ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANDREW MORRITT)
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD
|- and -
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Ms Kerry Bretherton (instructed by Turpin & Miller Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Toulson:
"How our clients are homeless
Our clients are a married couple. Sean Hemans was a private in the ColdStream Guards for the last 10 years. After returning from Afghanistan in April 2007, Mr Hemans had a form of mental breakdown. The army medical officer informed him that he might be suffering from post-war syndrome. In October 2008, Mr Hemans was discharged from the Army. His MOD accommodation came to an end some three months following that date.
On 13 October 2008 following a child protection conference held in the Royal Borough of Windsor & Maidenhead [K] was made the subject of a child protection plan following concerns about serious issues of abuse.
Mrs Hemans and her daughter were provided with accommodation as an interim measure following an assessment that they were at risk. Mrs Hemans and [K] were moved to a woman's refuge in Banbury and accommodated by Oxfordshire County Council in the premises they presently occupy. This was always intended to be an interim measure. The accommodation in Banbury resulted in our client being unable to continue with her employment at the Abbey National where she has worked for the last 5 years. Their office is based in Staines. Our client's employer agreed to give her a one year career break and that expires on 20 October 2009.
It is the wish of Mrs Hemans and her husband to be reconciled and to live together as a family. Mr Hemans is homeless. It is not reasonable for Mrs Hemans and her child to continue to occupy the Banbury accommodation for the following reasons. Firstly it was intended as an interim measure only. Secondly it is too far from our client's place of work and she will be unable to commute following her return to work on 20 October 2009. The accommodation in Banbury is away from the support networks of our client's friends. Our client has worked for the Abbey National for the last 6 years, has resided in Windsor for the last five years prior to being moved by Social Services. Our client would be unable to commute to and from work without leaving her daughter at school late in the evening before her friend can pick her up and accommodate her overnight.
In our view this adversely affects the child's welfare and impinges on our client's right to family life.
We refer further to the Code of Guidance and in particular Code 8.34 which suggests that factors that may be relevant to a particular case include accommodation which is provided to people who are assessed as fleeing domestic violence.
We did inform you that actions taken by Social Services to move our client into the temporary accommodation were not done at the request our client. Our client was aware that her husband has suffered some sort of breakdown because of his time in the army. Our client hopes to reconciled with her husband once she has been accommodated back in the authority of which she has a local connection. That authority is the Royal Borough of Windsor and Maidenhead.
Our client is in priority needs because she has a child aged 5 years."
"1. A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or;
(c) occupies as a resident by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
.3. A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with –
(a) any other person who normally resides with him as a member of his family
(b) any other person who might reasonably be expected to reside with him."
"I am writing to advise you of this council's decision regarding your homeless application. Our decision is that you are eligible for assistance, however you are neither homeless nor threatened with homelessness as you have available to you accommodation at 6, Waterloo Drive, Banbury, which is reasonable for you to occupy and remains available to you. The accommodation is 2 bedroomed accommodation which Mrs Hemans holds on an Assured Shorthold Tenancy. The tenancy agreement expires on 8th February 2010. The accommodation was found by Mrs Hemans after registering with Cherwell District Council and the landlord is registered with that Council's private accommodation lettings scheme.
You have made a joint application on the basis that you wish to live together immediately and are looking for accommodation where you can live as a family. If this is the case that you are to be reunited, there is no reason why Mr Hemans, who as a member of Mrs Hemans' family could reasonably be expected to reside with her, could not join Mrs Hemans in that accommodation, therefore reuniting the family."
A copy of the letter was faxed to Turpin & Miller, who responded on the same day, indicating that they were dissatisfied with it and asking that their letter be treated as a request for a review, detailed grounds for which were to follow.
"1. Your decision interferes with Erica Hemans' and her daughter's right to family life. The context in this case is one where Erica was rehoused out of the area temporarily because of domestic violence. She never wanted to move or leave her husband and complied with the request of Windsor social services to move solely because of her child. Oxfordshire County Council Social Services support her move back into the [Royal] Borough of Windsor and Maidenhead and support the aim of reuniting the family although they anticipate this will be after Mr Hemans completes his course in December 2009 and after an assessment. ...
3. Sean's only local connection is with the [Royal] Borough of Windsor and Maidenhead. The family's support network and friends live in this borough. Sean has been institutionalised as a result of being in the Army for 10 years. Your letter does not adequately take into account the effect on him of having to move to a different borough in which he knows no-one and will have no contact with people who have been in the Armed Forces.
7. Mr Hemans receives counselling and support in Windsor. He has no rights of occupation in respect of the property in Banbury.
8. Erica Hemans' job with Abbey National Building Society was kept open for her for a period of one year until she managed to sort out her family situation. ... The new job our client has been offered will be in Windsor and the commuting distance is too far away for her accommodation in Banbury. She will not be able to get back from work in time to pick up her daughter from school and will have to arrange for her daughter to stay with a friend overnight. It interferes with Erica and her daughter's right to family life and is inappropriate particularly given the fact that the child has long been separated from her father."
"In summary Mrs Hemans' accommodation at Waterloo Drive, Banbury was provided on a temporary measure only. Our client did not want to move to the accommodation but was informed that unless she did so and separated from her husband, there was a danger of her child being taken into care. That was the information given to our client by Windsor and Maidenhead Social Services. It was always our client's intention to reunite with her husband.
Mr Hemans' position has throughout been of someone who has suffered severe psychological trauma as a result of being involved in two conflicts overseas. Events which led up to the departure of Erica from the matrimonial home were an aberration caused by that psychological breakdown.
Following Mr Hemans' eviction from the MOD accommodation it was the intention of the parties to reunite together back in Windsor which is the only Borough our clients have known and are familiar with. It is where their local connection is. They made it quite clear to Windsor they intended to be reunited and were informed that would not be done until Mr Hemans completed his Changing Ways Assessment Course. He has now done this."
I add two postscripts to that letter. First, the letter was supported by a letter from the organisers of the Changing Ways Assessment Course and by Oxfordshire County Council, verifying the progress which he and the family have been making.
"I am satisfied that the accommodation at 6 Waterloo Drive, Banbury is available for occupation by both (Mr & Mrs Hemans) and that it is not accommodation of a temporary nature. The accommodation is of adequate size for the family and is accommodation of reasonable standard."
The letter then went on to set out the history of applications which Mrs Hemans had made to Cherwell District Council for accommodation while she was in Banbury. In short, she had initially been put in a woman's refuge and from there, with the local authority's assistance, she had been put into accommodation for which she had an assured shorthold tenancy. Mr Hemans himself had made a homelessness application because he was sleeping on the sofa at the house of friends prepared to have him as a stop-gap measure.
"I have looked at the circumstances surrounding Mrs Hemans' departure from this area and have consulted the available paperwork. I am satisfied that the circumstances of Mrs Hemans' departure from the Royal Borough of Windsor and Maidenhead are not relevant to this decision being considered here, which is that Mr and Mrs Hemans are not homeless. I have however considered them and I note that Mrs Hemans left the area in October 2008 and was at that time fleeing domestic violence. She entered a woman's refuge and was estranged from her husband who was the perpetrator of the abuse. Neither Mr nor Mrs Hemans dispute this. Both Mr & Mrs Hemans engaged solicitors to resolve custody and access issues relating to their child. Mrs Hemans completed two Homeseekers forms at Cherwell District Council and did not include her husband on either.
Mr Hemans made an application to this Authority on 11th June 2009 as a single person. He was duly supported in this application by Shelter who provided him with a detailed letter to set out his application and yet he did not include his wife in the application."
Mr and Mrs Hemans said that until he had successfully completed his Changing Ways course, there was no way that the social services department would have been content to see the family reunited.
"All of the information would serve to confirm that this marriage was at an end. As you both now wish to reunite, it is only reasonable to include Mr Hemans in the application. Indeed a joint Homelessness Application has been made and Mr Hemans' right to join Mrs Hemans in the accommodation which she is able to provide in order to effect a reunion is a matter which I have taken into consideration in the course of this review. I believe that this accommodation at 6 Waterloo Drive is available for accommodation by Mr Hemans.
I understand from the case papers that Mr Hemans has a car and is hoping to become a Driving Instructor. This suggests a level of mobility that would not restrict Mr Hemans from travelling from Banbury to any counselling sessions in Bracknell.
Mrs Hemans has taken a job in Windsor with the Abbey National. The solicitors indicate that this is a 'new' job. Mrs Hemans has made a choice to take this employment and has done so in full knowledge of the travel involved. Mrs Hemans has also made decisions regarding the childcare options available to her. It is not unusual for people to commute to work. However, I am satisfied that choices of this nature cannot affect the validity of the decision made in this matter, as clearly choices as to where people take employment are not within the influence of this or any other Housing Authority."
50. In my view, it is therefore very important that, while Circuit Judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.
51. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.
52. Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.
Sir Andrew Morritt:
Lord Justice Sullivan:
Order: Appeal allowed in part.