Noel & Anor v London Borough of Hillingdon [2013] EWCA Civ 1602

Case No B5/2013/0288[2013] EWCA Civ 1602
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HER HONOUR JUDGE FABER)
Venue Royal Courts of JusticeDate Thursday, 21 November 2013
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
LORD JUSTICE LEWISON
MR JUSTICE COLERIDGE
Between
PATRICK NOELAppellantLUCY FERGUSONAppellantv
Between
LONDON BOROUGH OF HILLINGDONRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Carter (instructed by Warnpala & Co) appeared for AppellantMr L Johnson (instructed by London Borough of Hillingdon) appeared for Respondent
J U D G M E N T
[1]Following his release from HMP Wormwood Scrubs in May 2010, Mr Noel went to live with his partner Ms Ferguson at 255 Shakespeare Road in Hayes. That was her parents' home, which she and her child were sharing with them. After a couple of months, Mr Noel took an assured shorthold tenancy of a three bedroomed house at 124 Woodlands Avenue in Ruislip. The tenancy began in July 2010 and the monthly rent that Mr Noel agreed to pay was £1,350. His income at the time (made of up various benefits) was just over £1,000 per month. It was obvious, therefore, that he would not be able to afford the rent at that time, unless he found some paid work. In fact according to the rent records, Mr Noel only made intermittent payments of rent, and did not transmit even the housing benefit that he did receive to the landlord. Rent arrears began to accrue almost immediately. The landlord attempted to set up a payment plan, but Mr Noel did not comply with it. The landlord then began proceedings for possession.[2]In February 2011, Ms Ferguson and her son moved in with Mr Noel. Mr Noel did not contact the housing benefit department to seek an increase in his benefit. In due course the inevitable happened. The landlord's possession action came before the court and was successful. At that point Mr Noel applied to Hillingdon as a homeless person.[3]Hillingdon's initial determination was contained in a letter of 6 September 2011, which contained the following:
"As you failed to pay any rent, your landlord set up a payment plan. However, you made excuses not to pay. You began threatening the landlord, and due to your failure of rent, the notice was served. They have supplied a rent statement showing your arrears whilst you resided at 124 Woodlands Avenue, Ruislip, Middlesex, HA4 9RH. It is apparent you failed to pay your monthly rent on several occasions. You made sporadic rent payments of small amounts until October 2010. The total rent due was £14,850, and you made total payments of £2,300. However, as you failed to reduce or clear the level of rent arrears, therefore you were evicted by a bailiff's warrant for arrears of £14,009.86 on 7 June 2011. The landlord advised that even if you used funds received from housing benefit to pay the rent, this could prevent the eviction."
[4]Mr Noel asked for a review of that decision, but those conclusions in the determination were not themselves challenged. The decision was upheld on review, and also on appeal to the County Court. For the reasons that follow, I would uphold both decisions.[5]In considering the legal framework that applies to this case, I will repeat much of the analysis that I carried out in Chishimba v Kensington and Chelsea RLBC [2013] EWCA Civ 786, [2013] HLR 34.[6]Whether a person is intentionally homeless depends on section 191 of the Housing Act 1996. That section provides, so far as material:
"(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."
[7]If B happens in "in consequence of" A, then A must play a causative part in the occurrence of B. In the context of section 191, A must be a deliberate act or omission of the applicant. It need not be shown that the applicant deliberately did something for the purpose of getting himself turned out. It is enough that he deliberately did something or omitted to do something which had that consequence; R v Salford City Council ex parte Devenport [1983] 8 HLR 54.[8]The cases show that where there are potentially multiple causes of a person's homelessness, the decision maker must carefully evaluate the facts in order to see whether the applicant's homelessness is shown to have been the likely consequence of his deliberate act or omission; see Watchman v Ipswich Borough Council [2011] EWCA Civ 358, [2011] HLR 33. Sometimes this has been described as the "effective" cause.[9]The ultimate question is: what is the real or effective cause of the homelessness? That question should be answered in a practical common sense way and it is more than a "but for" test. The effective cause will often be the chronologically proximate cause, but it need not be; see R v Hackney LBC ex parte Ajayi [1997] 30 HLR 473.[10]If there is more than one operative or effective cause, it suffices that only one of them is the deliberate act or omission of the applicant; see R v London Borough of Hammersmith and Fulham ex parte P [1989] 22 HLR 21 and O'Connor v Kensington and Chelsea RLBC [2004] EWCA Civ 394, [2004] HLR 37.[11]In some cases, the chain of causation will be linear. If a set of dominos falls over, it does not matter that the applicant did not knock over the last domino if he set the domino effect in motion. In such a case, the control mechanism is that of the objective likelihood that effect of the deliberate act or omission is that homelessness will be the end result; see Stewart v Lambeth LBC [2004] EWCA Civ 753, [2002] HLR 40. In other cases, there will be parallel causes. In such a case, the test will be satisfied if one of those causes was the deliberate act or omission of the applicant. Ultimately the question is one of fact for the local authority, directing itself properly in accordance with the law.[12]There are a number of cases in which occupiers have been held to be intentionally homeless where the immediate cause of their homelessness has been the accrual of mortgage or rent arrears. I referred to those cases in Chishimba, and I need not repeat those references.[13]The common feature of those cases was that the entry into a transaction that the applicant could not afford had been held to have been a cause of his eventual homelessness. Since in those cases the applicant entered into those transactions deliberately, one of the causes of his homelessness was likewise his deliberate act.[14]In the present case, Hillingdon decided that the cause of Mr Noel's homelessness was "due to rent arrears". That reasoning was amplified under the bullet points contained in the review decision. Hillingdon stated:
"Mr Noel deliberately failed to meet his rental liability, having deliberately selected a property for private rental which was initially too large and too expensive for his housing needs at that time. This led him to accrue significant rent arrears. When he later had an opportunity to make a claim for a higher housing benefit allowance, due to an increase in the size of his household, he omitted to do so. Ms Ferguson is also implicated in the latter, having chosen to join the household along with her son and not claim housing benefit."
[15]The decision letter went on to say that they had lost their accommodation, "as a direct result of their actions and omissions detailed above."[16]Accordingly, Hillingdon had decided that there were two operative causes of Mr Noel's homelessness. It was not just a question of his having taken on a tenancy that he could not afford.[17]Mr Carter, appearing on his behalf, says that this is a case of linear causation all stemming from Mr Noel's initial decision to take a property that he could not afford, and he submits that by the time Ms Ferguson moved in, significant arrears had already accrued, and that there was no more that could be done about it. Homelessness was therefore inevitable. However, as the initial decision pointed out, Mr Noel had not merely failed to pay the full contractual rent, he had not even paid his housing benefit, and the initial decision was that had he done so, that would have been enough to stop the eviction. Moreover, in the review letter, Hillingdon had said of his omission to apply for the increase in housing benefit that:
"It is highly likely that if he had done so, and provided the necessary proofs of residence and income, else have been eligible to claim a higher rate of housing benefit and thereby resolve his arrears problem going forward. None of your representations on Mr Noel's behalf have addressed this."
[18]In Denton v Southwark LBC [2007] EWCA Civ 623, 2008 [HLR] 11, a young man had been asked to leave his mother's home because of his unacceptable behaviour. She would have been willing to continue to provide him with a home if he had been prepared to abide by her house rules, which were reasonable rules. It was in that context that Arden LJ said that the question whether it was reasonable for the applicant to have continued to occupy the accommodation was to ask whether it was reasonable for the applicant to continue to occupy the premises in question, ignoring the act or omissions for which the applicant was himself responsible.[19]In our case, if the only act or omission that caused Mr Noel's eventual homelessness had been his taking a tenancy that he could not afford, then in conformity with Denton v Southwark LBC, what Hillingdon should have done would have been to wind the clock back to the position as it was before Mr Noel took the tenancy. In other words, had those been the facts, what Hillingdon should have done would have been to consider whether it was reasonable for Mr Noel to continue to occupy 255 Shakespeare Road, assuming that to have been settled accommodation, rather than 124 Woodlands Avenue. That is, in essence, the ground of appeal for which permission to appeal has been granted.[20]Mr Carter also argues that because Mr Noel could not afford the rent when he took on the tenancy at 124 Woodlands Avenue, it was never accommodation at all for the purposes of the Act. I reject that submission. In the first place, as I have said, Mr Noel could have found work, and once he became entitled to apply for the increase in housing benefit and could have paid the rent, undoubtedly it became accommodation at that time.[21]The key, however, is that this is not a case in which there was only one cause of Mr Noel's homelessness. There were two. The second cause was his omission to apply for an increase in housing benefit. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 provides that in determining whether it would be reasonable for a person to continue to occupy accommodation, housing benefit must be taken into account.[22]So in conformity with Denton v Southwark LBC, one must ask what would have happened if that omission, that is to say the omission to apply for an increase in housing benefit, had not occurred. The answer, according to Hillingdon, is that Mr Noel would have received an increased payment and would have been able to resolve the problem of arrears going forward. That was a question of fact for Hillingdon, to which no challenge has been made. Once that has been determined, then the question is whether it would have been reasonable for Mr Noel to have continued to occupy 124 Woodlands Avenue on the assumption that he would have received a higher payment by way of housing benefit. That is the question that Hillingdon considered and which they answered as follows:
"124 Woodlands Avenue, Ruislip, HA4 9RH would have been reasonable for Mr Noel and Ms Ferguson and her son to continue to occupy, had they paid for the rent for the property by making the appropriate housing benefit claim."
[23]In my judgment, that is a decision on the facts that Hillingdon was entitled to make.[24]I conclude therefore that no error of law in Hillingdon's decision has been demonstrated; and I would dismiss the appeal.

MR JUSTICE COLERIDGE: I too would dismiss the appeal.

LORD JUSTICE RICHARDS: I agree.

Cited in 2 later judgments