England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
MR RECORDER WIDDUP

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2007

Lady Justice Arden :

1. Mr Osei is a family man and he has come to live and work in London. His wife and two sons are now here with him. He contends that Southwark owe him a full housing duty, and that he is a person in priority need of housing. Southwark, having made certain inquiries into his case, decided that he was intentionally homeless and that it did not therefore owe him a full housing duty. The reviews officer of Southwark upheld this decision on review. Mr Osei appealed on the point of law to the county court, where the judge, Mr Recorder Widdup, dismissed his appeal. He now appeals on a point of law to this court. Essentially, his point of law is that Southwark were wrong to conclude that it was reasonable for him and his family to continue to occupy his former family home and made a material error of fact that that home was not overcrowded. It failed to make sufficient inquiries and thus effectively reversed the onus of proof. In my judgment, Southwark made no error of law for the reasons that I will explain below.
2. I must get one point out of the way straight away. Mr Osei is a Spanish national, and his former home was in Madrid. But those facts make no difference to the application of the law. Southwark accepts that, under Community law, Mr Osei is entitled to be placed in exactly the same position as respects public housing as a British national who had come to work in London. His case is exactly the same therefore as if he had brought his family from, say Newcastle, to London because he had obtained work there.
3. What then is the relevant statute law? The structure of Part VII of the Housing Act 1996 is well known, and I can conveniently set out the meaning of intentional homelessness and the manner in which intentional homelessness is determined by citation from my recent judgment in Denton v Southwark [2007] EWCA Civ 623:

"Meaning of intentional homelessness

3. S 191 of the HA 1996 deals with the meaning of "intentional homelessness" and in material part it provides as follows:

"(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."

4. S 191(1) contains four requirements. First, the applicant for housing must have deliberately acted or omitted to act. S 191(2) goes on to provide that an act or omission in good faith on the part of a person who was unaware of any relevant fact is not to be treated as deliberate. Secondly, his actions or omissions must have caused him to cease to occupy accommodation. Thirdly, that accommodation must have been available for his occupation. Fourthly, it must have been reasonable for him to continue to occupy that accommodation. It does not have to be shown that it was reasonable for him to leave the accommodation (see per Woolf J in R v Wandsworth LB ex parte Nimako-Boateng (1983) 11 HLR 98).

5. S 177 of the HA 1996 is relevant to the fourth requirement and in part to this case. Ss(1) deals with the situation where a person's continued occupation is likely to lead to violence. We are not concerned with that subsection and accordingly I will not summarise it. Ss (2) provides that, in determining whether it would be or would have been reasonable for a person to continue to occupy accommodation, the local authority may have regard to the general circumstances prevailing in relation to housing in its district. Ss (3) enables the Secretary of State to make orders specifying other circumstances in which it is to be regarded as reasonable or not reasonable for a person to continue to occupy accommodation or other matters to be taken into account in determining whether it would be or would have been reasonable for a person to continue occupation. We have not been taken to any order made under this subsection.

How intentional homelessness is determined

6. I should summarise very briefly the procedure for determining applications for housing. It falls to the local housing authority to make a decision in the first instance as to whether an applicant for housing has become homeless intentionally. In reaching that decision, it must have regard to the guidance issued by the Secretary of State and under that guidance the local housing authority has to give "careful consideration to the circumstances of the applicant and the household" (Homelessness Code of Guidance for Local Authorities (2002) para. 7.15, now para. 11.22 of the Homelessness Code (2006)). The local authority is under a statutory duty to make such inquiries as are necessary to satisfy itself as to whether any, and if so what, duty is owed to the applicant (S 184 of the HA 1996, and see generally R v Royal Borough of Kensington & Chelsea, ex parte Bayani (1990) 22 HLR 406). The inquiries will not necessarily be limited to matters raised by the applicant. If the local authority decides that a person has become homeless intentionally, the applicant has the right to have that decision reviewed by the local authority (s 202 of the HA 1996). If a person is dissatisfied with the decision on review under s 202, he may appeal, on a point of law only, to the county court. From there he can appeal, with permission, to this court."

4. S 176 provides that accommodation is not to be regarded as available for an applicant's occupation unless it is available for him together with any person who normally resides with him as a member of his family. Accordingly Southwark were bound to consider whether accommodation was available not only for Mr Osei but also for his family.
5. In the passages cited above from Denton, I stated that s 191 (1) contained four requirements. The appellant accepts that he satisfies the first two requirements in this case by terminating his tenancy of his earlier home in Spain. There is also no issue as to the third requirement that that accommodation was available for his occupation since it is accepted that the tenancy was terminated before the contractual date for its expiry. It may indeed have been available for renewal after that date, though there is an issue as to that. The issue in this case is whether it was reasonable for Mr Osei to occupy the flat at the date when he terminated his tenancy of it.
6. The third and fourth requirements identified in Denton, namely the requirements that accommodation must have been available to him for his occupation and that it was reasonable for him to continue to occupy that accommodation, must be considered at the time at which he ceased to occupy that accommodation. This point falls to be added to the points which I made in [4] in Denton.

Function of the court

7. One of the issues in this case is whether Southwark made appropriate inquiries. I dealt with the court's function in this context at [26] of my judgment in Denton:

"I have explained that a local authority must make appropriate inquiries when it receives an application for accommodation. However, the court will not hold that it should have made further inquiries unless it was unreasonable in the sense of the perverse or irrational for it not to make further inquiries. Thus, in Cramp v Hastings BC [2005] HLR 48, Brooke LJ, giving the judgment of the court of which I was also a member, held:

'In each case, it was for the council to judge what inquiries were necessary, and it was susceptible to a successful challenge of a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further inquiries suggested by the appellant's advisers.' "

8. Likewise, the court will only hold that there is an error of law in relation to a finding of fact made by the local housing authority under section 202 of the Housing Act 1996 if the finding of fact was the such that no reasonable housing authority could have made that finding on the evidence before it.
9. The application of the relevant statutory provisions in this case depends of course on the facts, which I will now summarise.

Background

10. As I have said, Mr Osei is a Spanish citizen. He was born in Ghana. From 1999, he leased a room as a joint tenant in a shared flat in Madrid. The flat comprised 3 bedrooms (2 single and 1 double), a bathroom, a kitchen and a living room. Mr Osei lived in one of the single rooms with his wife and two children (born in September 2000 and February 2004 respectively). His co-tenant, Mrs Restituyo, lived in the double room with her daughter. The third bedroom was kept vacant. In June 2001, Mr Osei signed a five year lease with a reduced rent of €300 per month. He was employed in a factory on a low income and could not afford more spacious accommodation.
11. In 2002, Mrs Restituyo's daughter, then 18 years old, left. She got married and moved in with her husband's parents. In January 2004, Mrs Restituyo's daughter returned to the flat with her husband and young child and they occupied the remaining empty bedroom. The flat accordingly became seriously overcrowded with 5 adults and 3 children sharing 3 bedrooms. There was some evidence that relations between the cohabitants became strained.
12. On 8 March 2005, Mr Osei lost his job. He could not find alternative employment or obtain state assistance to pay the rent and started to accrue arrears of rent. On 30 June 2005, Mr Osei moved to the United Kingdom in search of work, staying with a Ghanaian friend, Mr Nimoh, and his family as a bare licensee in his property (Flat 3, Ash Tree House) in London. In October 2005, Mr Osei found work as a security guard.
13. Mr Osei returned to Madrid in December 2005. He relinquished the tenancy with his landlord's consent, paid the 3 month's arrears of rent that had by then accrued and, on 27 December 2005, brought his wife and two children to London to live in Mr Nimoh's flat. However, Mr Nimoh was not prepared to accommodate Mr Osei and his family long term and on 28 December 2005 Mr Nimoh terminated Mr Osei's licence. Mr Osei promptly applied to Southwark for housing assistance, claiming that he was unintentionally homeless. On 13 January 2006, Mr Osei and his family were placed in temporary accommodation at Red Lion House, 407 Walworth Road, London SE17.
14. On 20 January 2006, Mr Osei was interviewed by Southwark caseworker, Ms Ade Adedeyinbo. Mr Osei also completed an Accommodation Abroad Form which provided basic details of the property in Madrid, including a statement that 3 adults and 2 children occupied that property. Mr Osei said that he completed this form with the assistance of Ms Adedeyinbo, whom (he alleges) answered questions as to what was appropriate to include and which boxes to tick.
15. On 7 February 2006, Southwark issued a section 184 decision stating that Mr Osei was intentionally homeless since he had surrendered accommodation in Madrid that was available and reasonable for him to continue to occupy. The 7 February 2006 decision stated that Mr Osei was eligible for housing assistance as defined in section 185; he was homeless as defined in section 175; he had a priority need as defined in section 189; but that he was intentionally homeless from his former flat in Madrid.
16. In reaching the decision that he was intentionally homeless, Southwark relied in particular on the following points. Mr Osei gave up accommodation in Madrid that was available and reasonable for him to occupy and came to the UK without making any firm alternative arrangement. At the time he came to England in July 2005, he was only staying with Mr Nimoh as a bare licensee. Southwark did not therefore accept that he had surrendered his tenancy in good faith. The Madrid accommodation was available for Mr Osei's continued occupation and would have been reasonable for him to occupy by virtue of its size, affordability and suitability if he had not surrendered his tenancy. There were no rent arrears in relation to the Madrid flat. Mr Osei was in remunerative work in Madrid and was keeping up rent payments. Mr Osei had a contract to remain at the Madrid property until June 2006.
17. No mention is made in the 7 February 2006 decision of Mr Osei having lost his job, of their being rent arrears or of the overcrowding at the Madrid flat. Mr Osei then instructed solicitors Ole Hanson & Partners. On 28 February 2006, the solicitors wrote to Southwark stating that the section 184 decision contained a number of factual errors that they wished to correct. In the meantime, the solicitors explained that the property was occupied by 5 adults and 3 children when Mr Osei left to come to the United Kingdom and it was therefore grossly overcrowded. On 14 March 2006, Mr Osei's solicitors wrote a further letter to Southwark stating that Mr Osei did not have adequate time to complete the Accommodation Abroad Form in detail; the caseworker, Ms Adedeyinbo did not appear to understand the answers he gave to her questions; the caseworker wrongly recorded that Mr Osei was employed and gave up his job to come to the United Kingdom; and that Mr Osei had asked the landlord in Madrid to intervene in relation to the overcrowding, but the landlord decided not to intervene. The letter also explained the tenancy of the Madrid property and the details of its occupants.
18. On 5 May 2006, a Southwark caseworker telephoned Mr Osei to ask further questions. Southwark's record of this telephone call was disputed by Mr Osei. On 9 May 2006, Southwark issued a section 202 review decision. On 12 May 2006, Mr Osei's solicitors wrote to Southwark stating that its review decision had wrongly stated that no further representations had been received no behalf of Mr Osei. On 16 May 2006, Southwark wrote back confirming that the review decision dated 9 May 2006 was withdrawn to take into account the new representations that had been made.
19. On 12 July 2006, Mr Osei's solicitors made further representations to Southwark. In this letter, the solicitors identified a number of factual inaccuracies in Southwark's original section 184 decision. On 20 July 2006, Southwark issued its section 202 review decision and confirmed that it had decided to uphold the original decision that he was intentionally homeless. This decision was reached principally on the grounds that Mr Osei relinquished his tenancy without first having made adequate arrangements to find alternative accommodation for his household in the United Kingdom. In particular, Southwark relied on the fact that Mr Osei had lived in his London accommodation for several months before deciding to bring his family over from Spain. He therefore knew that the accommodation in London consisted of a room in shared accommodation that was clearly unsuitable for his household's needs and was not large enough to accommodate both his family and Mr Nimoh's family. Mr Osei should have first made arrangements to secure housing for his family before relinquishing the Madrid tenancy.
20. Furthermore, Southwark did not accept that Mr Osei left the Madrid property due to its overcrowding. This was said to be because Mr Osei failed to mention any issues relating to overcrowding during his initial interviews with Southwark or on his Accommodation Abroad Form. Overcrowding was only raised as an issue after Southwark had issued its negative decision on 7 February 2006 and after Mr Osei had obtained legal advice. (Mr Osei seeks to explain why overcrowding was not mentioned at para 48 of his first witness statement dated 26 September 2006.) Southwark did not accept Mr Osei's submission that he had misunderstood precisely what was required for the Accommodation Abroad Form and that he needed the assistance of a caseworker to complete the form (Southwark did not consult the caseworker before issuing the Review Decision because the caseworker was temporarily absent). Southwark also said that Mr Osei could have sought more time to complete the form if he needed it. Southwark accepted that Mrs Restituyo and her daughter and her family occupied the property for a period of time. However, Southwark did not consider there was sufficient evidence to show they were all in occupation at the time Mr Osei relinquished his tenancy of the property.
21. Moreover, Southwark considered that the available evidence showed that the main motivating factor for Mr Osei's decision to leave Madrid was his "desire to come to the United Kingdom to work and not the fact that [his] family were forced to endure overcrowding. Indeed, if as it has been stated the overcrowding in Spain was so bad that it was impossible to endure any longer, it would be illogical for you to make a decision to go to Spain, relinquish your tenancy and to bring your family to the United Kingdom to endure grossly overcrowded conditions here." Finally, Southwark considered that the Madrid property was affordable for Mr Osei because he was working in Spain for the majority of the time he held that tenancy and he was working in the United Kingdom when he relinquished the tenancy. There were also no rent arrears when he relinquished the tenancy. On 10 August 2006, Mr Osei instituted an appeal under section 202 of the Housing Act 1996. The appeal was heard by Mr Recorder Widdup who gave judgement on 5 January 2007. As the issue turns on whether Southwark made an error of law in its review decision, I am not concerned to set out a summary of the decision of the county court on appeal.

Analysis

22. Mr Burton, for Mr Osei, does not contend that Mr Osei was forced to leave the Spanish flat because of the financial circumstances but for other reasons. He submits that Mr Osei's home was overcrowded at the date he terminated his tenancy and that Southwark was wrong to come to the contrary conclusion. He contends that Southwark effectively reversed the onus of proof on this matter rather than make sufficient inquiries of its own.
23. The reviews officer conducting a review under s 202 of the Housing Act 1996 is not of course carrying out a judicial function. In R (Winchester) v Gravesham Borough Council (1986) 18 HLR 207, Simon Brown J as he then was described the principles applicable to the task of the housing authority when determining intentional homelessness in these terms:

"The principles as to their application I take from the authorities and summarise as follows:

1. The burden lies upon the local authority to make appropriate inquiries (section 3(1) and 3(2) of the Act in a caring and sympathetic way: R v West Dorset District Council, ex p. Phillips (1984) 17 H.L.R. 336. These inquiries should be pursued rigorously and fairly albeit the authority are not under a duty to conduct detailed C.I.D.-type inquiries: Lally v Kensington and Chelsea Royal Borough, The Times, March 27 1980. The applicant must be given an opportunity to explain matters which the local authority is minded to regard as weighing substantially against him: R v Wyre Borough Council, ex p. Joyce (1983) 11 H.L.R. 75.

2. The burden is likewise upon the local authority to be satisfied that the applicant became homeless intentionally before it can reach such a conclusion; if its inquiries lead to doubt or uncertainty, the issue must be resolved in the applicant's favour: R v Thurrock Borough Council. ex p. Williams (1981) 1 H.L.R. 128.

3. The main question to which the local authority must apply itself under section 17 is: are we satisfied that it would have been reasonable for the applicant to stay where he was? It is not sufficient for the applicant's purposes that the authority should conclude merely that it was reasonable for him to leave: in other words, if on the facts it would have been reasonable for him either to depart or to remain, then his application would fail: R v Hammersmith and Fulham Borough Council ex p. Duro-Rama (1983) 9 H.L.R. 73.

4. Accommodation for the purposes of the Act and not least sections 1 and 17 [dealing with the meaning of homelessness and intentional homelessness respectively, the latter being in the same terms so far as material as s.191 above] need not be appropriate or reasonable provided only that it is properly described as accommodation: Puhlhofer v London Borough of Hillingdon (1986) 18 H.L.R. 158, a recent decision of the House of Lords which was reported in The Times during the course of srgument in these proceedings. The decision has, moreover, an additional importance. It provides a salutary and forceful reminder that the court's supervisory jurisdiction can only properly be invoked in exceptional cases under the 1977 Act, namely where the local authority has misconstructed the Act or abused its powers or otherwise acted perversely; the court must scrupulously avoid assuming any independent fact-finding or decision-making role. A local authority's conclusion would have to be one "verging on an absurdity" before the Wednesbury principle of unreasonableness could successfully be invoked by a disappointed applicant. "

24. Returning to this case, Mr Osei's solicitors have now produced a letter from the landlord of the Spanish flat stating that, at the time Mr Osei left, the flat was occupied not only by Mr Osei, and his family, but also by Mrs Restituyo, her daughter, son-in-law and grandson. So more information is now available. But the fact that after the review decision an inquiry is made by the applicant which elicits further material information does not mean to say that a local authority necessarily made inadequate inquiries. Moreover, Southwark were entitled to approach the matter in this case, albeit within the principles described above, with some scepticism since (as I have explained above) the issue of overcrowding had not been raised at the outset. However, I am prepared to proceed on the basis, without deciding it, that Southwark did not make sufficient inquiries as to whether the Spanish flat was overcrowded at the time Mr Osei and his family left. Southwark appears to have accepted that, if there were eight occupants at the date when Mr Osei terminated the tenancy, the flat would have been overcrowded. However, Mr Burton fairly accepts that the fact that earlier accommodation was overcrowded does not automatically mean that it was not reasonable for Mr Osei and his family to continue to occupy it.
25. Mr Burton submits that it was not reasonable for Mr Osei to continue to occupy the Spanish flat unless it met his needs and was affordable. He submits that it was not reasonable for Mr Osei to live apart from his family and that the flat was unaffordable in the sense that if he went back to Spain he would be unemployed and therefore would not be able to pay the rent. However, he had been able to pay the rent out of his United Kingdom earnings since he came to London. Mr Burton further submits that Mrs Osei was finding it difficult to share the Madrid property but the evidence on this is very slight indeed. I am therefore not able to give this submission much weight.
26. In my judgment, the difficulty for Mr Osei is that Southwark also came to their decision that Mr Osei was intentionally homeless on the assumption that the Spanish flat was overcrowded: see the passage quoted at [21] above. Southwark concluded that, even if the Spanish flat had been overcrowded, it was not reasonable for Mr Osei to bring them to London because the only place which he had for them was the one room which he occupied with Mr Nimoh's permission. He was substituting for the family home yet more unsatisfactory premises since they were also overcrowded and he had no security of tenure with Mr Nimoh.
27. As Mr Broatch, for Southwark, points out, the statutory question is not what would be the best arrangement for Mr Osei and his family. Moreover, it follows from s 177(2) of the Housing Act 1996 to which, I have referred above, that in forming a view as to whether it was reasonable for Mr Osei and his family to continue to occupy accommodation Southwark was entitled to have regard to the general circumstances prevailing in relation to housing in its district. Being an inner city area, Southwark has considerable demand on its housing resources.
28. Accordingly, Southwark concluded, on this alternative basis also, that it was reasonable for Mr Osei and his family to continue to occupy the Spanish flat at least until Mr Osei had secured other arrangements for them in London. They had security of tenure in Spain until June 2006 at the least. Contrary to Mr Burton's submission, Southwark is not saying that Mr Osei must live apart from his family indefinitely.
29. In my judgment, Southwark was entitled to come to its conclusion on its alternative ground. It cannot be set aside as a conclusion that no reasonable housing authority in the position of Southwark could have reached in all the circumstances of this case. Therefore there is no error of law in this conclusion.
30. Because Southwark had an unassailable alternative ground of decision, I do not accept the submission, made by Mr Burton, that Mr Osei was entitled to a fresh decision that reached a proper conclusion on the question whether the Spanish flat was overcrowded at the date of leaving. Even if the decision maker were to revisit that matter, and to conclude that the flat was overcrowded at that date, that would not affect Southwark's conclusion on the alternative ground that even if there was overcrowding it was still reasonable for the Osei family to continue to occupy the Madrid flat because the overcrowding was at least as bad at Mr Nimoh's flat and they would have lost security of tenure.
31. Mr Burton cited R (Bibi) v Tower Hamlets LBC (1991) 23 HLR 500 where the court accepted that there had been insufficient inquiry by the local authority into the applicant's housing situation before coming to the United Kingdom and set aside a local authority's decision on intentional homelessness. Mr Burton also cited R (Duro-Rama) v Hammersmith and Fulham LBC (1983) 9 HLR 71 where Woolf J set aside a decision of a housing authority on intentional homelessness because it had failed to take into account all the relevant circumstances in considering whether it was reasonable for the applicants to continue to occupy accommodation previously enjoyed abroad. But in these situations turned on in their particular facts and it is not open to this court to hold that the conclusions of the authority in this case were perverse.
32. The decision taken by Southwark in this case is the same in effect as that taken by the housing authority in De Falco v Crawley Council [1980] QB 460, where this court held on the basis of the statutory predecessor of section 191 of the Housing Act 1996 that a local authority could properly determine that Italian workers who had come to take up work in England and brought their families with them were intentionally homeless. They had not arranged permanent accommodation in the United Kingdom, where there was great pressure on housing. The decision of this court in that case was approved by the House of Lords in R v Hillingdon Council ex p Islam [1983] AC 688 at 709 per Lord Wilberforce and at 717 per Lord Lowry. Indeed Lord Lowry went on to say that "There will of course be, and in the interest of mobility of labour ought to be, cases where the housing authority will under s 17(1) [the statutory predecessor of section 191(1)] accept that it would not have been reasonable in the circumstances for the applicant to continue to occupy the act accommodation which he has left." However, whether the interest of mobility of labour is a sufficient consideration must be a matter for the local housing authority and I do not consider that Southwark could be said to be perverse in the present case because it did not consider that that was a factor which outweighed the shortage of housing in their area in this case.
33. Before I conclude the judgment, I wish to express my sympathy for Mr Osei's position. He wants to work. He has found a job in London but he cannot find a place to live at reasonable cost and needs to find social housing. The problem is that there are many people from outside London in this position. Housing in London is in short supply. Parliament has laid down how the housing resources of local housing authorities are to be allocated. A housing authority is to treat as in priority need persons whom the local authority is satisfied have not become homeless intentionally. This court must apply the law as laid down by Parliament.
34. For the reasons given above, I consider that the appeal must be dismissed.

Lord Justice Hooper:

35. I agree.

Master of the Rolls:

36. I also agree.