Emilia Munemo v The City of Wolverhampton Council [2026] EWCA Civ 329

[2026] EWCA Civ 329Case No CA-2025-000439
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT
WOLVERHAMPTON (SITTING AT WALSALL)
His Honour Judge Grimshaw
L00WV567
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 March 2026
Before
LORD JUSTICE PHILLIPSLORD JUSTICE STUART-SMITHLORD JUSTICE COBB
Between
EMILIA MUNEMORespondent- and –
Between
THE CITY OF WOLVERHAMPTON COUNCILAppellant
Jonathan Manning and Annette Cafferkey (instructed by City of Wolverhampton Legal Services) for AppellantZia Nabi and Joseph Markus (instructed by The Community Law Partnership) for RespondentHearing Hearing date: 25 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 20 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The unexceptional facts of this second appeal raise important issues about the interpretation and application of section 191 of the Housing Act 1996 [“the 1996 Act”]. Section 191 provides, so far as material:
“Becoming homeless intentionally. (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.” (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]In 2011 Ms Munemo was granted a sole secure tenancy of a flat in Birmingham [“Flat 5”]. In January 2020, while still the tenant of Flat 5, Ms Munemo applied to Wolverhampton City Council [“the Council”] for assistance as a homeless person. In filling out her application form, she made no reference to her ongoing tenancy of Flat 5 and wrongly stated that she had never been a council tenant. She signed the declaration at the end of the application form which confirmed that its contents were correct and that she understood that, if the information she had provided was incorrect, the Council could seek possession of any tenancy granted as a result of a false statement pursuant to Ground 5 of Schedule 2 to the Housing Act 1985 [“the 1985 Act”]. After a short period, she was granted an introductory tenancy of a house in Thompson Avenue [“Thompson Avenue”]. Twelve months later, that tenancy matured automatically into a fully secure tenancy by operation of section 125 of the 1996 Act.[3]A fully secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession; and the tenancy will only end when the possession order is executed: see sections 82(1), (1A) and (2) of the 1985 Act. Until that happens, the secure tenancy is neither void nor voidable. The tenant retains the right to occupy the accommodation in question until the moment that the possession order is executed and the tenant leaves the accommodation. This applies even where the tenancy has been obtained by fraud – the remedy of rescission is not available and the landlord must follow the statutory route to recovering possession: Islington LBC v Uckac [2006] EWCA Civ 340, [2006] 1 WLR 1303 at [29]-[30].[4]The statutory route provides that the court may not make an order for possession of a dwelling house let on a secure tenancy except on one or more of the grounds set out in Schedule 2: see section 84(1) of the 1985 Act. The court may not make an order for possession on the grounds set out in Part 1 of Schedule 2 unless it considers it reasonable to make the possession order, exercising a broad discretion and taking into account all relevant circumstances as they exist at the date of the hearing: see sections 84(1) and 82(2)(a) of the 1985 Act; Lewisham LBC v Akinsola (1999) 32 HLR 414, 417; Cumming v Danson [1942] 2 All ER 653, 655E-F. The significance of this requirement may be illustrated by LB Southwark v Erekin [2003] EWHC 1765 (Ch) where the applicant had submitted a fraudulent application form and, separately, was guilty of frauds that caused her to receive a sentence of 18 months in prison. It was held that the making of a possession order was not justified because of the situation of the applicant’s children who would lose the stable home in the property that they had enjoyed for five years.[5]Ground 5 of Schedule 2 is that:
“The tenant is the person or one of the persons to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by: (a) the tenant, or (b) a person acting at the tenant’s instigation.”
[6]When seeking possession on the basis of Ground 5 of Schedule 2, the landlord must prove that a false statement was made, and that it induced the grant of the tenancy. Where the statement is shown to be material to the landlord’s discharge of its housing functions, it will readily be inferred that the decision-maker was influenced by it. That is sufficient to satisfy the requirement that the landlord was “induced” for the purposes of Ground 5. The landlord does not have to go further and prove that the tenant would have been ineligible for the grant of their tenancy if the false statement had not been made. He merely has to show that the false statement had played a real and substantial part, though not by itself a decisive part, in inducing the landlord to act: see Waltham Forest LBC v Roberts [2004] EWCA Civ 940 at [41]-[43].[7]In April 2021 the Council discovered that Ms Munemo was holding two council tenancies at the same time. In June 2021 the Council served a Part II Notice of Seeking Termination of her Tenancy and Recovery of Possession of Thompson Avenue pursuant to section 83 of the 1985 Act. The notice stated that termination of the tenancy and possession of Thompson Avenue would be sought on Grounds 1 and 5 of Schedule 2. The Particulars of Ground 5 alleged that Ms Munemo had provided false or misleading information during the allocations process by failing to disclose her tenancy of Flat 5. In October 2021 the Council issued possession proceedings in respect of Thompson Avenue. The Particulars of Claim sought possession pursuant to Ground 5. It was the Council’s case that, had she disclosed her tenancy of the Flat 5, she would not have been offered the tenancy of Thompson Avenue. Ms Munemo filed a Defence but did not attend the trial of the possession claim in October 2022. An outright order for possession on the basis of Ground 5 was made by Deputy District Judge Sharp who held that it was reasonable and proportionate to grant the order. Ms Munemo applied to have the possession order set aside but her application was dismissed in January 2023. An application for a stay of execution was dismissed on 20 March 2023 and she was evicted from Thompson Avenue on 21 March 2023.

The route to the current second appeal

[8]Ms Munemo immediately applied to the Council for homelessness assistance. On 15 September 2023 the Council concluded, having carried out inquiries pursuant to section 184 of the 1996 Act, that Ms Munemo was homeless, eligible and in priority need but was intentionally homeless from Thompson Avenue. The decision letter identified her “deliberate act” as “fraudulently obtaining tenancy with [the Council] whilst maintaining tenancy in Birmingham. Your deliberate action was the effective cause of you losing your accommodation … .” Later in the decision letter it said that “I have decided that it was reasonable for you to have continued to occupy your home immediately before you took the actions that you did.”[9]On 19 October 2023 Ms Munemo’s solicitors submitted representations and repeated the request (apparently first made by Ms Munemo on 19 September 2023) that the Council review its decision.[10]On 30 October 2023 the Council issued a further decision letter, purportedly pursuant to section 184 of the 1996 Act. It also provided its review decision pursuant to section 202 in response to Ms Munemo’s 19 October 2023 request. On 20 November 2023 Ms Munemo brought a statutory appeal against that review decision pursuant to section 204 of the 1996 Act, which was compromised on 8 February 2024 on terms that the review decision was withdrawn and the Council agreed to notify a new review decision.[11]On 26 February 2024 Ms Munemo’s solicitors submitted further review submissions directed at the 15 September 2023 decision.[12]On 10 April 2024 the Council issued its first “minded to find” letter pursuant to Regulation 7(2) of the Homelessness (Review Procedure etc) Regulations 2018. Ms Munemo’s solicitors responded with further representations on 2 May 2024 submitting that the Council had still not made adequate enquiries. The Council issued a further “minded to find” letter on 20 June 2024 to which Ms Munemo’s solicitors responded with further review representations on 4 July 2024.[13]The Council issued its review decision pursuant to section 202 of the 1996 Act on 11 July 2024. The decision was stated to be in relation to its decision made on 15 September 2023 that Ms Munemo was eligible, in priority need, but intentionally homeless, and it upheld the decision. At [68]-[81] it summarised the extensive review submissions that had been made by Ms Munemo’s solicitors both before and after the Council’s first and second “minded to find” letters. Those submissions did not include a submission that she was not intentionally homeless because Thompson Avenue was not available for her occupation or that it would not have been reasonable for her to continue to occupy it. From [81]-[138] it analysed the extensive evidence that had been collected and which supported the finding that Ms Munemo’s misrepresentation of the true position was made knowingly and that the Council had sought and obtained possession of Thompson Avenue because it was induced to grant her the tenancy by her false statement. That is what had led to her eviction. The decision letter addressed intentional homelessness at [146]-[171], in the course of which it said:
“Was 87 Thompson Avenue available to Ms Munemo? 166. This property, a 3-bedroom house, was available to Ms Munemo together with anyone residing with her or who might reasonably to have been expected to live with her. Was 87 Thompson Avenue reasonable for Ms Munemo reasonable for her to continue to occupy? 167. It was reasonable for Ms Munemo to occupy and anyone who might reasonably be expected to reside with her. 168. We consider that the property was affordable as this was a social housing tenancy which was fully occupied and therefore not subject to any underoccupancy penalties. We have taken into account the Homelessness (Suitability of Accommodation) Order 1996 … .”

Was 87 Thompson Avenue reasonable for Ms Munemo reasonable for her to continue to occupy?

[14]On 30 July 2024 Ms Munemo issued a statutory appeal under section 204 of the 1996 Act. She advanced 9 grounds of appeal. On 23 August 2024, case management directions were given. On 16 October 2024, a skeleton argument incorporating Amended Grounds was settled by Counsel for Ms Munemo. The Amended Grounds largely abandoned the original 9 grounds; but Ground 1 of the Amended Grounds raised for the first time the issue that has dominated this second appeal, as follows:
“Ground 1: Misdirection in law 38. The Council has misdirected itself in law by finding that the Appellant is intentionally homeless because 87 Thompson Avenue was reasonable for her continued occupation. 39. The cause of the Appellant’s homelessness was the Council’s conclusion that she had obtained her tenancy of 87 Thompson Avenue by deception. This led to it serving a notice seeking possession, issuing possession proceedings and obtaining a possession order and warrant of possession. This then led to the Appellant being evicted and making a further homeless application. 40. Accordingly, having determined that the Appellant had deliberately provided false and inaccurate information when she made her first homeless application in January 2020 which led to her being granted the tenancy of 87 Thompson Avenue, if the Council had directed itself correctly in law, it would have been bound to conclude that 87 Thompson Avenue was not reasonable for her continued occupation because it is unreasonable to continue to occupy accommodation against the wishes of the landlord where a tenancy has been determined to have been obtained by deception.”
As was clear from the rest of the skeleton argument this new Ground was founded on the decision of this Court in Chishimba v Kensington & Chelsea RLBC [2013] EWCA Civ 786, [2013] HLR 34 to which I will return below.

The hearing and judgment below

[15]The hearing of Ms Munemo’s section 204 appeal against the Council’s review decision of 11 July 2024 upholding the original decision of 15 September 2023 that Ms Munemo was intentionally homeless was heard by HHJ Grimshaw over two days in November 2024. His reserved judgment was handed down on 31 January 2025. Paragraphs in his reserved judgment are indicated as [J*]. The appeal to the County Court being an appeal on a point of law, Ms Munemo accepted that the factual findings made by the Council were not susceptible to appeal: [J35]. The appeal focussed on whether it was reasonable for Ms Munemo to continue to occupy Thompson Avenue and thus whether she was intentionally homeless: [J36].[16]The first issue addressed by the Judge was whether Ms Munemo should be permitted to raise the new point advanced in Counsel’s skeleton argument. He held that she should, and there is no appeal from that finding. The second issue was whether, in the light of his decision on the first issue, the Judge should permit the Council to rely upon a witness statement from Mr Anthony Walker that dealt with the new point. The Judge held that, as a matter of procedural fairness the Council “should be entitled to produce limited additional evidence by way of a witness statement dealing with the Review Decision and the rationale for a particular decision reached which addresses the new point taken within the appeal.” He therefore admitted the witness statement of Mr Walker. There is no appeal from that decision.[17]The Judge stated the third issue shortly as “was [Ms Munemo] intentionally homeless from [Thompson Avenue]?” In his analysis of this issue the Judge considered himself bound by a principle which he considered to be derived from the decision of this Court in Chishimba, building on a dictum of Woolf J in R v Exeter City Council ex p Gliddon [1985] 1 All ER 493, 497e-f. He articulated the principle as: “where an applicant obtains a tenancy of a property by deception, and was not eligible to [sic] that accommodation from the start, it cannot be said that the applicant has accommodation that it was reasonable for them to continue to occupy”: [J97]. The Judge considered that both Chishimba and Gliddon were indistinguishable from the present case. Conversely, he considered that cases such as Denton v Southwark LBC [2008] HLR 161 were distinguishable from the present case because: “like in Chishimba [Ms Munemo] was not entitled to the property at all and, like Gliddon, she was required to give up possession of the Property on the basis that she had obtained it by deception. If her conduct in deceiving the [Council] is taken out of the equation, she would not have been allocated the property in the first place. [Ms Munemo] was not intentionally homeless as it was not her conduct that caused her to cease to occupy the property (it was her ineligibility as it was in Chishimba) and it would not be reasonable for her to continue to occupy the Property where she had no entitlement to it and where the [Council] sought possession of the Property on that basis.” [J106-107].[18]Having found that it would not have been reasonable for Ms Munemo to have occupied Thompson Avenue for the reasons he had given, the Judge addressed the fourth issue, namely whether the review decision was flawed as a result of either(a) failing to give appropriate consideration to the issue of whether Ms Munemo could legally be intentionally homeless and/or(b) failing to give adequate reasons within the review decision letter to address this issue. He accepted the submission made on behalf of Ms Munemo that there had been no sensible attempt to grapple with the principle set out in Chishimba and that had Mr Walker (the decision-maker on the statutory review) considered the issue, he would not have concluded that it was reasonable for the Appellant to continue to occupy Thompson Avenue: [J117]. He concluded at [J120] that the review decision provided “inadequate reasons to justify the conclusion reached” i.e. the conclusion that it was reasonable for the Appellant to continue to occupy Thompson Avenue. Accordingly, he quashed the 11 July 2024 review decision.

The Grounds of Appeal

[19]The Council appeals on two grounds: i) Ground 1 is that the Judge erred in holding that Ms Munemo was not intentionally homeless for the purposes of section 191(1) of the 1996 Act; ii) Ground 2 is that the Judge was wrong to hold that the Council’s decision was defective because of a failure to consider whether it would have been reasonable to continue to occupy the house by reference to Chishimba and Gliddon.

The principles to be applied

[20]Section 191(1) is short and clearly structured. It has also been the subject of extensive analysis in the authorities, not all of which point in the same direction. In trying to elucidate how it applies in the present circumstances, it is convenient to adopt a well-trodden series of six question, as

the Judge did at [J69]:

“i) Was there a deliberate act or omission (which does not include an act or omission in good faith by a person unaware of a material fact)? ii) Was that a deliberate act or omission by the applicant? iii) Was it as a consequence of that deliberate act or omission that the applicant ceased to occupy accommodation? iv) Is the deliberate act (or omission), and the cessation of occupation it caused, an operative cause of the present homelessness? v) Was that accommodation available for the applicant's occupation and for occupation by members of the applicant's family who normally resided with the applicant and by persons with whom the applicant might reasonably have been expected to reside? … vi) Would it have been reasonable for the applicant to have continued to occupy the accommodation?”
[21]In the present case, the answers to questions (i) to (iv) are clear. There was a deliberate act or omission by Ms Munemo in consequence of which she ceased to occupy Thompson Avenue. The deliberate act or omission was the making of the false statements and declaration identified in [2] above, which DDJ Sharp held induced the Council to grant her the tenancy of Thompson Avenue. By opening up the statutory route provided by Ground 5 and causing DDJ Sharp to make the possession order that it did, Ms Munemo’s deliberate act or omission was an operative cause of her current homelessness from Thompson Avenue when and after the possession order was executed.[22]It is now well established that there is no limitation on when the applicant’s deliberate act or omission must have taken place. The reference to deliberately doing or failing to do something may refer to past events including those that may be characterised as part of the “antecedent history” in deciding whether the applicant has been made homeless, at the time they were made homeless, by virtue of their own act: see Dyson v Kerrier [1980] 1 WLR 1205, 1214G-1215B, Watchman v Ipswich BC [2007] EWCA Civ 348, [2007] HLR 33 at [20]-[24], Haile v Waltham Forest LBC [2015] UKSC 34, [2015] AC 1471 at [22]-[30]. That said, the question whether Ms Munemo might or might not have been granted her tenancy of Thompson Avenue if she had not acted or omitted to act as she did is irrelevant to these first four questions. Lack of eligibility was not and could not be the basis for the Council’s claim for possession – the Council could only bring her secure tenancy to an end and regain possession because it was able to rely on Ground 5 and the statutory route it provided. There was in this case no other cause for her homelessness that could be regarded as a proximate cause of her homelessness or to have broken the chain of causation between her deliberate act and her homelessness.[23]The dispute in the present appeal focuses on questions (v) and (vi). They give rise to two further questions, the answers to which point the way to the resolution of this appeal. Those questions are: i) By reference to what point in time should questions (v) and (vi) be answered? And, ii) What significance should be attached to the causative deliberate act or omission when answering questions (v) and (vi)?[24]If the question were free from authority, I would conclude that the plain meaning of the terms of section 191 is that questions (v) and (vi) fall to be answered at the moment that the person ceases to occupy the accommodation in question. That is, however, not a sufficient statement of the position and there is authority on point, not always readily reconcilable, that requires a rather more complex enquiry.[25]At [9] of Haile Lord Reed JSC (with whom the majority agreed) affirmed the previous decision of the House of Lords in Din (Taj) v Wandsworth LBC [1983] 1 AC 657:
“The House of Lords decided by a majority that the questions whether the accommodation was available, and whether it would have been reasonable to continue to occupy it, were to be considered as at the time when the applicant ceased to occupy it. It followed that, if the definition was satisfied as at that time, it was irrelevant to that question to consider whether, if the applicant had not ceased to occupy the accommodation, it would have ceased to be available for his occupation by the time of the authority’s inquiry. I can say at once that, in relation to those matters, the decision appears to me to have been correct and to remain good law.”
[26]This does not, however, entail a blinkered approach that ignores anything and everything that does not occur or apply at the moment that the applicant ceases to occupy the property. In LB v Tower Hamlets LBC [2020] EWCA Civ 439, the Court of Appeal addressed the issue in the context of an applicant who asserted that continued occupation would expose her to domestic or other violence. That in turn raised the question of the applicability of section 177(1) which provides:
“(1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him… .”
[27]McCombe LJ (with whom Floyd and Coulson LJJ agreed) said:
“24. In my judgment, before looking at authority, as a matter of language of the provisions, it is clear that s.191 is directed to the time when the relevant person does or fails to do something with the result that he or she ceases to occupy accommodation and then to whether it would have been reasonable for him or her then to continue in occupation. Naturally, the section directs the reader to the time when the act is done or is not done which results in the applicant leaving the premises. One is answering the same question when applying the deeming provision in s.177. In applying this section, the applicant will be held to have been reasonable in ceasing to occupy if, when he or she does or fails to do the act, continued occupation would probably lead to domestic or other violence. 25. In Denton v Southwark LBC …, Arden LJ (as she then was) (with whom Dyson LJ (as he then was) and Mummery LJ agreed) said (at [25]) that it was “in general correct” that reasonableness of continued occupation was to be determined at a point of time before the deliberate act which led to the loss of accommodation took place (adopting the approach of Schiemann J (as he then was) in R v Hammersmith and Fulham LBC, Ex p. P (1990) 22 HLR 21 (at 29)). In making this assessment, said Arden LJ, what the authority has to do is “…to determine whether it is reasonable for the applicant to occupy premises ignoring the acts or omissions for which the applicant himself or herself is responsible”. 26. Mr Burton urged upon us the fact that Denton’s case was not dealing with the deeming provision in s.177. That is true: see Arden LJ’s judgment at [4]. However, it was very much concerned with the primary provision, namely s.191(1). S.177 only assists in the determining that primary question whether continued occupation is reasonable or not. The s.191 question of reasonableness of continued occupation was the question to be determined in Denton, as it is in the present case. In our case, s.177 provides a steer as to how to answer that question; it did not do so in Denton. The principle, however, remains the same. 27. In making the assessment on a review decision, however, high authority suggests that the reviewing officer should not limit the review by reference to circumstances existing at the date of the deliberate action or inaction alone, but by reference to all the circumstances before that date and matters thereafter up to the date of the review. That seems to me to be the thrust of the decision in Mohammed v Hammersmith and Fulham LBC [2001] UKHL 57. 28. That case concerned the question whether or not an applicant for housing had “a local connection” with the borough in question. The Court of Appeal and the House of Lords held that a period spent by the applicant in interim accommodation within an authority’s district, up to the date of the review, had to be taken into account. Lord Slynn of Hadley (with whom the other members of the Appellate Committee agreed) said at [26]: “The decision of the reviewing officer is at large both as to the facts …and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision.” “The decision of the reviewing officer is at large both as to the facts …and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision.”
[28]Reconciling the approach of the Court of Appeal in LB (and the rather different approach in Denton, which I consider further below) with the brief statement of principle in [9] of Haile is not straightforward. LB post-dates Haile, which was cited to the Court. At [30] Haile was treated as supporting the approach adopted by the Court of Appeal in LB on the basis that:
“The Supreme Court held that in assessing whether a deliberate act had caused homelessness, there had to be a continuing causal connection between the act and the homelessness existing at the date of the inquiry; the authority had to consider that question by reference to facts that had occurred after the deliberate act in question.”
[29]In R v LB Hammersmith and Fulham, ex p. P and others (1989) 22 HLR 21 the applicants had occupied accommodation in Northern Ireland. The case proceeded on the basis that the applicants had been guilty of serious criminal and anti-social conduct as a result of which behaviour the IRA threatened that unless the applicants left Northern Ireland within 72 hours, they would all be killed. As a result of this threat the applicants left Northern Ireland. They went to Hammersmith and asked to be housed there. The respondent concluded that they were homeless intentionally because(a) they had ceased to occupy their homes in consequence of their own criminal and anti-social behaviour and(b) they had deliberately failed to turn to the RUC and/or the NIHE which constituted a deliberate act that rendered them homeless intentionally. The applicants brought judicial review proceedings challenging that conclusion.[30]One of the arguments advanced on behalf of the applicants was that there was no material upon which the authority could conclude that the applicants could reasonably have remained in their previous accommodation, it being undisputed that they were under a serious and credible life threat. At page 29 Schiemann J said: “At this stage one must be careful to identify the time in respect of which section 60(1)* reasonableness is to be tested. There is the time when a person does or fails to do something in consequence of which he ceases to occupy the accommodation, and then there is the time when a person actually ceases to occupy the accommodation. The former may be contemporaneous with the latter but need not be. If I am right in the earlier part of this judgment then the present case is one where in the case of all the families … the acts or omissions in consequence of which they ceased to occupy the accommodation preceded by quite a substantial period of time their actual leaving of that accommodation. It seems to me that the phrase "which it would have been reasonable for him to continue to occupy" refers to the earlier time (there being implied the additional phrase "had he not failed to do something in consequence of which he ceased to occupy the accommodation"). Insofar as Mr. Arden sought to argue that the phrase "which it would have been reasonable for him to continue to occupy" referred to the later time (there being implied the phrase "had he not ceased to occupy") I reject that argument. Mr. Arden accepts that if my construction of the subsection be correct, the authority were entitled to conclude that the applicants could reasonably have remained in their previous accommodation.” *Section 60(1) was the statutory predecessor to section 191(1)[31]It will immediately be noted that this passage is not easily reconcilable with the decision of the House of Lords in Din (as later reaffirmed by the Supreme Court in Haile) that the question whether it would have been reasonable for the applicant to continue to occupy the property should be answered as at the time that the applicant ceased to occupy it. However, what is common to both Haile and LB is that the person carrying out the assessment is not limited to the situation prevailing at one single point in time: rather, it is open to them to have regard to relevant information that is not specific to that moment.[32]In Denton v Southwark BC [2007] EWCA Civ 623, [2008] HLR 11, the appellant lived with his mother. Their relationship deteriorated because of his anti-social behaviour and his mother asked him to leave. After a period living with his sister, that relationship also broke down and he applied to the authority as homeless. The authority decided that he was intentionally homeless because he had been evicted from his mother’s house in consequence of his bad behaviour. After a review upheld that decision on the basis of his unreasonable behaviour when in his mother’s home, the appellant appealed to the County Court, which allowed the appeal. On the authority’s appeal to the Court of Appeal, its appeal was allowed.[33]As part of her reasoning, Arden LJ (with whom Dyson and Mummery LJJ agreed) addressed the proposition that, in determining whether it is reasonable for a person to have continued to occupy his previous home, the court must disregard the deliberate conduct or course of conduct that led him to leave that home. After citing the passage from ex p. P that I have set out above, Arden LJ said at [25]:
“So Schiemann J. adopted a temporal approach and held that reasonableness was to be determined by asking whether it would have been reasonable for the applicant to continue to occupy the accommodation at a point in time before the deliberate acts which led to the loss of the accommodation took place. It was common ground that this was the approach to be adopted in this case, and in my judgment the approach of Schiemann J. is in general correct. Mr Pettit carries the temporal approach to its logical conclusion. He submits that Southwark should have made investigations into the position as it stood between Mr Denton and Mrs Salmon before any bad behaviour started. It should then have made an assessment as to whether the situation was one which Mr Denton had outgrown and whether he ought to be living independently of his mother. In my judgment what the local housing authority has to do is to determine whether it is reasonable for the applicant to continue to occupy premises ignoring the acts or omissions for which the applicant himself or herself is responsible. If that is done in the present case, the misbehaviour has to be left out of the reckoning. …”
[34]The following points arise from this passage. First, it was common ground in Denton that the approach adopted by Schiemann J in ex p. P was the correct approach to be adopted. Second, Arden LJ’s endorsement of the approach taken by Schiemann J was limited to saying that the approach was “in general” correct. Third, she rejected the submission that the authority should have investigated the position as it stood between the applicant and his mother before any bad behaviour had started (which would have had the effect of excluding consideration of the bad behaviour and its impact). But, fourth, she held that the correct approach was to determine whether it was reasonable for the son to continue occupying his mother’s home ignoring the acts or omissions for which the applicant himself was responsible. This was expressed as a general principle.[35]It is not difficult to identify reasons why such a principle should be adopted. Although “intentional homelessness” is a statutory concept which does not necessarily coincide with normal non-statutory understanding, section 191 carries the idea that a person’s deliberate acts or omissions may have the consequence that they cease to occupy their accommodation (and thereby become homeless) despite the fact that the accommodation is and remains available for their occupation and would be reasonable for them to continue to occupy. How can this be if the behaviour which has caused them to leave the accommodation is brought into account in assessing whether the accommodation remains available and would be reasonable for them to occupy? Bringing the deliberate acts back in would have the perverse effect that the worse the behaviour, the less likely would be the conclusion that the applicant is intentionally homeless. Adapting the facts of Denton may illustrate the point. At one end of the spectrum the son’s behaviour may have been anti-social but only marginally so, in which case it may have caused him to cease occupation of his mother’s home but there would be no major impediment to his going back into occupation and it would be reasonable for him to do so. In such circumstances, bringing his behaviour into account may allow the conclusion that he is intentionally homeless. Conversely, if his behaviour included threatening or dangerous behaviour and that behaviour were brought into account when considering whether it was reasonable for him to return to the accommodation, the conclusion would surely be that it was not, and he would not be intentionally homeless.[36]I would therefore rephrase the Denton approach, bearing in mind that the assessment is to be made as at the time that the applicant ceases to occupy the accommodation in question but without the application of moment-specific blinkers. When considering the question whether the accommodation that the applicant has ceased to occupy in consequence of the applicant’s deliberate act or omission, is available for his occupation and/or whether it would be reasonable for him to continue to occupy the accommodation, the applicant may not rely upon that deliberate act or omission to support a conclusion that the accommodation is not available and/or that it would not be reasonable for him to occupy it.

Gliddon and Chishimba

[37]In Gliddon the applicants obtained a short-term tenancy of a flat by representing to the landlord that they were both employed. In fact, they were unemployed and unable to pay the rent. On learning of the deception, the landlord sought the surrender of the lease. The applicants surrendered their tenancy and received instead a licence for an extremely limited period, which was in due course terminated by the landlord. The landlord subsequently obtained an order for possession of the flat in uncontested proceedings. The applicants applied for accommodation claiming to have a priority need because the female applicant was pregnant. The authority decided that the applicants had become homeless intentionally (within the equivalent provisions to section 191 that were then in force) because they had voluntarily surrendered their lease despite being advised to take legal advice before doing so, and by failing to contest the proceedings for possession. The applicants applied for judicial review of the authority’s decision that they had become homeless intentionally. Giving judgment ex tempore Woolf J granted certiorari quashing the authority’s decision. In doing so he said: “What I regard as the crucial finding of the Council is that Mr King was deceived and that when Mr King discovered the deception the applicants agreed to surrender the security of their lease for a licence. I have no doubt that Counsel for the Council is right in saying that on the reasoning of the Council the homelessness of the applicants was caused, at least in part, by the deception which they practised on Mr King. However, it does not follow that as they were rendered homeless by that conduct on their part it would have been reasonable for them to continue to occupy the accommodation. For the purposes of section 17 (1) an applicant is only homeless intentionally if he not only does something or fails to do something which is the cause of his ceasing to occupy the accommodation but, in addition, the accommodation is accommodation which it is reasonable for that person to continue to occupy. Where you have a situation where a person has only obtained accommodation, on the findings of the Council, by deception, and the landlord on discovering that deception requires the person concerned to surrender their lease, the consequence must be that that person has no possible justification for refusing to do so. In my view, it is almost inevitable that if this is required by the landlord, it would be unreasonable for him to continue to occupy the accommodation against the wishes of the landlord. He would have no defence in law to a claim to possession by the landlord. It would be adding to the harm which has already been done to the landlord to require the landlord to bring proceedings to obtain possession in those circumstances, and … the needs of the Council cannot in the ordinary way make it reasonable for the applicants to continue to occupy the accommodation. In this case, the landlord did not demand immediate possession. He was content that there should be a temporary licence. However, if the landlord could require possession, he must also be entitled to require a licence; and if it would be unreasonable for the tenant to continue to occupy the premises if the landlord required possession, so must it, in my view, in the normal way be unreasonable for the tenant to continue to insist on retaining the lease if the landlord is prepared to grant an indulgence and accept a licence. The situation here was therefore one where, in my view, there was almost an overwhelming if not irresistible case that the applicants could not reasonably continue to occupy Flat la Grosvenor Place. (Emphasis added)[38]In Chishimba the central facts were that(a) as a Namibian national who was subject to immigration control, the appellant was ineligible for housing assistance, and(b) in making her application for housing assistance the appellant used a counterfeit passport to deceive the authority into believing that she was eligible when she was not. In the light of her application, the authority let accommodation to her on a non-secure tenancy. When alerted by the UK Border Agency to the fact that the appellant had no right to remain in the UK, the authority wrote to her informing her that, as she was not eligible for assistance, the authority no longer owed her a duty under Pt VII of the 1996 Act. The authority served notice to quit and commenced possession proceedings. When the appellant re-applied to the authority for assistance, it decided that the appellant was intentionally homeless. On review, that decision was upheld: the reviewing officer decided that the deliberate act that had led to the appellant becoming homeless was her use of the counterfeit passport to obtain assistance from the authority and that it would have been reasonable for her to continue to occupy the flat. The appellant applied first to the county court and thence to the Court of Appeal, arguing that (i) the cause of her homelessness was not her use of the counterfeit passport but her initial ineligibility for assistance; and (ii) given that she never had a lawful right to occupy the flat, it had not been reasonable for her to continue to occupy it.[39]The Court of Appeal held that(i) although the immediate cause of the appellant’s homelessness was the authority’s discovery that she had obtained her tenancy by deception, the effective cause of her homelessness was that she had been ineligible for assistance, and(ii) the authority having terminated her tenancy, it could not have been reasonable for her to continue to occupy accommodation to which she never had any lawful right.[40]At [14]-[15] Lewison LJ (with whom Elias and Richards LJJ agreed) referred to cases where the accommodation in question was one which the applicant was lawfully entitled to occupy as “freeholder, leaseholder or secure tenant before entering into the transaction which eventually led to the repossession” and held that the reviewing officer in Chishimba was wrong to extrapolate from those cases a general principle that acts committed before acquiring the accommodation could be equated with acts carried out after the accommodation had been lawfully occupied and enjoyed.[41]At [15]-[16] Lewison LJ continued:
“15 In our case Ms Chishimba never had the lawful right to occupy the flat. I agree, therefore, with Mr Luba that these cases do not support the Council’s decision in this case. In essence I accept the argument for Ms Chishimba. The immediate and proximate cause of the loss of her home was the Council’s discovery of her fraud and, if one travels back in time from that immediate cause, then one arrives at the conclusion that the effective cause of her no longer being able to occupy 34B Chipperfield House was that she was not entitled to it in the first place. 16 A similar analysis underlies Ms Chishimba’s argument that it was not reasonable for her to continue to occupy 34B Chipperfield House. Because of her initial deception of the Council she should not have been granted the tenancy in the first place. When the Council discovered the deception they terminated the tenancy. How then can it be plausibly said that it would have been reasonable for her to continue to occupy a flat to which she never had any lawful right? The reviewing officer did not to my mind address this question at all. She simply asserted that it would have been reasonable for Ms Chishimba to have continued to occupy the flat.”
[42]Lewison LJ then distinguished Denton on the basis that, in that case, had the applicant not indulged in unacceptable behaviour, he would have continued to occupy the accommodation. “It would have been reasonable for him not to have behave unacceptably. Therefore it would have been reasonable for him to have continued to occupy the accommodation. But how can that reason be transposed to our case? It would have been reasonable for Ms Chishimba not to have used a counterfeit passport to deceive the Council, but, if she had not used the counterfeit passport she would not have been granted a tenancy. On the assumption that she had not been deceitful, the flat would not be accommodation that it would be reasonable for her to continue to occupy because she would not have occupied it at all.”[43]Lewison LJ then endorsed the approach of Woolf J in Gliddon, citing the passage that I have highlighted above.

Ground 1- discussion and resolution

[44]Chishimba is a decision that rests on two determinative features. First the applicant never had any entitlement to homelessness assistance. That (and not her fraudulent use of the counterfeit passport) was the effective cause of her no longer being able to occupy her accommodation: see [15], cited at [41] above. Second, she only ever acquired a non-secure tenancy, which the landlord was entitled to terminate even if a possession order was required before she could be evicted. The combination of this lack of eligibility and security is what justified the rhetorical question “How then can it be plausibly said that it would have been reasonable for her to continue to occupy a flat to which she never had any lawful right?”. Applying Denton, neither the premise nor the answer was affected if her use of the counterfeit passport were left out of account.[45]The facts of the present case are distinguishable from those in Chishimba in two respects, each of which is in my judgment fundamental. First, the relevant deliberate act was the false statement that satisfied Ground 5 and led DDJ Sharp to conclude that it was reasonable and proportionate to make a possession order. Second, although it was necessary for the Council in seeking possession to prove inducement (as explained above), the Council did not assume the burden of proving that Ms Munemo was not entitled to homelessness assistance. In possession proceedings based on Ground 5, that was simply not in issue. At all material times until the possession order was executed, Ms Munemo had the benefit of her secure tenancy, one feature of which was that the Court could not make a possession order against her unless it was reasonable and proportionate to do so. The sweeping assertion made in Gliddon that, on the facts of that case, there was “no possible justification” for continuing to occupy the accommodation against the wishes of the landlord is inapposite when applied to a person having the benefit of a secure tenancy. Similarly, the rhetorical question in [16] of Chishimba was predicated on the Council having terminated her tenancy. As I have explained, that is not applicable in the present case.[46]Applying Denton to the facts of the present case, if one ignores the misrepresentation that was the relevant deliberate act (which the applicant may not rely on (as per [36] above)), there was no basis for an assertion that the property was not available or that it would not have been reasonable for Ms Munemo to continue to occupy it. All of the evidence provided to the Council initially and available to the reviewing officer and the Courts has been to the effect that Thompson Avenue was satisfactory for Ms Munemo to occupy and that it would have been reasonable for her to continue to occupy had she not, in consequence of her deliberate act, had to cease occupation. In her Defence in the possession proceedings Ms Munemo stated that Thompson Avenue was her home which she and her children had come to love and appreciate; and elsewhere she described it as her family home, without reservation.[47]I do not consider that there is any justification for extending the principles adopted in Chishimba to the facts of the present appeal. It would have the consequence that any person who induces the grant of a tenancy of suitable and satisfactory accommodation by deception will not be intentionally homeless if that deception subsequently causes them to cease to occupy their accommodation. Such an outcome would, in my judgment emasculate section 191 and prevent it from achieving its statutory purpose, which I take to include discouraging the obtaining of accommodation by deception.[48]I would therefore allow the appeal on Ground 1.

Ground 2 – discussion and resolution

[49]At [14] above I have set out the terms in which Ms Munemo’s new ground was framed. It involved the assertion that, if the Council had directed itself correctly in law (which, on her case, would have involved accepting that Chishimba applied in the present case) the Council would have been “bound to conclude” that Thompson Avenue “was not reasonable for her continued occupation because it is unreasonable to continue to occupy accommodation against the wishes of the landlord where a tenancy has been determined to have been obtained by deception.”[50]Mr Walker’s statement dealt with the new point concisely but clearly. He first described Thompson Avenue, the basis on which it was let, and Ms Munemo’s attitude to it as her (satisfactory) family home. He then addressed the nature of the inaccurate information put forward by Ms Munemo and his belief that it justified bringing possession proceedings pursuant to Ground 5. He then addressed the case that was being advanced, namely that Ms Munemo would never have been entitled to occupy the property and challenged that assertion. He explained that it might have been the case that, if full disclosure had been made of her previous history of domestic violence and other traumatic experiences, the Homelessness Services Officer would have accepted the main housing duty. Finally, he gave his opinion that if there had been no misrepresentation by Ms Munemo, there would have been no basis on which to question whether it was reasonable for her to continue to occupy.[51]To my mind, Mr Walker’s statement was clear in addressing the case being advanced by Ms Munemo by her new ground of appeal. He is not to be criticised for not addressing the purely legal arguments that were being advanced on Ms Munemo’s behalf: that was the province of lawyers’ submissions, not evidence from witnesses - provided, of course, that the reviewing officer can (as here) be seen not to have made a legal error in his approach.[52]Furthermore, at a time when the Chishimba argument had not been advanced, the decision letter sufficiently explained the Council’s reasons why Ms Munemo was intentionally homeless: see [13] above.[53]I would therefore allow the appeal on Ground 2.

Disposition

[54]If my Lords agree that the appeal should be allowed, the effect will be to restore the Council’s review decision of 11 July 2024.[55]I agree.[56]I also agree.