Haile v London Borough of Waltham Forest [2014] EWCA Civ 792

[2014] EWCA Civ 792Case No B5/2013/3271
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR’S & CITY OF LONDON COUNTY COURT
HHJ BIRTLES
3BO00588
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 13 th June 2014
Before
LORD JUSTICE JACKSONLORD JUSTICE FULFORDLORD JUSTICE CHRISTOPHER CLARKE
Between
SABA HAILEAppellantLONDON BOROUGH OF WALTHAM FORESTRespondent
(Transcript of the Handed Down Judgment 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)
Ms Kerry Bretherton (instructed by Hackney Community Law Centre) for AppellantMr Christopher Baker (instructed by London Borough of Waltham Forest) for RespondentHearing Hearing date: 15 th May 2014
JudgmentLord Justice Jackson :
[1]This judgment is in seven parts, namely: Part 1. Introduction paragraphs 2 to 16 Part 2. The facts paragraphs 17 to 31 Part 3. The present proceedings paragraphs 32 to 37 Part 4. The appeal to the Court of Appeal paragraphs 38 to 42 Part 5. The law paragraphs 43 to 57 Part 6. The decision paragraphs 58 to 66 Part 7. Executive summary paragraphs 67 to 68

Part 1. Introduction

[2]This is an appeal by an applicant for housing accommodation under Part VII of the Housing Act 1996 against a decision that she was “intentionally homeless”. The issue for decision is this: should the respondent Council have considered whether the appellant’s homelessness was intentional on the date in which she became homeless or on the date of the Council’s decision?[3]The appellant is Ms Saba Haile, a 37 year old woman who is the mother of two children, born in February 2012 and November 2013. The respondent is the London Borough of Waltham Forest, to which I shall refer as “the Council”.[4]One body which provides social housing in East London is Chiltern Hundreds Charitable Housing Association. I shall refer to this housing association as “CHC”.[5]In this judgment I shall refer to the Housing (Homeless Persons) Act 1977 as “the 1977 Act”; The Housing Act 1985 as “the 1985 Act”; The Housing Act 1996 as “the 1996 Act”.[6]Section 4 (5) of the 1977 Act provided:
“Where (a) housing authority are satisfied-(i) that a person is homeless, and (ii) that he had a priority need, but (b) they are not satisfied that he became homeless intentionally, their duty… is to secure that accommodation becomes available for his occupation”
[7]Section 17 of the 1977 Act provided:
“(1) Subject to subsection (3) below, for the purposes of this Act 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 accommodation and which it would have been reasonable for him to continue to occupy … (3) An act or omission in good faith on the part of a person who was unaware of the relevant fact is not to be treated as deliberate for the purposes of subsection (1) or (2) above.”
[8]The provisions of the 1977 Act were subsequently incorporated into the 1985 Act. The 1996 Act subsequently replaced the 1985 Act. The 1996 Act is now the statute which governs the provision of accommodation for homeless persons.[9]Section 175 of the 1996 Act provides:
“(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 license 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. ... 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 license 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. (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. (4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”
[10]Section 176 of the 1996 Act provides:
“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, or (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, or (b) any other person who might reasonably be expected to reside with him.”
[11]Section 191 of the 1996 Act provides:
“(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.”
[12]Section 193 of the 1996 Act provides:
“(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 refers the application to another housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”
[13]Section 202 of the 1996 Act provides that an applicant has the right to request a review of any decision by a housing authority as to what duty is owed to him under Sections 190 – 193 of the 1996 Act. Upon receipt of such a request the authority must review its decision.[14]Section 204 of the 1996 Act provides that an applicant who has requested a review under Section 202 may appeal to the county court if he is dissatisfied with the review decision. The applicant may only appeal on a point of law arising from the decision.[15]I shall refer to the allocation of Housing and Homelessness (Review Procedures) Regulations 1999 as “the 1999 Regulations”. The 1999 Regulations set out the procedure to be followed upon reviews under section 202 of the 1996 Act. Regulation 8 (2) of the 1999 Regulations provides:
“(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant- (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.” (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”
[16]Having set out the statutory framework, I must now turn to the facts.

Part 2. The facts

[17]Ms Haile is a citizen of Eritrea, who came to the UK in January 2010 seeking asylum. The Secretary of State refused the asylum claim, but subsequently granted Ms Haile leave to remain.[18]On 10 June 2010 Ms Haile moved into a bedsitting room in a large hostel in Leyton. Her new address was: Room 708, Lea Bridge House, 497-501 Lea Bridge Road, Leyton, London E10. CHC is the landlord of that property and it granted Ms Haile an assured shorthold tenancy of Room 708. This also entitled her to shared use of the kitchen, bathrooms and other common parts of the hostel. The tenancy was for an initial term of six months and thereafter on a weekly periodic basis. It was a term of the tenancy agreement that only one person could occupy the room.[19]On 28 July 2010 Ms Haile applied to the Council under Part VI of the 1996 Act for housing accommodation. I have not seen that application. As I understand it, however, she was seeking a permanent flat of her own and that application is still in the queue.[20]In June 2011 Ms Haile became pregnant. Over the following months, for reasons which have been disputed, Ms Haile became dissatisfied with her accommodation at Lea Bridge House.[21]On 25th October 2011 Ms Haile moved out of Room 708 and went to stay with a friend, Ms Kidane, in Brixton. She subsequently returned the keys of her room to CHC or their agents.[22]On 11 November 2011 Ms Haile attended the Council’s Homeless Persons Unit. On 24th November Ms Haile made an application to the Council as a homeless person under Part VII of the 1996 Act.[23]On 24th November 2011 one of the Council’s caseworkers completed a housing advice and assessment form. This recorded that Ms Haile was probably intentionally homeless.[24]On 23rd December 2011 Ms Kidane required Ms Haile to leave. Ms Haile then moved into temporary accommodation at 24 Southfield Court, 61 Acacia Road, London E1. The Council only granted her a temporary licence to occupy this accommodation.[25]On a number of occasions Ms Haile informed the Council that she had left Lea Bridge House because of unpleasant smells there. The Council accepted that residents of different nationalities cooked a variety of foods. The Council did not accept that the smells were such that it was reasonable for Ms Haile to move out.[26]On 15th February 2012 Ms Haile gave birth to a girl, Delina Biniam. The consequence of this birth was that even if Ms Haile had remained at Lea Bridge House after October 2011, she would have had to move out in February 2012. The tenancy agreement for Room 708 only permitted single occupancy.[27]On 1 August 2012 the Council reached a decision that Ms Haile was eligible, homeless and in a priority group, but that she had become intentionally homeless. Accordingly the Council was not under a duty to provide accommodation for Ms Haile pursuant to Section 193 of the 1996 Act.[28]Ms Haile sought a review of that decision pursuant to Section 202 of the 1996 Act. Mr Minos Perdios carried out the review on behalf of the Council. He delivered his decision in a letter dated 31 January 2013.[29]Mr Perdios concluded that the smells were not such that Ms Haile was justified in leaving the hostel at Lea Bridge Road. She had voluntarily abandoned suitable accommodation, which was available to her until 15 February 2012. Accordingly Ms Haile was intentionally homeless.[30]Fortunately for Ms Haile ever since 23 December 2011 the Council have allowed her to continue to occupy temporary accommodation.[31]Ms Haile was aggrieved by the Council’s review decision. Accordingly she commenced the present proceedings.

Part 3. The present proceedings

[32]By an appellants’ notice issued in the Bow County Court on 22 February 2013 Ms Haile appealed against the Council’s review decision. She advanced three grounds of appeal.[33]The first ground of appeal was that the review officer erred in finding that Lea Bridge House was reasonable for Ms Haile to continue to occupy. It was a hostel with shared facilities. Furthermore, Ms Haile would not have been able to remain there after the birth of Delinia.[34]Ms Haile’s second ground of appeal was that the review officer failed to deal with the evidence concerning smell properly or at all. This ground turned upon an analysis of the witness statements.[35]Ms Haile’s third ground of appeal was that the review officer failed to comply with regulation 8 (2) of the 1999 Regulations. This ground was directed to the fairness of the procedure adopted by the review officer.[36]HHJ William Birtles heard the appeal sitting in the Bow County Court. In a decision dated 23 October 2013 he dismissed the appeal on all grounds.[37]Ms Haile was aggrieved by the judge’s decision. Accordingly she appeals to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

[38]By an Appellant’s notice filed on 13 November 2013 Ms Haile appealed against the decision of HHJ Birtles on two separate grounds. In the event she only obtained permission to pursue the first of those grounds. It is to the first ground that I must now turn.[39]Ms Haile contends that she could not be classified as intentionally homeless after 15 February 2012. The property which she had abandoned was no longer available for her occupation after that date.[40]Ms Kerry Bretherton, who appears for the appellant, accepts that the House of Lords’ decision in Din v Wandsworth London Borough Council [1983] AC 657 is adverse to her case. She submits, however, that the majority decision in Din is no longer good law.[41]Mr Christopher Baker for the Council relies upon Din, which he submits is still binding on this Court. He contends that there is no error in the review officer’s decision.[42]Having identified the parties’ respective positions, I must now turn to the law.

Part 5. The law

[43]In Din v Wandsworth London Borough Council [1983] AC 657 D and his wife, the appellants, and their four children were occupying suitable accommodation. By the middle of 1979 D was in financial difficulties and arrears of his rent were mounting. Because the landlord had not begun legal proceedings against him, officials of the housing authority advised him to stay. Nevertheless D and his family left the premises in August 1979, when a distress warrant for non payment of rates was served on him. He moved into unsuitable accommodation. It was accepted that by December the landlord would probably have evicted him. On 20 December the appellants applied to the housing authority for accommodation as homeless persons under the 1977 Act. The local authority refused that application on the grounds that the appellants’ homelessness was intentional.[44]The appellants appealed against that decision. They succeeded in the county court, but lost in the Court of Appeal. The House of Lords split 3:2. The majority, comprising Lord Wilberforce, Lord Fraser and Lord Lowry favoured dismissing the appellants’ appeal. They held that in deciding whether the appellants had become intentionally homeless the local authority had to look at the time when the appellants left their accommodation. If the appellants became intentionally homeless at that moment, then they were intentionally homeless thereafter. The fact that subsequent events would have rendered the appellants homeless by the time that the local authority reached its decision was irrelevant. I shall refer to the argument which the majority dismissed as irrelevant as the “subsequent hypothetical cause argument” or “SHC Argument”.[45]Lord Wilberforce gave five reasons for rejecting the subsequent hypothetical cause argument. I would summarise those reasons as follows: i) The SHC argument cannot be reconciled with the wording of the Act. ii) The Act reflects a complex interplay of interests. It confers great benefits on one category of persons in need of housing. A purposive approach to construction does not require one to expand that category of persons. iii) The SHC argument adds greatly to the difficulties of local authorities. It requires them to investigate hypothetical events as well as what actually happened. iv) The SHC argument is “not assisted by” Dyson v Kerrier District Council [1980] 1WLR 1205. v) Occupants who move out before a notice to quit takes effect are protected by section 1 (3) of the 1977 Act. They do not need to rely upon the SHC argument.[46]Lord Fraser considered that the clear wording of the Act compelled only one answer. As he put it at 617g:
“The material question is why he became homeless, not why he is homeless at the date of the inquiry.”
[47]Lord Lowry reached the same conclusion based upon the wording of the 1977 Act. He did not accept that Jobling v Associated Dairies Ltd [1982] AC 297 could be relied upon in this context to support the SHC argument. He expressed doubt as to whether Dyson was correctly decided.[48]The dissenting minority in Din were Lord Russell and Lord Bridge. They accepted the subsequent hypothetical cause argument. They too put forward cogent arguments in support of their position.[49]Lord Russell said that the statute should be construed broadly. The local authority have to consider whether the applicant has a priority need now. Likewise it should consider why he is homeless now.[50]Lord Bridge stated that under the 1977 Act the local authority had to consider three questions. They were: i) Is he homeless? ii) Has he a priority need? iii) Did he become homeless intentionally? The authority had to answer the first two questions by reference to the current state of affairs. It would be “absurd” to answer the third question by reference to historic events. See 681 C-G.[51]It would be heresy for myself or any other judge of this court to express agreement with the dissenting judgments in a case where the House of Lords has split 3:2. Suffice it to say that I can see the force of the reasoning of Lord Russell and Lord Bridge. Nevertheless I loyally accept the decision of the majority as stating the law under the 1977 Act.[52]Rv London Borough of Hammersmith and Fulham ex parte P (1989) 22 HLR 21 was a case under the 1985 Act, which re-enacted the homelessness provisions of the 1977 Act. The applicants, who lived in Northern Ireland, engaged in criminal and anti-social conduct as a result of which they received death threats from the IRA. They fled to London and sought accommodation as homeless persons. Schiemann J held that the applicants (except for one family, who had not misbehaved in Northern Ireland) were intentionally homeless. Following Din Schiemann J determined whether the applicants were “intentionally” homeless by reference to the time when they left Northern Ireland. That departure was brought about by their own deliberate conduct.[53]Counsel have drawn our attention to other cases in which courts have followed the Din approach in dealing with claims under the 1985 Act. See R v Brent London Borough Council ex parte Awua [1995] 1 AC 85; R v Barking and Dagenham London Borough Council ex parte Okuneye (1995) 28 HLR 174 and R v Brent London Borough Council ex parte Yusuf (1995) 29 HLR 48. I shall not weary the reader with a recitation of those cases, which add nothing to ex parteP.[54]The 1996 Act substantially re-enacted the provisions concerning intentional homelessness which had previously appeared in the 1977 and 1985 Acts.[55]Counsel have drawn our attention to a number of decisions under the 1996 Act, but in none of those cases did the question arise whether Din should be followed.[56]Ms Bretherton places heavy reliance on Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506. In that group of cases the Supreme Court was focusing on(a) “suitability” of accommodation under sections 206 and 210 and(b) the operation of section 175 (3). So Ali is not directly relevant to the issue in the present appeal. That case does, however, provide one straw in the wind. At paragraph 65, Baroness Hale observed:
“There may come a case in which we should re-examine the circumstances in which a finding of intentional homelessness ceases to colour all future decisions under the Act but there is no need for us to do so now.”
[57]That concludes my review of the authorities. Din unquestionably sets out the approach to be followed under the 1977 and 1985 Acts. There appears to be no decision under the 1996 Act in which the Court has considered whether to follow Din. That is the question that now arises for decision.

Part 6. Decision

[58]Miss Bretherton candidly accepts that there is no material difference between section 17 of the 1977 Act and section 191 of the 1996 Act. She submits, however, that the context is different. This is because of section 175 (3) of the 1996 Act. That provision did not appear in the 1977 Act or in the 1985 Act as originally enacted. It was added by amendment to the 1985 Act.[59]I do not accept this argument. Parliament enacted what is now section 175(3) of the 1996 Act in response to the House of Lords’ decision in Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484. Section 175 (3) is not relevant to the causation issue which arose in Din and which arises in the present case.[60]Ms Bretherton urged upon us the merits of the two dissenting speeches in Din and submitted that these now represent the law. She pointed out that we are not bound by the first instance decisions, such as Okuneye and Yusuf, which followed Din.[61]I can see the force of this argument. As I commented during the hearing, if Ms Haile sought to be rehoused under Part VII of the 1996 Act between October 2011 and February 2012, it is obvious that her claim would fail. During that period she was homeless as the result of her own deliberate act. After February 2012, however, Ms Haile was not homeless as a result of her own deliberate act. Lea Bridge House was property which she would not have been allowed to occupy.[62]Perhaps most persuasively of all, Ms Bretherton took us to Banks v Kingston Upon Thames Royal London Borough Council [2008] EWCA (Civ) 1443; [2009] PTSR 1354. The issue in that case was whether the reviewing officer had complied with Regulation 8(2) of the 1999 regulations. At [70] to [71] Lawrence Collins LJ said:
“70. Can it be said that there was a deficiency in the original decision by virtue of the fact that between that decision and the review decision Mr Banks became homeless, and consequently the original decision was, or became, deficient because it had not addressed the question of priority need? 71. A literal interpretation of regulation 8(2) would make it difficult to reach the conclusion that “there is a deficiency … in the original decision”
. On a literal approach the natural meaning of the words suggests that the focus is on the position as at the date of the decision, and my initial inclination was that there would be no deficiency in the type of case with which this court is concerned. But an important objective of regulation 8 (2) is to ensure that, where the reviewing officer is minded to confirm a decision on different grounds, the applicant should be given an opportunity to make representations. I was convinced by the argument for Mr Banks that a purposive construction should be given to regulation 8 (2) to ensure that its objective is achieved. Mr Banks, having become homeless, the original decision had become deficient in that it did not address the question of priority need.” Longmore and Wilson LJJ agreed with that judgment.[63]It is tempting to apply the reasoning of Lawrence Collins LJ in Banks by analogy to the present case. Tempting but wrong. Section 190 (1) of the 1996 Act uses the phrases “is homeless”, “is eligible for assistance” and “became homeless intentionally”. Sections 192 (1) and 193 (1) use similar phrases. The deliberate switch from the present to the past tense indicates that the Council must investigate the historic cause of the applicant’s homelessness, but consider all other issues by reference to the present state of affairs.[64]In the course of argument we discussed with counsel a number of hypothetical situations. Suppose, for example, that a tenant moves out of a hostel for no good reason. On the next day another resident starts a fire in the kitchen and the building is burnt down. Would that former tenant then be intentionally homeless? It follows from the majority decision in Din that the answer is yes. If the minority were correct, the answer would be no.[65]Mr Christopher Baker for the Council urged us not to speculate about hypothetical situations. He commended the reasons given by Lord Wilberforce for rejecting the SHC argument. He submitted that Din is a complete answer to Ms Haile’s claim. This appeal must fail.[66]I have come to the conclusion that Mr Baker is right. The House of Lords’ decision in Din is still binding. It governs the operation of the 1996 Act. As a result Ms Haile’s appeal must be dismissed.

Part 7. Executive Summary

[67]The appellant was tenant of a bed-sitting room in a hostel. She had shared use of kitchen, bathrooms and other facilities. On 25 October 2011 for no good reason she moved out and subsequently returned the keys. On 15 February 2012 the appellant gave birth to a baby, an event which would have prevented her from remaining in the former accommodation.[68]The Council subsequently decided that the appellant was intentionally homeless. That decision was upheld by the Council’s reviewing officer and subsequently by the county court on appeal. This Court dismisses the appellant’s appeal. Din v Wandsworth London Borough Council [1983] AC 657 requires the decision maker to consider whether homelessness was “intentional” at the date when the appellant quit her accommodation, not at the date of the Council’s decision.

Lord Justice Fulford:

[69]I agree.

Lord Justice Christopher Clarke:

[70]I also agree.

Cited in 3 later judgments