England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BOW COUNTY COURT
(His Honour Judge Bradbury)

		The Royal Courts of Justice Strand London WC2 Tuesday 30th July, 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal by the London Borough of Waltham Forest against the judgment and order of His Honour Judge Bradbury of 8th May 2002. These proceedings stem from an application by Katherine Mohamed for housing accommodation from Waltham Forest pursuant to the Housing Act 1996. The history to that application is set out in detail by the judge. I need therefore only summarise it.
2. Mrs Mohamed was born in Jamaica on 13th August 1958. She came to live in the United Kingdom in about 1967. In 1988 she married Mr Ramsey Mohamed who had dual British and Egyptian nationalities. In May 1991 Sharif their son was born. During the marriage Mrs Mohamed and her husband lived at a property in London which was purchased for their benefit. The property was in their joint names, although her husband paid the deposit and the mortgage out of his income. The house was sold in June 1999, I believe in contemplation of Mr Mohamed moving to Egypt. After the matrimonial house had been sold, the husband went to stay with a friend in Stratford and in December 1999 went to Cairo where he bought a flat. Mrs Mohamed went to live, together with her son, at her sister's. She did not wish to go to Egypt, but her husband returned and persuaded her to go and live with him in Egypt and they all travelled to Egypt on 12th April 2000. Mrs Mohamed hoped she would persuade her husband to return with her to England, but that did not occur. She said she found it difficult to live in Egypt as neither she nor her son spoke Egyptian Arabic.
3. By the late summer of 2000 Mrs Mohamed had decided that she wanted to return to England. Her husband opposed this wish, but ultimately agreed. The result was that she and her son returned to this country on 14th December 2000. Her plan was to stay with her mother and to try and find work and then to find private rented accommodation. However, when she returned she found she could not stay with her mother and stepfather because their plans had changed. That meant she could not continue to live with them for any length of time, and on 15th December 2000 she went to Waltham Forest Homeless Persons Unit to see if they could help. That prompted the application for homelessness assistance.
4. Section 175 of the Housing Act defines a person as homeless if he has no accommodation available for his occupation in this country or elsewhere which he is entitled to occupy by virtue of an interest in it or has any express or implied licence to occupy it.
5. Section 175(3) states that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
6. Section 176 provides that accommodation shall be regarded as available for a person's occupation only if it is available for accommodation by him, together with any other person who normally resides with him as a member of his family. The judge set out the relevant parts of the Act and therefore I need not set out more than I have.
7. Mrs Mohamed was first interviewed by Waltham Forest on 8th January 2001. The interview notes are recorded in extenso by the judge. There followed, on 27th March 2001, a decision letter under section 184 of the Act. It said:

"23. This authority is satisfied that you are eligible for assistance, are in priority need for housing, have a local connection with this area. This council is not satisfied, however, that you are homeless and has discharged its duty towards you and your family. This council is satisfied that you and your husband sold your jointly owned matrimonial home with the intention of permanently residing in Egypt. Your husband used the equity from the sale of your home to purchase property in Cairo. While you say you yourself did not have the intention of living in Egypt, you did not try to secure alternative accommodation here for you and your son. This council has decided that you have accommodation elsewhere which is reasonable for you to occupy and has thus found you are not homeless. This authority has therefore discharged its duty to you."

8. Mrs Mohamed sought a review. That resulted in further enquiries and further interviews. The result was that her application was again turned down. The relevant letter was in this form:

"26. I can appreciate the difficulties you may have faced upon leaving England and travelling to a country which you were unfamiliar with, however you have a legal right to occupy the property in Cairo and there is no indication that you have been excluded from this home. You have also said that your husband's relatives now occupy the property, which is information you have been given by a friend of your husband's. There is nothing to confirm that this is the actual situation. The fact that your husband had let the property and that you believe that his relatives are now resident does not affect your legal rights. You agreed to sale of the matrimonial home and you were aware of your husband's intention to buy property and settle in Cairo. This shows that you were fully aware of the implications of this action and what it would mean in relation to your need for accommodation. In addition to this you resigned from a job that you held for 11 years approximately one month before you left the country, and you informed your son's school that you and your family were going to live abroad. This shows that it was not your intention to rent private sector accommodation in England. Had you intended to do so, the income from your employment would have assisted you in securing alternative accommodation as you stated that your husband had taken the majority of the proceeds of sale of your home to purchase the property in Cairo. You had in fact intended to settle in Cairo with your husband and your return to England was prompted by the problems that you and her son experienced.

In conclusion, based on the above information, I am upholding the decision that you have accommodation available to you elsewhere. By leaving the accommodation in Cairo and returning to England to stay to accommodation which you were aware would only be available to you temporarily, you made yourself intentionally homeless. I also consider that it would have been reasonable for your continued use and occupation had you chosen to do so. In the light of these facts this authority will not accept a duty to offer you accommodation."

9. Mrs Mohamed lodged an appeal in the Edmonton County Court. However, in the summer of 2001 Waltham Forest agreed to conduct a fresh review and the appeal was withdrawn on that basis. There followed another interview and further enquiries resulting in a long review letter. The relevant parts of that letter were set out in paragraphs 32 to 38 of the judgment. They are in this form:

"It is the decision of this authority that you have a priority need for accommodation. You are eligible for assistance and you have a local connection with this authority, but that whilst you may be homeless you are nonetheless intentionally homeless. ...

I am reasonably satisfied that you do have a right to occupy the flat in Cairo if you should choose to do so. The flat was/is the matrimonial home and you are after all still married to Mr Mohamed and as far as I am aware you have not yet filed for divorce or judicial separation. ...

Whilst there is nothing in the mere fact of the occupation of the property by your mother-in-law and sister-in-law, if indeed the property is so occupied, which would lead me to conclude that you could not secure entry to it, I am willing to proceed on the basis that by your staying away from the property for so long any persons in occupation would object to your return and would be likely to refuse you entry to it. I am therefore prepared to accept that you are homeless, however a person becomes homeless intentionally if she deliberately does something in consequence of which she ceases to occupy accommodation which is available for her occupation and which it would have been reasonable for her to continue to occupy. Obviously leaving the flat in Cairo with the intention of returning permanently to live permanently in the UK was a deliberate act, the consequence of which was that you ceased to occupy the flat in Cairo. I am satisfied that at the time you left the flat in Cairo the accommodation there was available to you and would have continued to be available to you. I am further satisfied that it would have been reasonable for you to continue to occupy that accommodation. ...

I do not consider the language problems or the cultural differences would of themselves, or when considered in conjunction with other factors, have meant that you could not continue living in Cairo. ...

Whilst I can appreciate the difficulties you must have faced upon leaving England and trying to settle in an Arab country, and I can fully understand your desire to return to the UK when your relationship with your husband became strained, I am required to assess not whether it would have been reasonable for you to leave and return to the UK, but whether it would have been reasonable for you to continue in occupation at the property in Cairo. The fact that it might have been reasonable for you to leave does not preclude a finding that it would have been reasonable for you to continue to occupy the accommodation in Cairo. Both options may validly be seen as being reasonable. ...

In determining whether it would have been reasonable for you to occupy the accommodation in Cairo I may have regard to the general circumstances prevailing in relation to housing in our own district. I have had appropriate regard to this factor in reaching my decision. There is a serious shortage of accommodation, particularly public sector accommodation, in this borough. Some factors are unfortunately obliged to remain living in unsatisfactory and overcrowded conditions in this borough. I am sure there must be couples who are obliged separately following the breakdown in their marriage or relationship but are obliged to do so under the same roof because of a lack of resources. I realise of course that there would have been additional stresses and strains involved if you and your husband were living separate lives under the same roof in Cairo, Egypt, as opposed to separate lives under the same roof in England. Having fully considered all relevant matters, I am nonetheless still minded to find that it would have been reasonable for you to continue to occupy the accommodation in Cairo."

10. The judge's conclusions are contained in paragraphs 40 and 41 of his judgment. The relevant parts are in this form:

"40. I do not see how, on the material available to them, and the exhaustive inquiries made by the respondents, that they could have in fact reached any conclusion on the facts other than the following: (1) that the appellant and her son went to Cairo to enable the appellant to continue her married life with her husband; (2) that her going to Cairo was nonetheless reluctant for her own wish had been for her husband to remain in England, but that he was determined to go to Egypt; (3) that the problems for her and her son living in Cairo on a permanent basis were very substantial problems, not least because of language difficulties; (4) that she was not given full support by her husband and that it became reasonable for her to leave; (5) that in all the circumstances it was not reasonable for her to continue to occupy the accommodation in Cairo. I would add that the evidential material before the respondents before they made the appropriate review decisions was quite clear that when this appellant returned to England she did so in good faith and in the clear belief that she would be able to live at her mother's address for the foreseeable future.

31. ... unhappily for the respondents, I have to make a finding that on that material the ultimate conclusion reached was just not tenable, but way outside the bounds of reasonableness. This is not just a case where the view reached could be held to be accepted as a reasonable one on one strand of thinking. In this case I am reluctant to use the word `perverse' because of the effort put into the case by the respondent's employees, but regrettably the reality is that after all the hard work put in by those employees, their final decision was in fact perverse, and there is no proper basis upon which this appellant could have been found to have been intentionally homeless. Even allowing for the circumstances set out in section 177(2) of the Housing Act 1996, the only proper decision that could and should have been reached is that the appellant was homeless through having no accommodation available for her occupation pursuant to the definition applicable to decisions to be made pursuant to section 175 of the Housing Act 1996. I vary the local authority decision accordingly."

11. Clearly the judge had in mind what Mrs Mohamed had said. The judge set that out in paragraphs 24 and 25 of his decision:

"I would like to point out that I do not have access to my husband's flat in Egypt. My husband and I are separated. The last contact my husband had with my son was at Christmas time, saying that he is going to Saudi Arabia to seek work. My husband is Egyptian, not me. I am a British citizen and here is where I want to live and educate my only son. ...

The property in Egypt is unsuitable because my husband and I no longer have a relationship. We have both decided to go our separate ways and now we both live separate lives. My husband is now living and working in Saudi Arabia. The property in Egypt is now occupied by my husband's elderly mother and sister. Egypt is really not an option for my son and I."

12. Miss Bretherton, who appeared on behalf of Waltham Forest, accepted that under section 204 of the Housing Act 1996 the County Court's jurisdiction is akin to that of the High Court on judicial review (see Nipa Begum v London Borough of Tower Hamlets [2000] 1 WLR 306). She also drew to our attention that an appeal from a decision of a County Court judge is a second appeal within the meaning of those words in section 55(1) of the Access to Justice Act 1999; thus CPR Part 52.13 applies and this court will not give permission to appeal unless it considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
13. There were two strands to Miss Bretherton's submissions that there was a compelling reason for this court to consider an appeal. First, she drew to our attention the judgment of Crane J upon an application by Mrs Mohamed for an interim injunction requiring her to be housed pending a decision on her appeal. It appears from a note of the judgment taken by counsel for Mrs Mohamed that Crane J was not satisfied that the decision of Waltham Forest was arguably irrational. According to that note, he concluded:

"It is impossible to say that the decision of 8 November was arguably irrational. At one stage it seemed to me that there was an argument that the Claimant thought there was accommodation in the UK when she left Cairo, but that has considerably less force than I first thought bearing in mind the very rapid application to the HPU. In my view, as far as I can judge, the decision of 8 November was not irrational and I cannot regard the prospects of success as sufficient."

14. It is not clear what the state of the evidence was before him, but Miss Bretherton told us that she was not aware of any difference between the position before Crane J and His Honour Judge Bradbury. However, that does not rule out that there was not a difference.
15. The judge did refer to the judgment of Crane J, and I believe it to be right that the judge had to make up his own mind and was not bound by the decision made by Crane J. However, Miss Bretherton pointed out that Mrs Mohamed had never sought to appeal the finding of Crane J. She submitted that the judge had failed to pay sufficient attention to it, and if he had done so he could not have reached the decision he did. She submitted that there was a point of principle to be decided namely: in is a case where the issue is whether a decision was Wednesbury unreasonable, should the County Court judge follow the observations of the judge hearing the interim application unless fresh evidence or other exceptional circumstances were available which made it not right to do so?
16. Where a judge looks at a question of whether there should be an interim application, his judgment needs to be considered, whether or not it is the judgment of a County Court judge or a High Court judge. I have no doubt the judge who had to decide the application had to decide it upon the matters and facts before him, and in that respect this case is the same as in any other case. When doing so, he must pay attention to the decision of any other judge, but in a case like this where the decision of that judge is not binding on him, then he has to make up his own mind. In my view, there is nothing of principle which would prevent the judge coming to the conclusion that he did. This does not appear to me to raise any issue of law which could be described as an important point of principle or practice or which raises another compelling reason in this case.
17. Secondly, it was submitted that the judge departed from established principles in holding that the decision of Waltham Forest was Wednesbury unreasonable. The decision was one of fact for the local authority to make and not the court. The judge had substituted his own factual findings for that of the authority and should not have done so. The decision that the accommodation in Cairo was reasonable for Mrs Mohamed to continue to occupy was one which the local authority was entitled to reach.
18. To support that submission we were referred in the skeleton argument to a number of judgments in which the facts had some similarity but in no way could be said to be identical. It was submitted that the way that the judge had substituted his view of the facts raised a compelling reason why this appeal should be heard.
19. In my view, it is quite clear that the conclusion reached by the judge was one of mixed fact and law, but I do not see that it raises a point of principle or practice of importance nor that there is any compelling reason why this court should hear the appeal. Each case depends upon the facts, and I do not see that this case should set a precedent. Of course the judge substituted his conclusion for that of Waltham Forest. That he was entitled to do if Waltham Forest acted in a Wednesbury unreasonable way. Whether or not they had is fact-dependent and does not raise an important point of principle or practice.
20. In my view, the judge did not merely consider issues of fact. In the paragraphs that I have read, namely paragraphs and 40 and 41, the judge took the view that the decision of Waltham Forest was perverse. In those circumstances, he was under a duty to quash the decision. Whether or not that was a conclusion that another judge would have arrived at is a different matter. The only chance of permission to appeal being granted is if the matter raises a compelling reason for this court to hear the matter.
21. In my view, it does not. As I said, each case turns on its facts and I can see no reason why this case should set a precedent. Furthermore, I can see nothing in the papers which would suggest that there is any particular practice throughout the County Court in deciding these matters. I accept that in cases such as this, where there is a split between husband and wife, the decision as to whether it is reasonable for one party to leave the matrimonial house is a difficult one to make. However, I believe it was open to the judge in law to come to the conclusion that he did.
22. In those circumstances, as I have said, there is no compelling reason or important point of practice or principle to be considered by this court. I therefore would refuse permission to appeal upon that basis, not upon the basis that there would not have been a real chance of success if the appeal was heard by this court.
23. LORD JUSTICE JONATHAN PARKER: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)