England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
HIS HONOUR JUDGE ROBERTS
4B054860

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th March 2006

Lord Justice May:

Facts

1. On 13^th February 2000, Hemlata Deugi, the respondent, who is an Indian national, came to the United Kingdom with her two children, Sunaina, born on 16^th August 1981, and Vishal, born on 22^nd October 1986. They lived with her husband, the childrens' father, Mr Deugi in Morecambe. He held a Portuguese passport.
2. In about May 2000, Mrs Deugi and her children left the home in Morecambe. In June 2000, she applied to Tower Hamlets London Borough Council, the appellant, for housing assistance on the basis that she was homeless. Tower Hamlets initially housed them under the Housing Act 1996. In September 2000, Tower Hamlets decided to house them and provide them with subsistence under the National Assistance Act 1948 and the Children Act 1989. On 27^th October 2000, Mr and Mrs Deugi divorced.
3. By December 2003, Tower Hamlets were looking to withdraw the support they were providing. On 12^th December 2003, solicitors acting for Mrs Deugi requested assistance for her under the Housing Act 1996. There was a question about her eligibility for assistance, because she might have been ineligible under section 185(1) of the 1996 Act as a "person who is subject to immigration control". But she then claimed, correctly as Tower Hamlets now acknowledge, that she was eligible, because she was the primary carer of a dependent child – her son Vishal – who was in full time education. This was the consequential effect of the decision of the European Court of Justice in Baumbast v SSHD [2003] INLR 1, which upheld the right of children of an EU national working in a host member state to live there in order to attend general education courses. Mrs Deugi, as the primary carer of Vishal, had a derived right of residence to enable Vishal to exercise his right, which existed even though his parents were divorced, and even if his father, an EEA national, no longer worked in the United Kingdom. This "Baumbast exception" now appears in the Immigration (EEA) Regulations 2000. In December 2003, Vishal was just 17 and in full time education.
4. Tower Hamlets did not, however, acknowledge that Mrs Deugi was eligible for assistance when she applied. They rejected her application in a decision letter taken to be of 20^th January 2004, saying that she was a person subject to immigration control. On 5^th February 2004, Mrs Deugi sought a review of the decision. On 20^th February 2004, Tower Hamlets upheld the original decision. This review decision was quashed on 16^th March 2004 upon appeal to the Bow County Court at a hearing before HH Judge Hornby, which Tower Hamlets did not attend, on the ground that its reasoning was flawed.
5. Tower Hamlets then took an apparently excessive time to reconsider Mrs Deugi's request for a review of the original decision. Mrs Deugi had to threaten judicial review proceedings, but agreed to a number of extensions of time until 8^th September 2004. During this period, the Home Office wrote to Tower Hamlets on 30^th June 2004, explaining their decision that Vishal benefited from the Baumbast exception and that Mrs Deugi could be considered as his primary carer.
6. On 29^th September 2004, Mrs Deugi, not being prepared to extend Tower Hamlets' time to complete their review beyond 8^th September 2004, appealed the January 2004 decision to the county court. On 27^th October 2004, five days after Vishal's 18^th birthday, Tower Hamlets conceded that their January 2004 decision was wrong, accepting that Mrs Deugi was eligible for housing assistance then. They said that a fresh decision would need to be taken in the light of updated information. It was possible that she was no longer eligible. They suggested that Mrs Deugi should withdraw her appeal, the Council agreeing to pay her costs. Mrs Deugi did not agree to withdraw her appeal. On 14^th January 2005, Tower Hamlets wrote saying that the January 2004 decision "may be unsafe", and withdrawing (or purporting to withdraw) that decision.
7. On 17^th March 2005, Tower Hamlets wrote giving what it maintains was a fresh decision upon Mrs Deugi's application for assistance. The decision was that she was a person subject to immigration control who no longer benefited from the Baumbast exception, because she was no longer the primary carer of a dependent child under 19 who was attending full time education. Vishal, although still under 19, was not in education, having left school at or just before his 18^th birthday; and Mrs Deugi, it was said, no longer received income support for him. Mrs Deugi requested a review of this decision, but continued her appeal against the January 2004 decision.
8. The appeal was heard by HH Judge Roberts in the Bow County Court on 28^th April 2005. In a judgment of 19^th May 2005, the judge allowed Mrs Deugi's appeal. He varied the decision of 20^th January 2004 into a finding that as at that date Tower Hamlets owed Mrs Deugi the duty under section 193(2) of the 1996 Act. Tower Hamlets appeal against this decision, with permission of Mummery LJ.

The Housing Act 1996

9. Part VII of the 1996 Act is concerned with homelessness. Sections 183 to 204A provide for homeless people to apply to a local housing authority for assistance; delineate the duties of local housing authorities in those circumstances; and provide for reviews of and appeals against decisions of local housing authorities. A full account of the structure of these sections is to be found in the judgment of Buxton LJ in Crawley B.C. v B (2000) 32 HLR 636 at 639 to 641. A shorter summary will suffice for present purposes. There has been a number of amendments to the statute since the decision in Crawley by the Homelessness Act 2002. One such amendment, to section 193, is confusingly mistranscribed in volume 21 of the 4^th Edition of Halsbury's Statutes 2005 Re-issue.
10. The core section of the 1996 Act for the purposes of this appeal is section 193. It applies, by section 193(1),

"… where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has priority need, and are not satisfied that he became homeless intentionally".

There are thus four considerations: homelessness, eligibility for assistance, priority need and intentional homelessness. For each of these, it is the local housing authority that has to be satisfied or not satisfied. As Buxton LJ explained in Crawley, the statutory structure places the primary decisions on the local housing authority, and the nature of any challenge to those decisions on an appeal has to be a public law challenge as in judicial review.

11. A person is homeless in the circumstances set out in section 175. A person is eligible for assistance unless they are excluded under sections 185 or 186 – see section 183(2). The Baumbast exception arises under section 185. Persons are in priority need as defined in section 189. These include a person with whom dependent children reside or may reasonably be expected to reside (section 189(1)(b)). Almost by definition, a person who is, as a carer, within the Baumbast exception will be in priority need under section 189(1)(b). Mr Underwood QC, for Tower Hamlets, does not argue otherwise. By section 191(1), a person becomes intentionally homeless 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. By section 177, it is not reasonable for a person to continue to occupy accommodation, if it is probable that this would lead to domestic or other violence against him or her. Mrs Deugi's case in short is that she left the matrimonial premises in Morecambe because of domestic violence, and that she was not in January 2004 (or since) intentionally homeless.
12. By section 193(2), the local housing authority is under a duty to secure that accommodation is available for occupation for an applicant to whom section 193 applies. By section 193(3) that duty subsists "until it ceases by virtue of this section". One of the circumstances in which, by section 193(6)(a), the local housing authority "shall cease to be subject to the duty" is if the applicant ceases to be eligible for assistance. Although Tower Hamlets now accept that Mrs Deugi was eligible for assistance in January 2004, they say that she had ceased to be eligible for assistance by the time of their letter of 17^th March 2005, because the Baumbast exception no longer applied to her. This was, I think, accepted on behalf of Mrs Deugi before the judge, although Mr Holbrook, for Mrs Deugi, reserved before this court the question whether she might not now be eligible for assistance for other reasons.
13. Section 193 has other circumstances in which the local housing authority shall cease to be under the section 193(2) duty – see sub-sections (6)(b) – (d), (7) and (7B). These do not include if the applicant ceases to be in priority need.
14. Section 202 gives an applicant the right to request a review by the local housing authority of a variety of its decisions. These include a decision as to eligibility for assistance and a decision as to what duty is owed under sections which include section 193. Section 203 requires an authority which decides on review to confirm the original decision to notify the applicant of the reasons for that decision; and to inform the applicant of his right to appeal to the county court on a point of law. Section 204(1) provides that an applicant who has requested a review, but who has not been notified of the decision on the review within the prescribed time, may appeal to the county court on any point of law arising from the original decision. So it was that Mrs Deugi, not having been notified of a review decision by 8^th September 2004, appealed the January 2004 decision to the county court. Section 204(3) empowers the court on appeal to make such order confirming, quashing or varying the decision as it thinks fit.

The judge's decision

15. Mrs Deugi's case before the judge was that, as at the date of the decision under appeal, she was both eligible for housing assistance and in priority need. In her notice of appeal to the county court, she asked the court to vary Tower Hamlets' decision so that it provided that she was eligible for housing assistance. The judge in his judgment said that she invited the court to vary the decision so as to provide that she was both eligible and in priority need. There was never any issue but that she was homeless, but neither of these formulations address the fourth element necessary for section 193 to apply, that is that she was not intentionally homeless.
16. Tower Hamlets had conceded that in January 2004 she was eligible for assistance, and, as I have said, there was no real dispute but that she was then in priority need. Tower Hamlets argued before the judge that the appeal was futile. It had become entirely academic what the historic position was in January 2004, because things had changed. Tower Hamlets were no longer satisfied that Mrs Deugi was eligible for assistance. They had so stated in their decision letter of 17^th March 2005. They were no longer under a section 193(2) duty by virtue of section 193(3) and (6)(a). Mrs Deugi had in fact been housed since January 2004.
17. Mrs Deugi's case was that the appeal was not academic. Tower Hamlets had had a duty under section 184, having made necessary enquiries, to satisfy themselves whether she was eligible for assistance, and, if so, what if any consequential duty was owed to her. They had reached the wrong decision about eligibility, so that Mrs Deugi ought to have had a decision about consequential duty. This would have included a decision that she was in priority need. Mr Holbrook's submission, as recorded by the judge, was that the finding that an applicant is in priority need is a once for all finding. I understood this to mean that it is a finding which may be of enduring benefit to Mrs Deugi, even if for the moment she were not eligible for assistance. The submission might, I thought, more accurately be expressed as that, if the local housing authority is satisfied that all four elements of section 193(1) are fulfilled, so that they owe the applicant a section 193(2) duty, the duty does not cease only because the applicant ceases to be in priority need. This is because the applicant ceasing to be in priority need is not one of the circumstances in which the local housing authority ceases to be subject to the duty under any of the subsequent sub-sections of section 193.
18. The judge was persuaded that the appeal was not entirely academic. In short, he held that there might be an enduring benefit to Mrs Deugi for the court to find that she was in priority need in January 2004 and to vary the decision under appeal to that effect.
19. Mr Holbrook maintained before this court the position that the appeal to the judge was not academic. He referred us to R. v Brent LBC ex parte Sadiq (2000) 33 HLR 525. Mr Underwood was not instructed to argue that the appeal was academic. I am distinctly sceptical whether it really can be so that, on a proper construction of this part of the 1996 Act, a decision that a local housing authority owes an applicant a duty under section 193(2) carries with it a finding that he is in priority need, and that this endures even though there may come a time when he is plainly not in priority need. No doubt a subsisting duty under section 193(2) does not cease only because the priority need ceases, for that is not within section 193(6). But I do not presently consider that, if the duty ceases for reasons which are within one of the relevant sub-sections of section 193, an applicant could, on a fresh application for assistance, successfully contend that they were then in priority need only because it had been found in different circumstances in the past that they were. It is not necessary to decide this point because neither party to this appeal submits that the appeal is academic. I record that, upon seeing a draft of this judgment, Mr Holbrook explained that his submission was limited to the point in the last two sentences of paragraph 17 above.
20. The judge considered that there were three issues: first, whether Tower Hamlets were entitled to withdraw their January 2004 decision; second, if not, whether they could replace the earlier decision with the decision of 17^th March 2005; and third, if Tower Hamlets could neither withdraw nor replace the January 2004 decision, whether the court could and should vary the January 2004 decision as requested by Mrs Deugi. It seems to have been assumed that, if Tower Hamlets were entitled to withdraw the January 2004 decision, there would be no decision for the appeal to bite on; and, if they could replace the earlier decision with the decision of March 2005, the court could do no more than quash the January 2004 decision. This would not help Mrs Deugi.
21. On the issue of withdrawal, Tower Hamlets argued that Crawley was authority to the effect that they were entitled to withdraw their July 2004 decision and replace it with a fresh decision. It was held in Crawley that a local housing authority can revisit a decision even during the appeal process and conduct a further non-statutory review. This could result in an acknowledgment that the previous adverse decision was based on wrong grounds. It could be replaced with a fresh adverse decision on the new and different grounds. Mr Holbrook, on the other hand, submitted that the statute enacted a scheme from which the local housing authority could not unilaterally depart. There was no statutory power enabling them to withdraw a decision. In the alternative, Mr Holbrook submitted that a right or power to withdraw did not extend beyond a time when the applicant invoked the next stage of the process of review and appeal.
22. The judge said that the authorities clearly show that a local housing authority cannot revoke a lawful decision. But they can revisit an adverse decision and make a fresh adverse decision on different grounds, if they are satisfied that the original decision cannot be supported. The judge then said:

"In my judgment there is nothing in the Statute and nothing in the authorities to which I have been referred which permit the Local Authority as it were to cancel an erroneous decision and proceed [as if] one had never been reached. If I am right about that, then the withdrawal letter is of no legal effect, so that brings me to the second issue as to the status of the decision of 17^th March 2005 and whether the Local Authority are entitled to put this forward as a replacement decision affirming the earlier adverse decision, but in fact on different grounds based on the facts as they obtained at a later date. If they are entitled to do so and this court's power is limited to quashing the decision of 20^th January 2004, then the applicants only remedy would be by way of review and subject thereto appeal against the decision of 17^th March 2005 and the issue of priority need would have to be considered on the facts as they were at the time of the review and if there is one the appeal against the review decision."

23. The judge, however, decided, with reference to the judgment of Chadwick LJ in Crawley, that, if Mrs Deugi might be prejudiced by Tower Hamlets' failure to make a correct decision in January 2004 or on review, she ought not to be deprived by subsequent events of some benefit to which she would have been entitled, if the original decision had been taken in accordance with the law. The statute gives the court power to vary the decision under appeal. The court should do so, in addition to quashing the admittedly erroneous decision, where, if they had not made the error which they did, the local housing authority could only rationally have reached one conclusion. The judge rejected a submission that the evidence was insufficient for him to make a finding of priority need. There was ample evidence that in January 2004 Vishal was in full time education and living with his mother. As to intentional homelessness, at no time before the hearing had there been any suggestion from Tower Hamlets that this was a matter they would wish to consider. Mrs Deugi and her husband separated against a background of domestic violence. The judge could not accept that Tower Hamlets believed that there was any realistic prospect of additional enquiries establishing an argument that Mrs Deugi was intentionally homeless. The judge accordingly varied the decision of 20^th January 2004 into a finding that, as at that date, Mrs Deugi was owed a duty under section 193(2) of the 1996 Act.

The appeal

24. The grounds of appeal are that the judge was wrong to hold that Tower Hamlets could not withdraw their January 2004 decision; and that he was wrong to vary that decision in the terms in which he did. As I shall show, the scope of the contentious debate diminished during the hearing.
25. It is first necessary to look at this court's decision in Crawley more closely. An applicant's three children had been taken into care and placed with foster parents. In July 1998, a court ordered that steps should be taken to reunite the children with the applicant and her partner. But at about this time, she was about to be evicted from Housing Association accommodation because of rent arrears. She applied to Crawley Borough Council for assistance as a homeless person. In August 1998, Crawley decided that she was homeless and eligible for assistance; but that she was not in priority need, because she did not have dependent children living with her. Crawley subsequently confirmed this decision on review. In October 1998, she appealed to the county court on the ground that, in the light of the July 1998 court order, no reasonable authority could have concluded that she was not a person with whom the children might reasonably be expected to live. In January 1999, Crawley, upon a non-statutory review, decided that she was in priority need, but that she was intentionally homeless. The county court judge held that Crawley had to be treated as having decided in August 1998 that the appellant was not intentionally homeless. Accordingly, Crawley were required to secure accommodation for the applicant under section 193(2) of the 1996 Act.
26. Crawley appealed successfully to this court. It was held that the judge had no power to make the order that he did. At the date of the appeal, Crawley had not satisfied themselves that the applicant was not intentionally homeless, so that not all the conditions required by section 193(1) had been fulfilled. It was not irrational for Crawley to decide not to consider whether the applicant was intentionally homeless. It was open to them to conserve resources by not embarking on an inquiry that would be redundant. An appeal under section 204 of the 1996 Act challenging an adverse decision under section 193 was a public law inquiry in the nature of judicial review. It was the local housing authority, not the court, that had to be satisfied of the four elements in section 193(1). The application of public law jurisprudence in homelessness cases did not necessarily lead to the conclusion that a decision once taken could not be revisited by the authority.
27. So far as is relevant for public purposes, Buxton LJ, with whom Sir Richard Scott V.-C. and Chadwick LJ agreed, held that, having reached a conclusion adverse to the applicant on priority need, the authority could properly determine its duty without considering intentionality at all. It would be very odd if the making of a decision had to be held necessarily to entail a conclusion on intentionality, even if that fact had not been considered. Second, Buxton LJ held that, where on a subsequent non-statutory review the authority had decided that the applicant was intentionally homeless, that fact could not be ignored by a judge in deciding what relief to grant on an appeal against an earlier decision, unless it were displaced on public law grounds. So, in the present case the fact that Tower Hamlets had concluded in March 2005 that Mrs Deugi was not then eligible for assistance could not be ignored by the judge in deciding what relief to grant.
28. Chadwick LJ also held (page 650) that the judge was wrong to accept the premise that section 184(1) of the 1996 Act requires a local housing authority, in every case, to reach a view on the question whether the applicant became homeless intentionally. In a case where the authority can satisfy themselves as to the duty owed to the applicant without making enquiries as to intentionality, there is no basis for an assumption in law that the authority has reached any decision on that issue. It was accepted by the time of the appeal that the decision as to priority need was wrong. The judge was bound to quash the decision. Without more, the authority would be obliged to reconsider the matter. They were not required to assume that the relevant facts had remained unaltered since the date of the first invalid decision, or that the facts were other than the authority perceived them to be when it reconsidered the matter. Chadwick LJ then said at page 651:

"The question, therefore, is whether the judge was entitled, or required, on the material before him, to do more than simply quash the decision in the letter of October 8^th 1998. I would accept that, if that material had shown that the only decision as to its duty to provide accommodation or assistance that the Council, acting rationally, could reach was that the duty was that imposed by section 193(2) of the Act, the judge could properly have pre-empted further consideration by making an order to that effect. But that is not this case. I would accept, also, that there could be circumstances in which a judge might properly take the view that an applicant ought not to be deprived, by events which have occurred between the date of the original decision and the date of the appeal, of some benefit or advantage to which he would have been entitled if the original decision had been taken in accordance with the law. But, again, that is not this case."

29. On the issue of withdrawal, Mr Underwood QC for Tower Hamlets pointed out that, before the 1996 Act introduced the procedure for a local housing authority to review a decision in homelessness cases, challenges were made by judicial review. To save expense and time, authorities developed a process of non-statutory review by which they reconsidered and took again decisions which they realised had been erroneous or unsafe. This practice, said Mr Underwood, was formally encoded in the 1996 Act. A review, taking account of up to date information and reaching a different conclusion in substance, included withdrawing the original decision. As Buxton LJ said in Crawley at page 645:

"The application of the jurisprudence of public law to the process of decision-making in homelessness cases does not, therefore, necessarily lead to the conclusion that a decision, once taken, cannot be revisited."

Mr Underwood submitted in writing that the judge was wrong to conclude that there was no power to withdraw the original decision. I do not think that this part of Buxton LJ's judgment leads to this conclusion. I note that an immediate following part of his judgment was:

"The question for the court in an appeal under section 204 should rather be whether the whole circumstances of the case are such as to justify any, and if so what, relief in public law."

30. Mr Underwood went on to submit (I think) that there must have been an entitlement to withdraw the January 2004 decision, because its continued existence would prevent Tower Hamlets from taking the March 2005 decision, which, in the changed circumstances of 2005, they were entitled and obliged to take. In his oral submissions, Mr Underwood made the rather different point that, if, as he contended, the March 2005 decision was a legitimate decision, it was that decision which now applied. For this reason, the court could do no more on an appeal against the January 2004 decision that quash it, since there would be no persisting purpose in doing more. There was no issue on this limited question, since Tower Hamlets had conceded that they were wrong in January 2004 about Mrs Deugi's eligibility for assistance. To resuscitate a historic decision that has been replaced is not, says Mr Underwood, a proper exercise of a judicial review process.
31. I have said that oral submissions reduced the scope of this issue. I would accept that there are circumstances in which a local housing authority may revisit decisions in homelessness cases. They can obviously do so upon a statutory review under section 202 of the 1996 Act. The extent to which they can do so by non-statutory review may be debateable, as may be the question whether a non-statutory review resulting in a changed decision constitutes withdrawal of the original decision. It is not necessary to decide any of that in the present appeal.
32. Here, Tower Hamlets did not complete their statutory review. Mrs Deugi launched an appeal in the county court. It was only after this that Tower Hamlets said that they were withdrawing the January 2004 decision. That was tantamount to conceding the first issue in the appeal. In my judgment in these circumstances, although Tower Hamlets could concede the issue and express this as withdrawing their decision, they could not thereby unilaterally prevent Mrs Deugi from continuing her appeal, if an order in her favour would be of enduring benefit to her. I understood Mr Underwood eventually to accept this. In Chadwick LJ's words, Mrs Deugi ought not to be deprived of some benefit or advantage to which she would have been entitled if the original decision had been taken in accordance with the law. Conceding the issue alone would only lead to quashing the decision. But Mrs Deugi was asking the judge to vary the decision, and she maintained that a varied decision such as she obtained from the judge would give her an enduring benefit. As I have said, Mr Underwood was not instructed to argue that the appeal is entirely academic.
33. Again, in the circumstances of this case, I am not persuaded that the debate about withdrawal has any bearing on the status of the March 2005 decision, which is in any event not the subject of the present appeal. By then, circumstances had changed and Tower Hamlets considered that Mrs Deugi was no longer eligible for assistance. If that was correct, section 193(6)(a) supplied the statutory consequence – Tower Hamlets had ceased to be under the section 193(2) duty. Tower Hamlets did not need to withdraw the January 2004 decision for the statutory consequence to apply. Section 193(6)(a) may theoretically not even require a decision, although no doubt the local housing authority in practice needs to communicate its view, and section 202(1)(a) seems to contemplate a decision. Section 193(6)(a) does not, it seems, give the authority a discretion, although there may well be a dispute as to whether an applicant has ceased to be eligible for assistance. Once the authority communicated its view or decision, Mrs Deugi was entitled to request a review and thereafter to appeal if she was dissatisfied with the decision on the review. The continued theoretical existence of the 2004 decision would have made no difference to any of that. I do not see that the decision of this court in Demetri v Westminster City Council [2000] 1 WLR, to which we were referred, affects this analysis.
34. In my judgment, therefore, the judge correctly decided that he had power, not only to quash the January 2004 decision, but to vary it by substituting a different decision.
35. Mrs Deugi was in January 2004 homeless and eligible for assistance. The Baumbast exception, from which she benefited, logically meant that she was in priority need. Mr Underwood was unable to argue otherwise. Tower Hamlets should have decided that she was in priority need. But they had not reached a conclusion about intentional homelessness. Mr Underwood challenges the judge's conclusion that there was no realistic prospect of additional enquiries establishing an argument for Mrs Deugi being intentionally homeless.
36. There is, in my view, a factual distinction between the present case and Crawley. In Crawley, the authority had not addressed in their initial erroneous decision the question of homelessness. But there was a solid argument that the applicant was intentionally homeless, because she had failed to pay her rent. The unsuccessful argument was that Crawley were to be taken to have decided the homelessness issue in her favour in their initial decision. In the present case, it seems that Tower Hamlets did not initially address the question of homelessness, but were in the process of doing so as part of their uncompleted review. They never expressed their satisfaction that Mrs Deugi was not intentionally homeless. The question for the judge was whether there was any real prospect that Tower Hamlets, acting rationally and with the benefit of further enquiry, might have been satisfied that Mrs Deugi was intentionally homeless.
37. I express the question thus, conscious that close analysis of three decisions of this court could raise something of a debate. I have already set out in paragraph 28 Chadwick LJ's approach in Crawley – "… the only decision … that the Council, acting rationally, could reach." In Bond v Leicester City Council [2002] HLR 6 158 at 168, Hale LJ expressed her conclusion as "… more likely than not that if the authority had asked themselves the right question they would have reached the conclusion …". The submission made in Bond was in terms of "the only possible conclusion" (see page 167); and it looks as if Hale LJ was influenced by the definition of domestic violence in section 177 of the 1996 Act. In Ekwuru v Westminster C.C. [2004] HLR 198 at 205, Schiemann LJ held that "there is no real prospect of the Authority turning up further material which would entitle it to reach the conclusion that …". My formulation, which may perhaps be seen as an amalgam of Chadwick LJ and Schiemann LJ, is intended to reflect the fact that this appeal process is in the nature of judicial review.
38. Mrs Deugi's Notice of Appeal to the county court was limited to an application for a variation of Tower Hamlets' decision, so that it would provide that she was eligible for housing assistance. A written skeleton argument on her behalf dated 29^th September 2004 only addressed the issue of eligibility. There is no mention of the reason for her homelessness, other than the statement that Mrs Deugi's marriage broke down and that she and Mr Deugi divorced on 27^th October 2000. Mr Holbrook's supplemental skeleton of 22^nd April 2005 opened by saying that Mrs Deugi was seeking a variation of the original decision into a finding that she was owed the full housing duty under section 193(2) of the 1996 Act. The rest of the skeleton did not address questions other than Tower Hamlets' right to withdraw and whether Mrs Deugi was eligible for assistance. For practical purposes, it seems that intentional homelessness was not raised before the hearing as an issue requiring the court's attention.
39. The judge said that the applicant and her husband separated against a background of domestic violence. He referred to a letter from the Lancashire Constabulary of 8^th June 2001, addressed to Mrs Deugi's solicitors, which appears to be the only independent material relevant to a question of intentional homelessness. It records the inquires made of officers at Morecambe and of the incident logging system. It then reads as follows:

"There are two incident log references to Mrs Deugi and one further occurrence report. The first incident was recorded at 13.15hrs on 29 March 2000. The Domestic Incident Report records that Mrs Deugi was found in a very distressed state by a member of the public. She stated that her husband had left her and she had tried unsuccessfully to stop him. She further alleged that he had beaten her and ejected her from the house with their two children. There were no injuries caused to Mrs Deugi and no offences were disclosed. Social Services were informed of the situation.

On 28 April 2000 Mrs Deugi contacted the police and officers attended her home, she had refused to accept the service by a court official of a divorce petition and had become very distressed. The officer reported there was no incident of domestic violence on this occasion, however, there was an allegation made by Mrs Deugi that on 15 March 2000 Faquir Deugi had attempted to strangle her. This alleged incident was not reported to the police.

On 24 May 2000 Mrs Deugi reported that her husband had taken her passport and slapped her, she made no formal complaints of threat or assault. Social Services were informed."

A letter dated 12^th December 2003 from different solicitors then acting for Mrs Deugi to Tower Hamlets stated that Tower Hamlets had provided her and her children with accommodation since 18^th September 2000. The letter recorded instructions that her marriage was not happy and that she was severely beaten and regularly subjected to violence by her husband. The relationship broke down and the parties divorced on 27^th October 2000. "Our client remains distraught about this and believes that a reconciliation is possible".

40. It is clear that Mrs Deugi was claiming that she was subjected to domestic violence. Mr Underwood, however, submits that the material available to Tower Hamlets and the court reasonably required further investigation before Tower Hamlets (or the court) could properly be satisfied that Mrs Deugi was not intentionally homeless. Being distraught about the divorce and wanting a reconciliation at least raises questions under section 177 of the 1996 Act.
41. The letter from the Lancashire Constabulary relates incidents on four dates. The first, on 15^th March 2000 was not reported at the time nor apparently on the second date. On the second occasion, 27^th March 2000, Mrs Deugi stated that her husband had left her and she had tried unsuccessfully to stop him. She complained of violence and ejection from the house. There were no injuries and no offences were disclosed. The third incident on 23^rd April 2000, was not an incident of domestic violence. It is unclear from the accounts of the second and third incidents whether her husband was living at "her home" then or not. On the fourth occasion, 24^th May 2000, Mrs Deugi made no formal complaint of threat or assault.
42. The only point of this (perhaps undue) textual analysis is to indicate that, in my view, material before the judge raised a number of questions. Perhaps the most pertinent question was whether Mr Deugi was living in Mrs Deugi's home when she left Morecambe sometime before 18^th September 2000. He appears to have left her some time in March 2000. The narrative before this court has it that she left Morecombe in about May 2000. Where was she between May and September 2000? Mr Underwood submits that Tower Hamlets needed to make enquiries about these and other questions, not least because a decision that Mrs Deugi left Morecambe because of domestic violence might affect a possible application for housing by Mr Deugi to another authority. The judge was no doubt correct on the evidence before him that Mrs Deugi and her husband separated against a background of domestic violence. But I am persuaded that he was not entitled to conclude that Tower Hamlets, acting rationally, could not properly have felt obliged to make further enquiries before being satisfied that Mrs Deugi was not intentionally homeless; nor that there was no real prospect of additional inquires producing a different answer.
43. For these reasons, in my judgment, the judge should not have varied the January 2004 decision to the extent that he did. I would allow the appeal in part, and substitute a variation to the effect that, as at 20^th January 2004, Mrs Deugi was eligible for assistance and in priority need. It would have been for Tower Hamlets to reconsider the question of intentional homelessness, had not events, according to their understanding, overtaken the need for that decision.

Lord Justice Rix: I agree.

Lord Justice Gage: I also agree.