Viackiene v London Borough of Tower Hamlets [2013] EWCA Civ 1764

Case No B5/2012/1696[2013] EWCA Civ 1764
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)
Venue Royal Courts of JusticeDate Wednesday, 11th December 2013
Strand
London, WC2
B E F O R E:
LADY JUSTICE HALLETT
LORD JUSTICE SULLIVAN
MR JUSTICE ARNOLD
ANZELA VIACKIENE
Claimant/Appellant
-v-
THE LONDON BOROUGH OF TOWER HAMLETS
Defendant/Respondent
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Mr B Tattersall (instructed by Advoates Solicitors) appeared on behalf of the Appellant
Miss S Davies (instructed by Tower Hamlets) appeared on behalf of the Respondent
J U D G M E N T
Between
ViackieneAppellantLondon Borough of Tower HamletsRespondent

LORD JUSTICE SULLIVAN:

[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" - see section 191(1) of the Housing Act 1996 ("the Act").[2]The appellant applied to the respondent for assistance under Part 7 of the Act. In a Decision Letter dated 21st November 2011 the respondent concluded that the appellant was intentionally homeless. The appellant asked for a review. In a Review Decision Letter dated 24th January 2012 the respondent upheld its original decision. The appellant appealed to the County Court under section 204 of the Act. In a judgment dated 11th June 2012 His Honour Judge John Mitchell dismissed her appeal. She now appeals to this court with the permission of Aikens LJ on one ground: was the judge correct to hold that the reviewing officer was entitled to find that the appellant had become homeless intentionally?[3]The background facts are set out in some detail in paragraphs 2 to 6 of the judge's judgment, and in much greater detail in the Review Decision Letter. In summary, in October 2007, the appellant and another tenant, Mr Joncys, signed a joint assured shorthold tenancy agreement in respect of a property, 6 Leerdam Drive E14. Both tenants were jointly and severally liable for the full rent which was initially £1560 per month, subsequently reduced, with the landlord's agreement, to £1408 a month. The appellant and her co-tenant agreed between themselves that they would share liability for the rent, with the appellant contributing £1,000 per month and Mr Joncys (referred to in the judgment below as "SJ") contributing £560, subsequently £408 per month. The landlord was aware of this arrangement.[4]Although for most of the time the appellant paid her share of the rent, Mr Joncys lost his job in 2009 and thereafter failed to pay his share of the rent. In consequence the arrears mounted up and after a number of warnings the landlord eventually took possession proceedings. The Review Decision Letter[5]Having set out the history of the matter the Review Decision Letter dealt specifically with the issue of intentionality. Section 191 was set out in full and when considering whether the appellant's case fell within the terms of the section, the reviewing officer very sensibly adapted a step by step approach by reference to a checklist items A to G, based on guidance and developing case law. Item A on the check list was:
"The [appellant] must deliberately have done something or failed to do something"
Under that heading the reviewing officer said:
"You failed to maintain the rent account and failed to ensure payments lawfully due were paid on time, or at all. This situation continued over a period of at least two years, during which you were reminded of your obligations, and given opportunities to rectify the situation. The opportunities included the offer of help with your difficult co-tenant, which you turned down."
[6]Having gone through the checklist of items A to G, the reviewing officer summarised the conclusions he had reached. His summary included following paragraph:
"The joint arrangement was not chosen by the landlord, and the joint tenant was not selected by him. The arrangement was put forward by you, and the joint tenant introduced by you. You were regularly warned of the developing arrears, and of the likely consequences. Your responsibilities were explained to you. You were offered help in sorting the problem out, but maintained this was not needed."
The reference to the offer of help which was turned down by the appellant was a reference to an e-mail exchange on the 29th June 2010, in which the landlord's agent, Miss Pinon, had said in response to an e-mail from the appellant:
"For the record, I have in the past suggested that we found a more suitable tenant to share the house with you as you did experience the second tenant messing you about with the rent payment. But you did not agree to this and assured us the second tenant was able to continue to pay his part of the rent."
[7]When considering the issue of affordability in an earlier passage in the Review Decision Letter the reviewing officer had said this:
"I think the solicitor means me also to consider whether the property would have been affordable in its entirety had you attempted to maintain the rent alone. I am not certain that this is correct. You knew in setting up the tenancy that the overall rental payment depended on a third party, even if you did not then, as you claim, know the exact nature of your liabilities. But it is clear that Ms Pinon offered to help you find a more suitable sharer. I suspect that dealing with Mr Joncys and setting up a new co-tenant would not have been as straightforward as Miss Pinon might have hoped, but it could nevertheless have been achieved with your cooperation. The offer was refused."
The reviewing officer then went on to consider the issue of affordability on the basis that a new co-tenant could not have been found so that the appellant would have had to pay the whole of the rent herself. The Judgment[8]The judge set out grounds 1 and 2 of the section 204 appeal in paragraph 15 of the judgment. Those grounds were. "1. The decision was one which no Authority acting reasonably could have reached:(i) the Authority took into account an irrelevant consideration, namely the appellant's failure to replace SJ with another tenant;(ii) the Authority took into account an irrelevant consideration, namely, the appellant's failure to obtain a reassessment from the Housing Benefit Department for eligible rent of the property. 2 The Authority failed to provide adequate reasons how it was proposed to remove SJ and preserve the appellant's tenancy." The judge dealt with these two grounds together. His conclusions are contained in paragraphs 26 to 29 of his judgment:
"26. When approaching the first two grounds of appeal it is important to bear in mind that the Appellant was legally responsible for the rent. The Reviewing Officer decided the Appellant was given the opportunity of doing something about getting the second tenant to pay. He pointed to the offer made by the agent of help. In addition, in 2009 the Appellant had a solicitor acting for her in possession proceedings. No evidence was forthcoming from her about whether or not she sought advice from the solicitor as to what to do about the second tenant but advice was available. The Reviewing Officer also pointed to the fact that because her daughter had turned 16 she would have been able to qualify for Housing Benefit for a three-bedroom property and therefore the housing benefit would have covered the whole of the rent. He is criticised for this by the Appellant because she would not receive Housing Benefit while SJ was still there. That is right, but the Reviewing Officer was, in my judgment, directing himself to what steps the Appellant could take. She could try to put pressure on SJ, whether moral pressure or by talking to the landlord whereby both would be evicted and she would then be granted the tenancy for the whole of the three-bedroom property for herself and her two daughters. After all, she had been paying her portion of the £1,000 and the landlord had no other reason not to have her as a tenant. The Reviewing Officer was not merely saying 'You can take legal action to get rid of him': there were a number of possibilities. 27. The Reviewing Officer, in my judgment, was entitled to find that the Appellant's failure to take those steps to try to evict SJ, to try to negotiate with the landlord, to see whether or not Housing Benefit would be available for the whole property were steps which she should properly have taken and a failure to take those steps amounted to intentional behaviour on her part. 28. It is argued that those matters were irrelevant. I cannot see how they are irrelevant because the central issue in this case was whether or not the Appellant was intentionally homeless. She was an intentionally homeless because the rent was not paid and it was her responsibility. She was intentionally homeless because her co-tenant would not perform his part of agreement with her. But it was her failure to comply with her agreement with the landlord which ultimately led to her being intentionally homeless. But she did have it within her control to take steps to alleviate the situation. 29. In my judgment the Reviewing Officer cannot be criticised for taking into account the steps she should have taken and in my judgment his decision, that the defendant was intentionally homeless is one he was entitled to take in all the circumstances."
Discussion[9]On behalf of the appellant Mr Tattersall does not challenge the reviewing officer's factual conclusion that the landlord had, through his agent, Miss Pinon, offered to help the appellant find a more suitable co-tenant; that is to say a co-tenant who would be prepared to pay for his or her share of the monthly rent for which the appellant was jointly and severally liable. Equally, there is no challenge to the reviewing officer's factual conclusion that the appellant refused that offer of assistance from the landlord.[10]It seems to me that it is of no practical consequence whether the appellant's conduct is categorised as an act (refusal of the landlord's offer) or as an omission (failure to accept the landlord's offer). In either case the reviewing officer was entitled to conclude that the appellant's conduct was deliberate. It matters not whether it was a deliberate act or a deliberate omission. Reading the Review Decision Letter as a whole, there can be no doubt that the reviewing officer did conclude that turning down the landlord's offer was deliberate.[11]When we asked Mr Tattersall why in those circumstances the reviewing officer was not entitled to conclude that there had been a deliberate act or failure to act on the part of the appellant in consequence of which she ceased to occupy the accommodation, he submitted that there were what he described as "restraining factors" on the appellant. When we asked him what those factors were he said that they were:(i) the appellant was concerned about the suitability of the other accommodation that she might be offered by the landlord;(ii) she wished to keep Mr Joncys as a co-tenant if possible because the status quo was satisfactory from her point of view;(iii) she was concerned who she might have as a new co-tenant and allied with this;(iv) the new tenant would be an unknown quantity so she might face the same problems all over again of credibility to pay the rent;(v) the appellant was under emotional pressure at the time. The pressure was caused by the fact that she was under threat of being evicted from the home that she shared with her daughters.[12]Mr Tattersall fairly accepted that the appellant, with the benefit of hindsight, should perhaps have made a more conciliatory response to the landlord's offer but he submitted that these five factors to which I have referred were relevant matters, which should have been taken into consideration by the reviewing officer when considering whether or not the appellant's conduct in turning down the landlord's offer was deliberate.[13]There are a number of difficulties with that submission. The first of the reasons, the concern about the unsuitability of other accommodation does not really address the offer that was being made by the landlord which was turned down by the appellant. The offer was to help with finding a more suitable co-tenant of the appellant's existing property.[14]So far as the wish to keep Mr Joncys as a co-tenant is concerned, that is a somewhat surprising proposition because there is no dispute that there was no relationship other than a purely commercial one between Mr Joncys and the appellant. That commercial relationship of course had broken down because Mr Joncys was unable to pay his share of the monthly rent. Moreover, there is no indication that this consideration, a desire to keep Mr Joncys as co-tenant because he represented the status quo, was a matter which was drawn to the attention of the reviewing officer. When she sought a review the appellant was represented by solicitors and they made a number of points which are set out in the reviewing officer's decision. The points made by the solicitors do not touch on the matters put to us by Mr Tattersall this morning.[15]There is however a case officer's file note which summarises the appellant's response in an interview with the case officer. It is plain from the file note that the issue of the landlord's offer and the appellant's refusal to accept it was raised. The note says this:
"... Miss V declined the l/l's offer and said she would sort it with Mr J but when this did not work she should have gone back to the l/l not simply ignore the situation and the escalating arrears."
The case note of course does not purport to be a verbatim account, it merely confirms that the issue of the offer and the appellant's refusal of it was addressed. The note of the appellant's response to this point is simply:
"Miss V thinks that this is not fair and blames the situ on Mr J."
There is no suggestion in these notes that the appellant was concerned to keep Mr Joncys as a co-tenant, notwithstanding the fact that he was not paying the rent. Nor is there any suggestion that she was concerned as to who she might find she had as her new co-tenant, nor that she was concerned that a new co-tenant would be an unknown quantity and would be unable to pay the rent in the same way as Mr Joncys had been. Nor indeed is there any indication of the fact that she was under emotional pressure such that she was unable to make a fully informed and rational decision.[16]I would readily accept that anyone who is under threat of losing their home will be under emotional pressure. But the fact that the appellant was under that pressure makes it all the more extraordinary that she did not accept the offer of help that was extended to her by Miss Pinon. This was a case in which there was no reason to doubt the genuineness of the landlord's offer . The correspondence between the landlord and the appellant, which was before the reviewing officer, demonstrated that the landlord had been a model of forbearance and was simply concerned to have a tenant or tenants who would pay the monthly rent that was due. The landlord had, for example, agreed to reduce the monthly rent and had on a number of occasions agreed to accept rent late.[17]The reviewing officer in the Review Decision Letter recognised that finding a new co-tenant might not be straightforward but concluded that it could nevertheless have been achieved with the appellant's co-operation. It seems to me that was an imminently reasonable conclusion. Even if it is assumed that Mr Joncys would have been unwilling to co-operate, Mr Tattersall accepted that the landlord could have terminated the joint tenancy on the basis that the rent was not being paid, commenced possession proceeding, enforced those proceedings against Mr Joncys, and then granted the appellant, with or without a new co-tenant, a fresh tenancy. As the reviewing officer recognised, the process might not have been entirely straightforward but with the appellant's cooperation and a cooperative landlord there was no reason why it could not have been achieved.[18]In these circumstances, it seems to me that there is simply no possible error of law in the reviewing officer's conclusion that this was a case, where, as a consequence of something that was deliberately done or not done by this appellant, she became homeless. For those reasons I, for my part, would dismiss this appeal.[19]MR JUSTICE ARNOLD: I agree. I would only add that, as counsel for the respondent points out in her skeleton argument, there were at least three different mechanisms by which the appellant could have achieved the replacement of Mr Joncys by another co-tenant. One of those mechanisms would have required Mr Joncys' co-operation, the other two would not. But so far as the evidence goes, the appellant made no effort to explore any of these avenues at all.

LADY JUSTICE HALLETT: I too agree.

Cited in 1 later judgment