Huda v The London Borough of Redbridge [2016] EWCA Civ 709

Case No B5/2014/3051[2016] EWCA Civ 709
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
CENTRAL LONDON
His Honour Judge Hand
3RM01344
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/07/2016
Before
LADY JUSTICE ARDENLADY JUSTICE BLACKLADY JUSTICE KING
Between
HudaAppellantThe London Borough of RedbridgeRespondent
Mr Lindsay Johnson (instructed by the SA Law Chambers Solicitors) for AppellantMs Josephine Henderson (instructed by the London Borough of Redbridge Legal Services) for RespondentHearing Hearing date: 8 June 2016
Judgment
[1]This appeal is from the order dated 8 August 2014 of HHJ Hand QC sitting in the Central London County Court dismissing the appellant’s appeal under section 204 of the Housing Act 1996 (“HA 96”). The issue is whether the final review decision (“the final review decision”) of the respondent authority (“R”), comprising a review letter dated 17 May 2013 and a supplementary review letter dated 3 January 2014, was wrong in law in its conclusion that the appellant’s accommodation was not “settled” so that he was still “intentionally homeless.” As is well known, the effect of that conclusion was that the appellant was by law ineligible under the Housing Act 1996 (“HA 96”) for further social housing and would have to enter the private sector. The appellant contends that he has ceased to be “intentionally homeless” because he has been occupying, with his family, a property (at 47 Wanstead Park Road, Ilford, Essex IG 1 3TG (“47 Wanstead”) under licence from a third party (L), which was procured by R for his benefit in performance of its limited housing duty to persons in priority need who are intentionally homeless. This is because section 190(1) and (2) HA 96 provides: 190 (1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.

(b) [not relevant - deals with advice and assistance]…

[2]The concept of “settled accommodation” is described by Ackner LJ in Din v Wandsworth LBC (Transcript, 23 June 1981). Basing himself on the proposition that it would be wrong if a person could not rid himself of the status of “internationally homeless,” Ackner LJ explained how the law allowed him to do so: To remove his self-imposed disqualification, he must … have achieved what can be loosely described as “a settled residence,” as opposed to what from the outset is known (as in Dyson's case) to be only temporary accommodation. What amounts to “a settled residence” is a question of fact and degree depending upon the circumstances of each individual case. I can see no reason why the good sense of the local authority cannot be relied upon for making the right decision. There is always the Court's supervisory jurisdiction upon which an unsuccessful applicant can, in a proper case, rely.[3]The House of Lords approved of this concept both on appeal in the same case [1983] 1 AC 657 and in the later case of R v Brent LBC ex p Awua [1995] 1 AC 55. At page 69, Lord Hoffmann made the following observations on the passage just cited in which he analysed the concept in terms of causation: The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. This jurisprudence is well-established (it was approved by this House in Din's case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken. It is the importation of the distinction between settled and temporary accommodation into other questions arising under Part III of the Act which seems to me unwarranted.[4]The Supreme Court considered Din in Haile v Waltham Forest LBC [2015] 1 AC 1471, but the judgments of the Supreme Court in that case do not affect the concept of “settled” accommodation as explained by Ackner LJ and Lord Hoffmann in the passages set out above.[5]As Ackner LJ explained, the question whether accommodation is settled is one of fact and degree. The concept is used in different contexts in housing law. In R v Croydon LBC, ex p Easom (1992) 25 HLR 262 (Andrew Collins QC sitting as a judge of the High Court), two British emigrants to Australia who had lost their home there because they were not permitted to settle there were held to be intentionally homeless: their right to occupy their home in Australia was precarious because of their immigration status. So too, a young mother who had been intentionally homeless and who took up a 6-month assured tenancy on the express basis that it would not be continued after 6 months, was held not to have had “settled accommodation”: Knight v Vale RBC [2004] HLR 106. At page 116, this Court took account of the fact that accommodation in the private sector would normally be on an assured shorthold tenancy for 6 months and that the grant of such a tenancy would be likely to lead to the result that the tenant had had “settled” rather than temporary accommodation. This line of authority creates a difficulty for any appellant because, on an appeal under section 204 HA 96, neither this Court nor the County Court can itself make any finding of fact, nor can it set aside any finding of fact unless the reviewing officer made a material finding perversely.

Background

[6]The judge’s careful judgment sets out the background in detail. I have set out the relevant paragraphs in the annex to this judgment. In a nutshell, the appellant had been found to be intentionally homeless in previous review decisions, which can no longer be challenged, because he had been offered accommodation which it was reasonable for him to accept. R had initially caused L to accommodate him at 47 Wanstead only on a temporary basis under sections 188 and 190 of the Housing Act 1996, but, owing to an internal error by R, no step was taken to evict him for some two years. The appellant occupied 47 Wanstead on the basis of a written licence granted by L, which was never varied.

The final review decision

[7]The overall conclusion of the final review decision was that the appellant’s occupation of 47 Wanstead did not break the chain of causation between the intentionality of his homelessness and a new application treated as made after service of the notice to quit. The two letters comprising the final review decision are to be read together. I refer only to the parts of these documents relevant to this judgment and I will not therefore deal with matters which are not in dispute on this appeal.[8]The reviewing officer found as a matter of fact that the appellant had continued to live at 47 Wanstead because of R’s administrative error. Failure to evict the appellant was therefore not indicative of a decision to allow the appellant to remain. The appellant had benefited as a result. The reviewing officer then held that 47 Wanstead had been provided under section 190(2) and that: Accommodation under this provision is simply not capable of being settled.[9]The reviewing officer took into account the length of time the appellant had lived at 47 Wanstead but held that it could not be determinative. Occupation was “precarious” with “little security of tenure”.[10]As to the nature of the occupancy right, the reviewing officer found that this was a licence and not a tenancy. The appellant did not have exclusive possession. The reviewing officer expressly found that the licence was not a sham. The landlord was L, not R. As a result of the decision of this Court in Desnousse v Newham LBC [2006] QB 831, the Protection from Eviction Act 1977 (which would necessitate a court order) did not apply if the accommodation was provided under section 190(2) HA 96. The reviewing officer held that this would be the case even if the accommodation was no longer properly so provided because of R’s error. Nonetheless, in the circumstances of the case, the reviewing officer considered that the security of tenure the appellant would have if he were an assured tenant would still not have made 47 Wanstead settled accommodation.[11]The reviewing officer then concluded as follows:
“Since the beginning of the licence Mr Huda has occupied the accommodation that was provided by the Provider [L] under the same terms, with the specific intention of it being used to fulfil Part VII duties. The provision of the accommodation has continued to be connected to the Council and the framework agreement that the Council has with its partner providers specifically to secure access to temporary accommodation. There have been no implied or express actions on behalf of either the Authority or the Provider that would indicate that the accommodation was subsequently provided for any other reason. There has been no separate licence or tenancy offered to Mr Huda, he has not been advised, for instance, that despite there no longer being any s190(2) duty, he would continue to be accommodated on a discretionary basis. Indeed there is no duty or even power to continue to accommodate an applicant found to be intentionally homeless under any other provision; there is no discretionary power analogous to that [in] s192(3). The continued occupation, which clearly only continued under the terms of the letter dated 15 October 2008 which expressly refers to the accommodation being Part VII accommodation, cannot be said not to be provided in connection with Part VII obligations, even acknowledging the passage of time. That the Council continued to pay the Provider the nightly charge, which the 2008 letter clarifies it will only do until “the Council ceases to be under a duty to secure accommodation”, also indicates the connection between the provision of accommodation and part VII obligations. Although the facts of the case are exceptional due to the passage of time, to argue that at some point in time the licence accommodation were no longer provided under s.190 (2) such as to now attract protection from PEA would raise the question of when this would occur, a question that would have to be decided on a case by case basis. The uncertainties that inevitably arise from this situation would clearly further cloud an already uncertain area of housing administration and law and would seem highly undesirable. It would almost inevitably lead to arguments by applicants being evicted from licence accommodation that the s. 190(2) period had expired and that they had now acquired protection. The response from Local Authorities would likely be to limit the period of s.190(2) accommodation to avoid such challenges. In summary, I do not think the criticisms in the [supplementary skeleton argument] are serious ones, they would indicate that s. 190(2) had never been provided, which cannot be the case. The occupation has continued in exactly the same manner throughout with the only terms being those in the 2008 letter which was an offer of Part VII accommodation. No subsequent agreement has been made either with the Authority or the Provider. The Authority, on whose instructions (or lack thereof) the accommodation has continued, has no duty or power under which it could continue to allow occupation in temporary accommodation other than s. 190(2). Under those circumstances, I believe there is no alternative than to conclude that it has been provided under those provisions. … However, and in any event, even if all that I have said above is purely fanciful and in fact the accommodation has the highest level of protection possible in the circumstances (i.e. that it is an assured short-hold tenancy) I would still conclude that the accommodation was not settled. The question is not the form of an applicant’s occupation right but the fact and nature of their occupation taken as a whole. The length of time and their security of tenure are therefore relevant factors but are not determinative. Overall I would say that the accommodation was at all times precarious and occupied in circumstances that were incompatible with it being settled. The accommodation was precarious not because it was believed it would not take long to evict Mr Huda (although I accept that this was briefly mentioned as a factor in the RD), it was precarious because the Authority could and were very likely to instruct the Provider to evict Mr Huda at a time shortly after the decision on 13 January 2010; this was initially scheduled for 15 February 2010. Had the simple, albeit serious, administrative error not taken place after 16 February 2010 the accommodation would have ended much sooner. Had Mr Huda made complaint about disrepair earlier such that the relevant team within the Authority became aware that he continued to occupy the property in error, the accommodation would have ended much sooner. Had the error been happened across in day to day dealings of a Council officer or had they by chance seen a particular Council report and noticed the error, the accommodation would have ended much sooner. It cannot be said under these circumstances when any given day may reveal the error and result in an instruction to evict, that Mr Huda did not occupy the accommodation precariously. That the eviction procedure may have taken months rather than weeks if he occupied as an assured short-hold tenant does not alter that the accommodation was at all times during the relevant period occupied on borrowed time. Further, Mr Huda was aware that his situation was precarious, he was notified in on 22 December 2008 and 13 January 2010 in the Council’s decision letters, he was verbally informed of the limited nature of the assistance that would likely be made available to him from the beginning of his application until the end, when he was verbally advised on 15 January 2010 of the implications of the decision and the possible need to approach Children’s Services. Mr Huda has benefited significantly from a simple administrative error to the cost, not just of the local authority but also other homeless households towards whom this valuable resource might otherwise have been put. He should not be allowed to benefit any further.”

Judgment of the Judge

[12]The appellant then appealed to the County Court under section 204 HA 96. HHJ Hand QC dismissed that appeal. The judge held that this was an unusual case, and whilst in this case the facts were different from those in Easom, occupation of the property, in this case was similarly “precarious” as the mistake could been have discovered at any time. The finding by the reviewing officer that the accommodation could not be regarded as settled was “unimpeachable” and was open to him on the evidential material.

Discussion

[13]Mr Lindsay Johnson, for the appellant, opens with the powerful point, supported by robust remarks by Sir Robin Jacob when giving permission to bring this second appeal, that the appellant had been living at 47 Wanstead for some 4 years. He fairly accepts that the first two years do not count because R was investigating whether the appellant was owed a full housing duty, and that therefore the relevant period is from 13 January 2010 (when the previous review was concluded without an appeal) to 16 July 2012, when the appellant made a further application for housing. But even two years is a long time from which it could be inferred that what has happened is that R has effectively agreed to his being there indefinitely whatever the licence says.[14]In his skilful oral submissions Mr Johnson goes on to argue that the reviewing officer was wrong in law to conclude that the licence was still a licence. At some point during that period, Mr Johnson submits, the appellant must have become an assured tenant.[15]Mr Johnson argues that when considering precariousness the reviewing officer would have to approach the matter somewhat differently if there was an assured tenancy because, as explained in paragraph 5 above, this Court in Knight held that where accommodation was held on an assured tenancy it was likely to be settled accommodation. The status of the occupancy as an assured tenancy would have to be given additional weight. The reviewing officer would have to take into account that the housing authority would have to adopt a process for removing him.[16]The difficulty with this submission is that the reviewing officer expressly considered the possibility that the appellant occupied 47 Wanstead other than as a licensee, and rejected it. Indeed the main significance (as I see it) of the finding that R had acted under an administrative error during the relevant two-year period is that it negated the taking of any step by them to improve the appellant’s position in relation to 47 Wanstead. To succeed on his argument, Mr Johnson has to show that the reviewing officer’s decision that the accommodation was held on a licence was perverse so that it constituted an error of law. Mr Johnson did not put forward any basis for this.[17]In my judgment, the reviewing officer looked at the situation as a matter of substance on the facts. The reviewing officer concluded that the licence was not a sham and that the appellant’s occupation was, as the final review decision put it, “precarious” throughout the relevant period. Moreover, as I have described, the reviewing officer expressly took account of the length of the period from January 2010. That process of reasoning cannot be described as perverse. In addition, length of time cannot itself be determinative, and indeed Mr Johnson does not so suggest.[18]As the lengthy citation from the final review decision set out in paragraph 11 above shows, the reviewing officer did in fact go on to consider the position if the appellant had been an assured tenant. For the reasons I have given, I do not consider that the reviewing officer was bound to do this as it did not arise in the light of the findings. I would simply add that, if that change in status had been found to have happened, there would have been a finding as to how it happened. The train of events leading to the grant of the assured tenancy would be relevant and would be known. In all the circumstances, since it is unnecessary as I see it to do so, I do not propose to consider the position if there had been an assured tenancy.[19]Mr Johnson then submits that there was a material legal error in the statement by the reviewing officer that:
“Accommodation [which was provided under section 190 of the Housing Act 1996] is simply not capable of being settled.”
[20]As he puts it, since it is all a matter of fact and degree, there can be “no absolutes” like this. This is illustrated by Knight where the chain of causation was not broken even though the applicant had had a six month assured tenancy in the relevant period because the landlord made it clear at the time of the grant of the tenancy that it could only ever be for six months. Mr Johnson submits that a break in the chain of causation can occur only if the factor arises from outside the occupation agreement. In both Easom and Knight, the critical factor in the assessment of precariousness sprang from outside the occupation agreement itself. Here the reviewing officer principally relied on the terms of the licence.[21]I would reject this argument. None of the authorities cited to us holds that circumstances outside the tenancy agreement are the only relevant factors: quite the contrary, as Mr Johnson often reminds us, the assessment to be carried out is one of fact and degree. In my judgment, that means that all relevant facts are to be considered and no distinction can be drawn between those evident from the occupation agreement itself and those not so evident. Nor can Easom be distinguished, as Mr Johnson at one point suggested, on the basis that deportation from Australia carried with it guarantees of judicial protection. Nor in fact in this case can the terms of the licence to be taken on their own. They have to be seen in the light of the fact that the appellant was fully informed on 13 January 2010 or thereabouts that R did not owe him any housing duty.[22]Mr Johnson then makes a submission which applies even if the appellant only had a licence. He submits that, although the Protection from Eviction Act 1977, section 3 does not in general apply to licences under Part VII of the Housing Act 1996 (see the decision of this Court in Desnousse v Newham LBC at [80]), it would apply in this case from the time that the section 190(2) power had expired and so the appellant had a form of security of tenure.[23]I do not accept this argument. A similar point was raised in an earlier case and left open then, and by this Court in Desnousse at [81] on the ground that there was no basis for saying that the basis on which the appellant was being permitted to occupy the premises had changed at all. Mr Johnson submits that there was a change here because the section 190(2) power came to an end, but in my judgment that event did not result in any change in the nature of the permission to occupy. So the position here is the same as in Desnousse, and therefore that point of law does not arise for decision here.[24]Mr Johnson submits also that the court has to deal with what actually happened rather than what might have happened. This may be an oblique reference to Din, where it was held that hypothetical events were not relevant to the definition of intentional homelessness, but we are concerned with events subsequent to a person acquiring that status. Din also approved the concept of settled accommodation and made clear that the antithesis of “settled” is “precarious”, which expression at least includes the existence of a power vested in another person. Moreover, on 30 August 2012, reasonably soon after discovering the error, R exercised its power to cause the termination of the appellant’s occupation by procuring L to serve a notice to quit.[25]Mr Johnson submits that the reviewing officer was wrong to rely on questions of benefit. The question was to be objectively determined by applying the right legal test to the factual findings, and the reviewing officer’s views about any benefits were irrelevant. I do not read this part of the final review decision as a reason for the reviewing officer’s conclusion but rather a statement intended to draw attention to an undeniable consequence of the mistake which happened, in fact, substantially to benefit the appellant. Nor do I think it a fair characterisation of the final review decision that R was simply asking to be relieved of its error, which I take to mean for its own benefit. It also owes duties to other applicants for housing, which it must rigorously carry out. In many boroughs there are long waiting lists.[26]Mr Johnson raises in his written ground the question of the legal nature of the occupancy right once the section 190(2) power had been exhausted but he fairly accepted that that point did not need to be decided in the abstract. He rightly did not pursue this as a separate ground at the hearing. The real issue in this case is precariousness. Since I have rejected the argument that the appellant had some occupation right other than under the licence from L, on any basis the right was precarious and the appellant could not have any reasonable expectation of continuing in occupation for a significant period of time (compare Gilby v Westminster CC [2008] HLR 7 at [15]). Even if the section 190(2) power was exhausted, the licence was unaffected.[27]As Mr Johnson rightly accepts, the question whether the appellant’s occupation of 47 Wanstead was precarious is one of fact, to be determined objectively and without reference to the subjective motives or beliefs of either the appellant or R. Thus, it would not for instance be relevant whether the appellant realised that his landlord was L rather than R.[28]Mr Johnson also expressly did not pursue an argument that the reviewing officer should have reopened questions of intentional homelessness decided in the first review decision.[29]Miss Josephine Henderson, for R, submits that the reviewing officer took all the relevant circumstances into account and did not make any error of law. The final review decision had regard to the length of time the error had remained undiscovered, but this was only one of the factors which the reviewing officer had to consider. The accommodation could not be regarded as settled because the appellant had not produced any evidence to show that there was some change of circumstances referable to R which could have caused the occupancy to cease to be that of licence and to become that of a tenancy. She also submits that in practice a person may be temporarily accommodated by a housing authority for years while inquiries are being made. I hope she will not consider it discourteous if I do not set out her careful submissions at greater length in the light of the conclusions I have reached.

Conclusion

[30]I would dismiss this appeal. The reviewing officer considered all the relevant facts and treated the question whether accommodation was settled as one of fact and degree, as required by Din. The reviewing officer’s conclusion was that since “any given day [might] reveal the error and result in an instruction to evict, that [the appellant occupied] the accommodation precariously.” In my judgment, that decision was open to the reviewing officer on the facts as found. Lady Justice Black[31]I agree. Lady Justice King[32]I also agree.

Cited in 1 later judgment