Royal Borough of Windsor and Maidenhead v Hemans [2011] EWCA Civ 374

Case No B5/2010/1922[2011] EWCA Civ 374
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 2 nd March 2011
Before
THE CHANCELLOR OF THE HIGH COURT(SIR ANDREW MORRITT)LORD JUSTICE TOULSONLORD JUSTICE SULLIVAN
Between
Royal Borough of Windsor and MaidenheadAppellantHemansRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Iain Colville (instructed by Royal Borough of Windsor and Maidenhead) appeared for Appellant.Ms Kerry Bretherton (instructed by Turpin & Miller Solicitors) appeared for Respondent.
Judgment
[1]The appellant council appeals against an order made by HHJ Harris QC in the Oxford County Court on an appeal by the respondents, Mr & Mrs Hemans, under s.204 of the Housing Act 2006. Under that section a person who has requested a review by a local housing authority of a decision made under the homelessness provisions contained in Part VII of the Act, and who is dissatisfied with the decision made on the review, may appeal to the county court on a point of law.[2]On 29 September 2009, solicitors, Turpin & Miller, wrote to the council setting out the grounds of a homelessness application which they said was being made on behalf of both Mr and Mrs Hemans. The letter explained:
“How our clients are homeless Our clients are a married couple. Sean Hemans was a private in the ColdStream Guards for the last 10 years. After returning from Afghanistan in April 2007, Mr Hemans had a form of mental breakdown. The army medical officer informed him that he might be suffering from post-war syndrome. In October 2008, Mr Hemans was discharged from the Army. His MOD accommodation came to an end some three months following that date. On 13 October 2008 following a child protection conference held in the Royal Borough of Windsor & Maidenhead [K] was made the subject of a child protection plan following concerns about serious issues of abuse. Mrs Hemans and her daughter were provided with accommodation as an interim measure following an assessment that they were at risk. Mrs Hemans and [K] were moved to a woman’s refuge in Banbury and accommodated by Oxfordshire County Council in the premises they presently occupy. This was always intended to be an interim measure. The accommodation in Banbury resulted in our client being unable to continue with her employment at the Abbey National where she has worked for the last 5 years. Their office is based in Staines. Our client’s employer agreed to give her a one year career break and that expires on 20 October 2009. It is the wish of Mrs Hemans and her husband to be reconciled and to live together as a family. Mr Hemans is homeless. It is not reasonable for Mrs Hemans and her child to continue to occupy the Banbury accommodation for the following reasons. Firstly it was intended as an interim measure only. Secondly it is too far from our client’s place of work and she will be unable to commute following her return to work on 20 October 2009. The accommodation in Banbury is away from the support networks of our client’s friends. Our client has worked for the Abbey National for the last 6 years, has resided in Windsor for the last five years prior to being moved by Social Services. Our client would be unable to commute to and from work without leaving her daughter at school late in the evening before her friend can pick her up and accommodate her overnight. In our view this adversely affects the child’s welfare and impinges on our client’s right to family life. We refer further to the Code of Guidance and in particular Code 8.34 which suggests that factors that may be relevant to a particular case include accommodation which is provided to people who are assessed as fleeing domestic violence. We did inform you that actions taken by Social Services to move our client into the temporary accommodation were not done at the request our client. Our client was aware that her husband has suffered some sort of breakdown because of his time in the army. Our client hopes to reconciled with her husband once she has been accommodated back in the authority of which she has a local connection. That authority is the Royal Borough of Windsor and Maidenhead. Priority need Our client is in priority needs because she has a child aged 5 years.”
Priority need Our client is in priority needs because she has a child aged 5 years.”

Priority need

[3]Homelessness is defined in s.175: “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 resident 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. ... .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.” (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 resident 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.[4]Section 176 adds:
“Accommodation shall be regarded as available for a person’s occupation only if it is available for occupation by him together with – (a) any other person who normally resides with him as a member of his family (b) any other person who might reasonably be expected to reside with him.” (a) any other person who normally resides with him as a member of his family (b) any other person who might reasonably be expected to reside with him.”
[5]The decision letter dated 4 November 2009 stated:
“I am writing to advise you of this council’s decision regarding your homeless application. Our decision is that you are eligible for assistance, however you are neither homeless nor threatened with homelessness as you have available to you accommodation at 6, Waterloo Drive, Banbury, which is reasonable for you to occupy and remains available to you. The accommodation is 2 bedroomed accommodation which Mrs Hemans holds on an Assured Shorthold Tenancy. The tenancy agreement expires on 8th February 2010. The accommodation was found by Mrs Hemans after registering with Cherwell District Council and the landlord is registered with that Council’s private accommodation lettings scheme. You have made a joint application on the basis that you wish to live together immediately and are looking for accommodation where you can live as a family. If this is the case that you are to be reunited, there is no reason why Mr Hemans, who as a member of Mrs Hemans’ family could reasonably be expected to reside with her, could not join Mrs Hemans in that accommodation, therefore reuniting the family.”
A copy of the letter was faxed to Turpin & Miller, who responded on the same day, indicating that they were dissatisfied with it and asking that their letter be treated as a request for a review, detailed grounds for which were to follow.[6]On 8 December 2009, Turpin & Miller sent further detailed representations to the council supplemented by a seven-page witness statement signed by Mrs Hemans and a six-page witness statement signed by Mr Hemans. In her statement Mrs Hemans set out the history of their marriage and their circumstances in some detail. The points made in Turpin & Miller’s letter included:
“1. Your decision interferes with Erica Hemans’ and her daughter’s right to family life. The context in this case is one where Erica was rehoused out of the area temporarily because of domestic violence. She never wanted to move or leave her husband and complied with the request of Windsor social services to move solely because of her child. Oxfordshire County Council Social Services support her move back into the [Royal] Borough of Windsor and Maidenhead and support the aim of reuniting the family although they anticipate this will be after Mr Hemans completes his course in December 2009 and after an assessment. ... ... 3. Sean’s only local connection is with the [Royal] Borough of Windsor and Maidenhead. The family’s support network and friends live in this borough. Sean has been institutionalised as a result of being in the Army for 10 years. Your letter does not adequately take into account the effect on him of having to move to a different borough in which he knows no-one and will have no contact with people who have been in the Armed Forces. ... 7. Mr Hemans receives counselling and support in Windsor. He has no rights of occupation in respect of the property in Banbury. ... 8. Erica Hemans’ job with Abbey National Building Society was kept open for her for a period of one year until she managed to sort out her family situation. ... The new job our client has been offered will be in Windsor and the commuting distance is too far away for her accommodation in Banbury. She will not be able to get back from work in time to pick up her daughter from school and will have to arrange for her daughter to stay with a friend overnight. It interferes with Erica and her daughter’s right to family life and is inappropriate particularly given the fact that the child has long been separated from her father.”
[7]The letter continued:
“In summary Mrs Hemans’ accommodation at Waterloo Drive, Banbury was provided on a temporary measure only. Our client did not want to move to the accommodation but was informed that unless she did so and separated from her husband, there was a danger of her child being taken into care. That was the information given to our client by Windsor and Maidenhead Social Services. It was always our client’s intention to reunite with her husband. Mr Hemans’ position has throughout been of someone who has suffered severe psychological trauma as a result of being involved in two conflicts overseas. Events which led up to the departure of Erica from the matrimonial home were an aberration caused by that psychological breakdown. Following Mr Hemans’ eviction from the MOD accommodation it was the intention of the parties to reunite together back in Windsor which is the only Borough our clients have known and are familiar with. It is where their local connection is. They made it quite clear to Windsor they intended to be reunited and were informed that would not be done until Mr Hemans completed his Changing Ways Assessment Course. He has now done this.”
I add two postscripts to that letter. First, the letter was supported by a letter from the organisers of the Changing Ways Assessment Course and by Oxfordshire County Council, verifying the progress which he and the family have been making.[8]Secondly, the sentence at the end of point 7 in the quoted extract, “He has no rights of occupation in respect of the property at Banbury” was like a proverbial cloud no bigger than a hand which subsequently developed into a thundercloud that burst on the council in the judgment under appeal. I am unsurprised that the review decision letter did not pick up or respond to that single sentence.[9]The council’s review decision letter dated 4 January 2010 confirmed its previous decision: Materially as regards this appeal, it stated:
“I am satisfied that the accommodation at 6 Waterloo Drive, Banbury is available for occupation by both (Mr & Mrs Hemans) and that it is not accommodation of a temporary nature. The accommodation is of adequate size for the family and is accommodation of reasonable standard.”
The letter then went on to set out the history of applications which Mrs Hemans had made to Cherwell District Council for accommodation while she was in Banbury. In short, she had initially been put in a woman’s refuge and from there, with the local authority’s assistance, she had been put into accommodation for which she had an assured shorthold tenancy. Mr Hemans himself had made a homelessness application because he was sleeping on the sofa at the house of friends prepared to have him as a stop-gap measure.[10]The letter continued:
“I have looked at the circumstances surrounding Mrs Hemans’ departure from this area and have consulted the available paperwork. I am satisfied that the circumstances of Mrs Hemans’ departure from the Royal Borough of Windsor and Maidenhead are not relevant to this decision being considered here, which is that Mr and Mrs Hemans are not homeless. I have however considered them and I note that Mrs Hemans left the area in October 2008 and was at that time fleeing domestic violence. She entered a woman’s refuge and was estranged from her husband who was the perpetrator of the abuse. Neither Mr nor Mrs Hemans dispute this. Both Mr & Mrs Hemans engaged solicitors to resolve custody and access issues relating to their child. Mrs Hemans completed two Homeseekers forms at Cherwell District Council and did not include her husband on either. Mr Hemans made an application to this Authority on 11th June 2009 as a single person. He was duly supported in this application by Shelter who provided him with a detailed letter to set out his application and yet he did not include his wife in the application.”
Mr and Mrs Hemans said that until he had successfully completed his Changing Ways course, there was no way that the social services department would have been content to see the family reunited.[11]The letter continued:
“All of the information would serve to confirm that this marriage was at an end. As you both now wish to reunite, it is only reasonable to include Mr Hemans in the application. Indeed a joint Homelessness Application has been made and Mr Hemans’ right to join Mrs Hemans in the accommodation which she is able to provide in order to effect a reunion is a matter which I have taken into consideration in the course of this review. I believe that this accommodation at 6 Waterloo Drive is available for accommodation by Mr Hemans. ... I understand from the case papers that Mr Hemans has a car and is hoping to become a Driving Instructor. This suggests a level of mobility that would not restrict Mr Hemans from travelling from Banbury to any counselling sessions in Bracknell. Mrs Hemans has taken a job in Windsor with the Abbey National. The solicitors indicate that this is a ‘new’ job. Mrs Hemans has made a choice to take this employment and has done so in full knowledge of the travel involved. Mrs Hemans has also made decisions regarding the childcare options available to her. It is not unusual for people to commute to work. However, I am satisfied that choices of this nature cannot affect the validity of the decision made in this matter, as clearly choices as to where people take employment are not within the influence of this or any other Housing Authority.”
[12]Mr and Mrs Hemans appealed against that decision to the county court. The notice of appeal raised three grounds. Ground 1was that the accommodation at 6 Waterloo Drive, which the council had decided was available and reasonable for both Mr and Mrs Hemans to occupy, was not available for Mr Hemans’s occupation within the meaning of s.175. Therefore he should have been found to be homeless.[13]Ground 2 was that the review officer failed to give proper consideration to the question whether it was reasonable to expect Mrs Hemans to continue to occupy the premises at 6 Waterloo Drive. She too should, therefore, have been found to be homeless.[14]Ground 3 was that the review officer failed to follow regulations governing the way in which review procedures are to be conducted. On examination, that ground adds nothing of substance to the other two grounds and no more needs to be said of it.[15]The judge upheld the first ground of appeal but rejected the second ground. He therefore ordered that the appeal be allowed and the decision dated 4 January 2010 be varied to one finding that Mr and Mrs Hemans were homeless.[16]The council appeals against the decision upon ground 1. Mr and Mrs Hemans say that the judge’s decision was right on that ground but have served a respondent’s notice contending that he was wrong on ground 2.[17]Following the decision of HHJ Harris QC an order was made in the Administrative Court requiring the council to provide Mr and Mrs Hemans with interim accommodation pending this appeal, and they have been housed in the Windsor area for the last six months.[18]This court has emphasised on previous occasions that, on a second appeal of this kind, the main focus of attention is on the decision of the local authority rather than that of the circuit judge on the appeal from it, although the reasoning of the circuit judge may obviously be helpful.[19]On the first ground, HHJ Harris QC said that Mr Hemans was homeless within the meaning of s.175 because he had no accommodation available to him which fell within the language of s175(1)(a), (b) or (c). In relation to 6 Waterloo Drive, paragraph (a) did not apply in his case because he had no legal interest in the property or right to occupy it under a court order. Paragraph (c) did not apply because he was not occupying it by reason of any enactment or rule of law. That left paragraph (b). This did not apply because although Mrs Hemans might have invited him to share the property with her, and could do so if she wished, she had not in fact done so. Accordingly, he had no licence to occupy it.[20]Despite the skilful way in which Ms Bretherton has sought to uphold the judge’s reasoning, I would reject it. The argument is rather like a vanishing card trick. The adroit conjurer presents the cards in such a way that a vital card is visible at one moment but not at another. In this case, the vital card is Mrs Hemans’ willingness for her husband to cohabit with her. Mr and Mrs Hemans’ homelessness application was made as a joint application for the purpose of the family being united under one roof. It necessarily followed that, although Mrs Hemans had in the past left her husband for reasons which there is no need to repeat, she now wished him to live with her and therefore consented to him doing so.[21]Mrs Hemans did not say at any time in her evidence that her wish, and therefore willingness, to cohabit with her husband was subject to a qualification or proviso that he was not to cross the threshold of 6 Waterloo Drive. If she had, it would have put her credibility and good faith into issue.[22]It is not open for them now to say, through lawyers, “For the purpose of deciding what is suitable accommodation, you must treat us in general as a cohabiting couple, but, for the purpose of considering the availability for occupation by Mr Hemans of 6 Waterloo Drive, you must treat Mrs Hemans as a singleton who does not permit him to cohabit with her at that particular address.” To permit that would be to open the statute to obvious abuse. A licence does not have to be expressed in a particular form. In a domestic context it may be inferred from two parties’ relationship.[23]There was some discussion about the precise legal nature of a joint homelessness application. We were referred to the provision in the Interpretation Act 1978 that, unless the contrary intention appears, the singular includes the plural. In practice, joint homelessness applications are common. It is also common ground that in such cases, the council must look at the circumstances of both or all the applicants. In the vast majority of cases, it will make no practical difference whether technically it is to be regarded as a single application capable only of a single determination or two applications in a single document. I would leave further discussion of that arcane point until such time as a case may arise where it matters.[24]Ms Bretherton was on stronger ground in her criticisms of the review decision letter on the question of reasonableness. We were reminded of the guidance given by Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, [2009] 1 WLR 413 about the need for a fair analysis, rather than an over-technical approach, on the part of a court considering an appeal under s.204 from a decision of a review officer. Lord Neuberger said:50. In my view, it is therefore very important that, while Circuit Judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.51. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.52. Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.[51]With that guidance in mind, I turn to consider the criticisms made of the review officer’s decision. The first is that the review officer was wrong to say that “The circumstances of Mrs Hemans’s departure from the Royal Borough of Windsor and Maidenhead are not relevant to the decision being considered here.” That sentence must, of course, be read in the context of the letter as a whole, but in my view Ms Bretherton is right in saying that the review officer misdirected himself in taking that approach.[52]In some cases, the circumstances in which a person came to be occupying a property may have no material bearing on whether it would be reasonable to expect them to continue to occupy it, but in this case the circumstances in which Mrs Hemans came to occupy the Banbury property were intimately connected with the question whether it was reasonable to expect her to continue to live there once she and Mr Hemans became reconciled. It is fair to recognise that although the review officer stated that the circumstances were not relevant, he went on to say that he considered them. However, the way in which he summarised them was significantly different from the way in which Mrs Hemans put them forward. If the review officer was consciously rejecting her version, he gave no reason for doing so.[53]The impression given by the review decision letter was that Mrs Hemans had left her husband because the marriage at that stage appeared to her as being at an end, and she was therefore making a new life for herself and her daughter elsewhere. There was, on the review officer’s summary, no suggestion of her accommodation in Banbury being intended to be temporary.[54]That is a very different scenario from the account put forward in the representations made by Mr and Mrs Hemans’s solicitors and set out in their witness statements. The decision letter does not engage with their evidence. The alternative possibility is that the review officer did consider it but has rejected it. If so, the only reason for doing so can be the applications made by Mrs Hemans and Mr Hemans for housing during the period between the date when Mrs Hemans left the matrimonial home and the date of the homelessness application.[55]However, those applications are not inconsistent with the account put forward by Mr and Mrs Hemans. They may be capable of a different interpretation, but that is not to say that they are inconsistent with the Hemans’ account. As I have mentioned, the Hemans’ account had some support from independent sources. Mrs Hemans’ account was that she had no option about leaving Mr Hemans, if she was not to be at risk of her daughter being taken into care, and there was no realistic prospect of her being reunited with Mr Hemans until such time as social services were happy for this to occur. This could not happen until Mr Hemans had completed his course, but it was her intention at all times that this should happen.[56]It is striking that at no time was she, either directly or through her solicitors, given the opportunity to meet the suggestion, if the review officer really had it in mind, that this account was essentially fictitious. She was not questioned about it during her original interview. If the review officer had been minded to find that it was fictitious, light could well have been cast on it by the social services department, who were at all stages in contact with this family. It does not appear that any attempt was made to contact them nor any opportunity given to Mr and Mrs Hemans to obtain supporting evidence from them. I conclude that the decision letter was seriously flawed in its approach to the circumstances in which Mrs Hemans came to be living away from Windsor.[57]It was also, in my view, seriously defective in its approach to the matter of Mrs Hemans’ ability to be employed and to look after her daughter properly whilst living in Banbury. The decision letter dealt with this in the final paragraph, which I have quoted. It said that the decision which she had made about these matters “cannot affect the validity of the decision made in this matter”. In my view, that was simply wrong. What Mrs Hemans had clearly spelled out was that she had worked for the Abbey National in the Windsor area for some years - we are told that it was part-time work, either two days or one day a week -and she was not able to continue that employment when she moved to Banbury but the employers kept a job open for her for a period of one year. Now that Mr Hemans had made sufficient progress that social services were happy to support a plan for the reunification of the family, she wished to return to employment with the Abbey National, at a different office but in the same area. However, it would be difficult for her to hold that employment and look properly after her daughter, because it would mean that the daughter would have to stay elsewhere overnight. To describe those matters as irrelevant to the question whether it was reasonable to expect Mrs Hemans to continue to live in Banbury was to take far too narrow a view of the factors which were properly to be taken into account.[58]There may have been a tendency in the past for some judges on appeals under s.204 to concentrate on minutiae in the review officer’s decision letter and lose sight of the question of its overall fairness and adequacy, but to uphold this decision letter would be to tilt the pendulum too far in the other direction. Its flaws were not trivial or incidental. They went to the heart of the question whether it was reasonable to expect Mrs Hemans to continue to live in the Banbury property. Their case had been clearly set out. The decision letter was not a fair or adequate response to its main points.[59]I turn to the question of relief. In the normal way, the appropriate order would be to set aside the review decision. Because of the view which the judge took on ground 1, he went further and varied the order so as to make a positive declaration of homelessness. It follows from what I have said in relation to the first ground that in my judgment he was wrong to do so. The appropriate order which he should have made was an order quashing the review decision.[60]I do not think that, in these circumstances, it would be right for this court to uphold a form of order which the judge ought not to have made. I would therefore propose that the order be varied to an order quashing the review. This means that the review procedure will not have been completed.[61]We discussed with counsel the practicality of the way forward. Ms Bretherton argued that we should allow the judge’s order to stand on the basis that Mr and Mrs Hemans have now been living in council accommodation for the last six months and that, if the council were to serve notice to court, they would be homeless and, because of their daughter’s age, would be owed a homelessness duty. But I am not persuaded that we can, in that way, take a short cut and uphold an order which the judge ought not to have made.[62]It is clear that any further review cannot be retrospective as at the date of the review decision letter. Any further review will have to take into account present circumstances.[63]Mr Colville raised the possibility that the council may wish to investigate whether any homelessness which would ensue upon the council evicting them from their present accommodation would be deliberate homelessness brought about by Mrs Hemans’s surrender of the Banbury property.[64]I have great difficulty in seeing how that point could realistically arise. Mrs Hemans left the Banbury property in order to live with her husband in property in the Windsor area, made available to them by order of a High Court judge, in circumstances where the judge in the county court had declared that the council owed them a full homelessness duty. The argument that they ought to have managed to pay rent to keep the Banbury tenancy alive, pending this appeal, while paying rent for the new premises, and should therefore be deemed to be intentionally homeless by failing to do so, seems to me highly unrealistic, but it is right to say that the issue is not strictly before us today.[65]Mr Colville said that there might be other matters which the council would wish to explore as to whether other accommodation may be available to them so that they are not homeless. I do not think that we can exclude the council from pursuing such enquiries. They are the council charged with responsibility for these matters under the Act. I do express the hope that if the council is minded to make such further enquiries, they do so quickly and consult the social services department as far as may be appropriate in regard to the welfare of the child.[66]She has plainly had a very disrupted time. The family have now been together under the same roof for some months and she is at school. The last thing that should happen as far as her welfare is concerned is further disruption. It is plain that her family have gone through a traumatic period and it is in the interests of everybody that the situation should be resolved as soon as possible, hopefully without further recourse to the courts and expenditure on lawyers.[67]I would therefore allow the appeal to the extent which I have indicated.

Sir Andrew Morritt:

[68]I agree.[69]I also agree

Order

Appeal allowed in part.