him merely to repeat what Enfield or Mr Plowright had found and state that it was, in his opinion, reasonable for them so to have found. This is what the judge decided Mr Neale did; I disagree.[14]First I am not sure what the judge meant when she stated at paragraph 17 of the judgment that: “… it seems clear to me that, based to a large extent on the information which he has obtained from Enfield’s file, he has clouded his own judgment”. given that she accepted that he was entitled to take into account the file’s contents Second, and more importantly, it is clear that the only basis for the assertion that Mr Neale has carried out a judicial review-type exercise is the one sentence to which I have already referred in paragraph 7.[15]To my mind, far too great a significance has been attached to those words and they have, with respect, been taken out of context. The context is a three-page closely-typed letter written by one layman to another. This is a decision letter from a Housing Review Officer. It is not a judgment or a statute. It should not be subjected to close textual analysis of the kind deprecated in Osmani v Camden LBC [2005] HLR 22, 325.[16]On my reading of the letter, Mr Neale has set out with great care the factual background and why he has reached his personal decision. Mrs Eren could have been in no doubt as to why he came to the conclusion that she was intentionally homeless. His reasons were clear. He did not rely slavishly upon the decision made by Enfield; he did not rely solely upon the enquiries that they had made. He carried out his own enquiries. He considered further representations from the respondent. As I have indicated, he reconsidered the interviews the respondent had with Enfield. Indeed, he based his decision in part on his analysis of what she had said to Enfield as compared to what she said to Mr Plowright in October 2005 and in a witness statement to Haringey dated 6 February 2005. The significance of this analysis was that the first mention of domestic violence as the cause of the respondent’s leaving home was, it seems, made in the witness statement.[17]Further, Mr Neale in terms based his findings as to the respondent’s credibility upon her failure to tell Haringey about her previous addresses and her applications to Enfield. He found that her account she had simply forgotten to mention that she had lived the year before in the former matrimonial home was, frankly, incredible. Similarly, he found her suggestion that her husband may have obtained the services of a female friend to impersonate her somewhat incredible. On my reading of his findings it is beyond any doubt that he has considered all these matters and he has formed his own conclusions as to her credibility. He says so in terms towards the end of the letter:
“I have concluded that it was a deliberate act, namely abandonment of your tenancy, which directly resulted in the loss of accommodation that was reasonable and available for your occupation.”
[18]The are numerous other ways in which Mr Neale has expressed himself throughout the letter, which I do not intend to rehearse, which support the conclusion that these are all his findings. They are not Enfield’s findings; they are not Mr Plowright’s findings. Mr Neale came to the same view as they did and, not surprisingly, he thought their views were reasonable. Thus, I am satisfied that Mr Neale did apply the right test and he formed his own conclusions.[19]I turn to the question of whether or not he considered all the relevant material and whether or not his failure to mention the letter in which the letting agency said they had no proof who returned the keys was so significant as to justify ordering a re-determination. Again, I am forced to disagree with the judge’s finding. First, I do not accept that the question of who surrendered the keys was at the heart of this decision, and second, I cannot accept that the letter which provides no proof either way as to who handed the keys over was so material it should not only have been considered but also mentioned in the decision letter.[20]As Mr Panton appeared to concede in the course of argument, the core of this decision was the fact that the respondent did not have to leave home because of domestic violence from her husband, and it was not therefore reasonable of her to give up her accommodation. It was essentially on that basis that she was found to be intentionally homeless. The question of the keys was a subsidiary issue and one which Mr Neale himself in the sentences I have cited appears to have accepted may not have been capable of proof. He still found, given the lengthy delay in her attempt to re-establish her residence at the matrimonial home, that she had deliberately abandoned her tenancy.[21]Thus, for my part, I am satisfied that the respondent’s application received proper and fair consideration at the hands of the authority’s Reviewing Officer. This was a statutory appeal on a point of law under section 204 of the Act. To my mind there were no errors of law in the decision letter or the decision making process and I would allow the appeal.[22]I entirely agree.[23]I also agree.

Order

Appeal allowed.