England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
His Honour Judge Welchman

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2012

Lord Justice Rimer :

1. This is a renewed application for permission for a second appeal in a housing case. The applicant is Khadija Ali, who fled from Somalia to this country via Uganda, where she left six of her children. On 30 March 2009 she obtained an assured shorthold tenancy of a flat at 22 Westcote Road, London SW16, which she occupied with her seventh child, Hassan, and for which her monthly rent of £1,430 was paid by housing benefit. She paid a £600 deposit to the landlord.
2. In January 2011, Mrs Ali gave notice to her landlord terminating the tenancy on 6 February 2011. She wanted to go with Hassan to Uganda to visit her other children and her intention was to redeem her £600 deposit and use it, as she did, to pay for the flight tickets. When she gave her notice, she believed that, had she gone abroad without first terminating her tenancy, her rent would not have been paid via her housing benefit and that she would in consequence build up an arrears liability that she would be unable to pay. In fact, she was wrong about that, as under the applicable regulations her rent would have continued to be paid for up to 13 weeks. It is, however, clear that it was only by terminating her tenancy that she could make the journey to Uganda, since she needed the £600 deposit to pay for it.
3. Mrs Ali went to Uganda, where she had originally intended to stay for three months. She in fact returned within six weeks as she had learnt that her jobseeker's allowance would only be paid during her absence for four weeks. On her return, she was unable to afford any rented accommodation because she had no, or insufficient, money for the required deposit. In April 2011, she presented herself to the London Borough of Wandsworth, the respondent, seeking accommodation as a homeless person.
4. Mrs Ali was interviewed on 11 May 2011. An attendance note records that she explained that she had to give up the tenancy of her flat in order to redeem the deposit to pay for the fares to Uganda. The note records that, on being asked why she had given up her tenancy, she again said that she needed the deposit money, which had all been spent on travelling to Uganda. On 29 July 2011, she wrote to the respondent, again explaining that she had used the £600 deposit for her ticket but also saying that 'the reason [why she left the flat] was to save money for the Government while I am away.' What she meant by that is a little obscure.
5. The respondent's decision on her housing application was given on 18 August 2011. It noted that she was homeless, in priority need and an eligible person. The respondent concluded, however, that she was homeless intentionally within the meaning of section 191(1) of the Housing Act 1996 and so not entitled to be re-housed under the Act. The relevant provisions of section 191 are these:

'191. Becoming homeless intentionally

(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.'

6. Mrs Ali sought a review of that decision under section 202, for which she was assisted by Threshold Housing Advice. They made representations on her behalf in two letters. They emphasised that she had, in good faith, misunderstood the position with regard to the payment of her rent by her housing benefit were she to go abroad (see paragraph 2 above). They made no point, however, that such misunderstanding caused her to make the decision to terminate the tenancy which otherwise she would not have done. They did not suggest, nor does it appear to have been Mrs Ali's case that, had she known the correct housing benefit position, she could have kept the tenancy alive and gone to Uganda: her position remained that she needed the deposit to pay for the Ugandan trip and could only get it by terminating the tenancy. The point was, however, nevertheless made on her behalf that when she terminated the tenancy she was labouring under an honest mistake as to the housing benefit position and was unaware of the true position.
7. The decision on the section 202 review, made in a letter of 14 November 2011, affirmed the respondent's decision of 18 August 2011. The reviewing officer dealt with the 'good faith' issue arising section 191(2). The officer recorded Mrs Ali's misunderstanding about the housing benefit position, and appears to have been of the view that she ought to have ascertained the correct position. The officer was, however, satisfied 'that your relinquishment of your interest in your [tenancy] was a deliberate act rather than an act made in good faith'.
8. Mrs Ali's section 204 appeal to the county court was heard by His Honour Judge Welchman in Wandsworth County Court on 23 April 2012. The judge's judgment dismissing the appeal reflects that the argument before him turned on the rationality of the respondent's review decision to the effect that Mrs Ali's had become homeless intentionally, and the thrust of her case to the judge appears to have been that there was an inadequate consideration of the provisions of section 191(1) and (2) in the review. The judge, however, held that the respondent was entitled to come to the decision it did in its review letter as to the cause of her homelessness, such decision being one that it was well able to reach. The judge's point was that it was clear that the reason why Mrs Ali had lost her home and become homeless 'was a deliberate act on her part to give up the accommodation in order to get the money for her airline ticket.' He regarded her misunderstanding about the housing benefit position as an irrelevance. He meant that it was a misunderstanding that had no causative impact upon her decision to terminate her tenancy.
9. The proposed second appeal seeks to challenge the judge's conclusion. The complaint is that the judge failed to recognise the respondent's failure properly to weigh and consider the section 191(2) considerations. Despite Mr Colville's helpful submissions, I remain unable to understand what Mrs Ali's case is. I agree with the judge that the housing benefit mistake was an irrelevance. It was not, and is not, any part of Mrs Ali's case that, had she known that her rent would have been paid by her housing benefit during her holiday in Uganda, she would have kept the tenancy alive and could and would have found an alternative source of funds with which to pay her travel costs. The respondent and the judge were therefore faced with the fact that her mistake as to the housing benefit position made no difference to her decision to terminate the tenancy. In terms of section 191(2), the fact of which she was unaware was an irrelevant one. I cannot see that it is properly arguable that, in concluding that Mrs Ali made herself homeless intentionally, the respondent fell into any error. On the contrary, it appears to me that a decision the other way would probably have been perverse.
10. In my view, therefore, an appeal against the judge's decision would have no real prospect of success. Moreover, the permission sought is for a second appeal. To my inquiry of Mr Colville as to which of the two CPR Part 52.13 limbs the proposed appeal came under, he said both. He was, however, unable to identify any important point of principle or practice that an appeal would raise, nor did he satisfy me that there was some other compelling reason why the Court of Appeal should hear an appeal that I regard as destined to fail.
11. Lloyd LJ refused permission on the papers on 17 July 2012 on the grounds that the judge's decision could not be seen to be wrong in law and that, even if the contrary was arguable, the appeal did not satisfy the second appeal criteria. I agree. I too would refuse Mrs Ali permission to appeal.