England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE WULWICK
B40CL012

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2017

Lord Justice Sales:

1. This is an appeal against the decision of 29 July 2015 of HHJ Wulwik sitting in the Central London County Court, by which he dismissed an appeal brought by the appellant under section 204 of the Housing Act 1996 against an assessment made by the respondent housing authority ("the Council") dated 22 December 2014 upon review under section 202 of the 1996 Act. The Council's assessment in relation to establishing the extent of the duties it owed the appellant with respect to provision of social housing, was that the appellant was intentionally homeless, as defined in section 191 of the 1996 Act.
2. The reviewing officer's section 202 decision confirmed a previous assessment of intentional homelessness made in a decision dated 14 April 2014 by another officer of the Council under section 184 of the 1996 Act. The judge held that the reviewing officer was entitled to make the assessment of intentional homelessness which he did.
3. The case concerns the application of section 191(1) and (2) of the 1996 Act, which provide as follows:

"191 – Becoming homeless intentionally

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.

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."

Factual background

4. The appellant is from the island of Sao Tomé off the west coast of central Africa. Until she came to the United Kingdom in February 2013 she lived there with her partner and children in an apartment in a building called Uba Flor under a tenancy agreement. The appellant's sister lives in the United Kingdom.
5. The appellant's daughter suffers from a disability. The appellant's sister suggested that the appellant come to the United Kingdom with her daughter because the medical treatment for her daughter would be better here.
6. The appellant and her daughter pursued this suggestion. They left Uba Flor and came to the United Kingdom, arriving here on 2 February 2013. They went to stay with the appellant's sister at her rented accommodation at 19 Broad Common Estate, London N16. The appellant's partner gave up the tenancy of Uba Flor and moved in with his mother.
7. The appellant and her daughter stayed at the sister's address until September 2013, when the sister's tenancy was terminated pursuant to notice given in August 2013 by her landlord. The landlord gave notice because he wished to refurbish the property. At that stage, the appellant and her daughter applied to the Council to be provided with social housing.
8. It was in determining that application that the Council decided that the appellant was intentionally homeless within the meaning of section 191(1) of the 1996 Act. The appellant, acting by solicitors, asked for a review of that decision. This led to the decision of the reviewing officer, who also assessed that the appellant was intentionally homeless.
9. The relevant facts were determined by the reviewing officer in his decision. There is no challenge to his findings of fact on this appeal.
10. He identified the relevant deliberate act of the appellant as leaving the Uba Flor accommodation. At paras. 32-34, 47-48 and 50 of his decision, the reviewing officer set out these findings:

"32. I am satisfied that 19 Broad Common Estate, London N16 6NB is not your client's last settled address. In your representations you seek to support your assertion that 19 Broad Common was settled intervening accommodation, not Uba Flor. You assert that your client prior to coming to the UK had made arrangements to stay with her sister at 19, Broad Common Estate, on her immediate arrival in the UK, and that afterwards it was agreed that your client could stay for as long as necessary and that it was your client's intention to remain with her sister for more than a fleeting amount of time.

33. I find your assertion that your client intended to stay with her sister for more than a fleeting amount of time surprising, since she had not agreed with her sister how long she could stay until after she had arrived at her sister's address. Your client admits that she did not know 'how London is' and she had just been advised that there are good medical specialists here who could treat her daughter.

34. At the time your client left Uba Flor she had no clear understanding from her sister about how long she could remain with her. The intention for the accommodation was to last only until your client's daughter was well. This arrangement had the seeds of its own destruction and clearly was not intended to be long term. Your client states that she would be looking for her own accommodation. This clearly defines the arrangement as being short term and not open ended …

…

47. I am satisfied that at the time your client left Uba Flor, she did so based on little or no information about London and the accommodation her sister would be providing for her. She had no expectation as to how long her sister would provide housing for her, and it may be said that your client left Uba Flor on a 'wing and a prayer' and nothing else.

48. At the point your client decided to leave Uba Flor, she did so only in the knowledge that she could stay with her sister upon her arrival. There was no agreement as to the length of time involved. Your client states she was only mindful of her disabled daughter's medical needs, this appears to be at the expense of any investigation by your client into her long term housing in the UK.

…

50. There is nothing to suggest that your client had an expectation that when she left Uba Flor for London she would have permanent housing in the UK. There was no offer of permanent housing made to your client by her sister which later failed due to her sister's eviction from 19 Broad Common Estate."

11. The appellant maintained that when she left Uba Flor she had had no intention of making a homelessness application when she came to the United Kingdom and that she had acted in good faith. At paragraphs 58 to 64 of the decision, however, the reviewing officer set out his assessment that for the purposes of section 191(2) the appellant had not acted in good faith in deciding to leave Uba Flor to come to the United Kingdom. She had not even thought about or considered homelessness law in the United Kingdom when she decided to leave Uba Flor to come here. At para. 64 he wrote: "I am satisfied that your client had, by shutting her eyes to the obvious, not acted in good faith."
12. At paragraphs 65 to 67 of the decision the reviewing officer addressed the question whether the appellant had acted in ignorance of a relevant fact for the purposes of section 191(2), as follows:

"65. An applicant's appreciation of the prospects of future housing can be treated as 'awareness of a relevant fact' for the purposes of section 191(2) provided that it is [sufficiently] specific and provided it is based on a degree of genuine investigation, not mere aspiration. It is ignorance of a relevant fact which must not have been deliberate, not ignorance of the legal consequences.

66. The fact that your client did not fully explore with her sister the nature and extent of the accommodation she would be providing does not amount to a genuine investigation, and amounts to no more than a mere aspiration.

67. The fact that your client did not understand the English legal system in relation to being homeless is ignorance of the legal consequences and not ignorance of a relevant fact. Your client was aware at the time she left her home in Sao Tome she had not been offered permanent accommodation by her sister."

13. Thus, in applying section 191, the reviewing officer decided both that when the appellant left Uba Flor she had not been unaware of any relevant fact and also that her act in leaving Uba Flor was not in good faith for the purposes of section 191(2).
14. On the appellant's appeal to the county court, the judge found that the review decision identified the relevant act of the appellant (leaving Uba Flor) with sufficient clarity; upheld the review decision on the issue whether the appellant had acted in ignorance of a relevant fact for the purposes of section 191(2); and accordingly found that it was unnecessary to determine the issue of good faith under section 191(2), since (as was and is common ground) that would only need to be determined if the appellant had acted in ignorance of a relevant fact. On the issue of good faith, the judge said, "It is not easy to ascertain from the review decision what the review officer had in mind when saying [the appellant did not act in good faith], since he did not spell it out in paragraph 64 of the decision" ([69]).
15. On the appeal to the county court, the appellant's case on ignorance of a relevant fact seems perhaps to have been put in two somewhat different ways. The principal way in which her case was put was that at the time of leaving Uba Flor she did not know that her sister would be evicted from her accommodation when she was, i.e. it was put as ignorance of something which would happen in future: see [49]. The decision of this court in Najim v London Borough of Enfield [2015] EWCA Civ 319; [2015] HLR 19, was against that submission, since at [32]-[34] Longmore LJ emphasised that section 191(2) is directed to ignorance of a fact which exists at the time of the deliberate act or omission of the applicant for social housing, and does not cover mistakes about future events which may or may not occur. The other members of the court agreed with him. As Longmore LJ said at [34], in commenting on the decision of this court in O'Connor v Kensington RLBC [2004] EWCA Civ 394; [2004] HLR 37, the relevant mistaken belief of the applicant does not have to be reasonable; it is sufficient if it is a genuine belief, "[b]ut the belief has to be a belief in an existing fact, not a misplaced belief in the likelihood of the happening or otherwise of a future event".
16. The appellant submitted that Najim conflicted with other previous authority of this court on this question and had been decided per incuriam. The judge rejected this submission and held that Najim was on point and was binding on him: [58]-[60].
17. But the judge also mentioned at [51] that it was said for the appellant that "she did not realise her sister's accommodation was not going to be secure", and Mr Vanhegan for the appellant told us that this way of putting her case was meant to refer to the appellant's ignorance of a fact in existence when she left Uba Flor, namely that she did not realise that her sister could be evicted from her accommodation. In other words, when the appellant left Uba Flor she was unaware of a relevant fact then in existence, in that she did not know that there was any prospect (judged at the time the appellant left Uba Flor) of her sister being evicted from her accommodation in London.
18. I am not convinced that this second way of putting the case was presented to the judge as a submission distinct from the first way in which the case was put. It is noticeable that in the grounds of appeal to this court, the ground of appeal on the issue of ignorance of a relevant fact is put in the same terms as the first way in which the argument was put to the judge below. However, as Ms Davies for the Council was in a position to respond to both arguments we permitted Mr Vanhegan to develop them both on the appeal to this court.
19. There are two grounds of appeal for consideration by this court: (1) in relation to the issue whether the appellant was unaware of any relevant fact when she left Uba Flor (which we permitted to be developed as a ground of appeal with two distinct limbs, as I have explained); and (2) in relation to the issue of good faith. Under this latter ground of appeal, Mr Vanhegan submitted that the appellant had acted in good faith when she left Uba Flor because she did not come to the United Kingdom expecting or wishing to apply for social housing, but was motivated by a desire to seek good medical treatment for her daughter. It is common ground that the appellant needs to succeed on both her grounds of appeal if she is to be able to reverse the decision of the reviewing officer which is under appeal.

Discussion

Ground (1): "unaware of any relevant fact"

20. In my judgment, the appeal should be dismissed in relation to both limbs of this ground of appeal. So far as concerns the submission that this phrase in section 191(2) covers a mistake about how future events transpire – the way (or the principal way) the appellant's case was put to the judge below - I cannot accept it. The decision of this court in Najim was not decided per incuriam and is binding on us, as it was on the judge. In any event, I agree with Longmore LJ's analysis of the operation of section 191(2) in Najim.
21. This court in Najim reviewed previous authorities in relation to section 191 - Ugiagbe v Southwark London Borough Council [2009] EWCA Civ 31; [2009] PTSR 1465 and O'Connor – which themselves referred to other relevant authority. In particular, in Ugiagbe this court referred in detail to a wide range of previous authority, including in particular F v Birmingham City Council [2006] EWCA Civ 1427; [2007] HLR 275, at [17], where May LJ reviewed previous decisions:

"17. In conducting a review under section 202 of the 1996 Act, a local housing authority is obliged to consider the effect of section 191(2), even if they have not been specifically invited to do so (O'Connor paragraphs 35, 40, 54), if it is sensibly capable of arising on the facts (Aw-Aden [v Birmingham City Council [2005] EWCA Civ 1834], paragraphs 10-12). An applicant's appreciation of the prospects of future housing can be treated as "awareness of a relevant fact" for the purposes of the sub-section, provided that it is sufficiently specific and provided that it is based on some genuine investigation and not mere aspiration ([R v Westminster City Council, ex p. Obeid [1996] 29 HLR 389] at page 398; Aw-Aden paragraphs 10, 11). If it is established that the applicant was unaware of a relevant fact, the question is not whether the ignorance was reasonable but whether it was in good faith. The statutory dividing line comes not at the point where the applicant's ignorance of a relevant fact was due to his own unreasonable conduct but at the point where, for example, by shutting his eyes to the obvious he can be said not to have acted in good faith. Wilful ignorance, at least, must fail the good faith test (O'Connor paragraphs 34, 30). If the prospect of future housing rests on little more than a wing and a prayer, it cannot be said that an original decision maker or a review panel falls into legal error by failing to invoke section 191(2) in favour of the applicant (Aw-Aden paragraph 11). In such a case, section 191(2) is a non-starter and no specific reference to it is needed (Aw-Aden paragraph 12)."

22. The decision in Najim cannot be described as per incuriam. The judge below was right to reject this submission. The authorities referred to in Najim sufficiently and correctly identified the proper approach to the interpretation and application of the phrase, "unaware of any relevant fact" in section 191(2). This court did not overlook other authorities binding upon it which showed that the statement of principle by Longmore LJ was wrong.
23. On the contrary, the further authorities to which Mr Vanhegan took us which dealt with section 191(2) and its predecessor provisions (section 17(3) of the Housing (Homeless Persons) Act 1977 and section 60(3) of the Housing Act 1985) show, in my view, that Longmore LJ was correct in his statement of principle in Najim at [32]-[34]. They all indicate that when an expectation regarding what might happen in the future is falsified, what the court has to look for when assessing whether the applicant was "unaware of any relevant fact" is an active and informed understanding of the applicant, at the time she does or omits to do something within the scope of section 191(1), of the current prospects in relation to that expectation working out as anticipated, where in fact (as judged objectively at that time) there was no good foundation for the applicant's assessment of those prospects.
24. The authorities to which we were taken on the question of the application of section 191(2), where future events do not transpire as the applicant expected they would, are all put in terms of unawareness at the time of the relevant act or omission of the real prospects judged as at that time of events turning out that way. That was the substance of the submission for the applicant in R v London Borough of Wandsworth, ex p. Rose (1983) 11 HLR 105, at 112-113, as accepted by Glidewell J (applicant leaving accommodation to stay with father, unaware of restrictions on the size of his accommodation which meant he would be unlikely to accommodate her for a significant period). It was also the way in which Roch J addressed the issue in R v London Borough of Hammersmith & Fulham, ex p. Lusi (1991) 23 HLR 260, 269 (applicant leaving accommodation on the basis of prospects of employment or of a business opportunity which causes him to believe he will be able to afford suitable replacement accommodation). The same approach was adopted by this court in R v Exeter City Council, ex p. Tranckle (1993) 26 HLR 244: the applicants left their accommodation to move into a public house which they were to run as a business, being unaware of a relevant fact, "Namely, the poor prospects of this public house being such a commercial success as to enable [the applicants] to discharge their financial liabilities" (pp. 247-248).
25. The proper approach to be derived from such authorities, and Tranckle in particular, was summarised by Carnwath J (as he then was) in an influential passage in the Obeid case at (1996) 29 HLR 389, 398: "The effect of those judgments, as I understand them, is that an applicant's appreciation of the prospects of future housing or future employment can be treated as 'awareness of a relevant fact' for the purposes of the subsection, provided it is sufficiently specific (that is, related to specific employment or specific housing opportunities) and provided it is based on some genuine investigation and not mere 'aspiration'". This statement of the relevant principle has been authoritatively endorsed more than once by this court: see Aw-Aden, F v Birmingham and Ugiagbe (see above).
26. Accordingly, an applicant who seeks to bring herself within section 191(2) where the future has not worked out as expected by her, has to show that at the time of her action or omission to act referred to in section 191(1), she had an active belief that a specific state of affairs would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration. Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of section 191(2).
27. In Tranckle, the applicants had made a genuine investigation before they left their existing accommodation which, by reason of the absence of the business records, had not revealed the parlous prospects of the public house. In Obeid, by the time the applicant left her existing accommodation she had made some inquiries (but also had not pursued other lines of investigation open to her) about whether she would have sufficient housing benefit to cover her rent at the accommodation to which she was moving. Carnwath J quashed the housing authority's decision because it had not considered the question whether her inquiries were sufficient to amount to a genuine inquiry such as to take her out of the mere aspiration category (p. 399). In Aw-Aden, on the other hand, the applicant gave up his accommodation in Belgium to come to look for work in the United Kingdom with the hope of obtaining a job in the United Kingdom but without any specific prospect of doing so, and hence could not bring himself within section 191(2): "… his prospects of obtaining suitable employment here when the Belgian accommodation was given up rested on little more than a wing and prayer" ([11], per Maurice Kay LJ, with whom the other members of the court agreed).
28. In view of the submission that Najim was decided per incuriam on this point, I would add that in my opinion the language of section 191(2) points clearly to the conclusion that Longmore LJ's statement of the law in that case is correct. The subsection is clearly directed to a point in time when the act or omission referred to in section 191(1) occurs, and it is at that time that the "relevant fact" has to exist and that the applicant has to be unaware of it. It is only by treating as a "relevant fact" the current prospects of an expectation as to the future materialising, based on current objective facts, that the analysis in the authorities can be fitted within the scheme of section 191.
29. Turning to the alternative limb of Mr Vanhegan's submissions under ground (1), focused on the prospects which the appellant had of accommodation in the United Kingdom at the time she left Uba Flor, I would dismiss the appeal on that limb of ground (1) as well. The assessment of the facts was for the reviewing officer, based on the evidence available to him. In my view, on the facts as found by him, he was clearly entitled to decide that the appellant had not made a proper investigation of her prospects of accommodation in the United Kingdom at the time she left Uba Flor. Therefore, her case did not fall within the scope of section 191(2). Analytically, the appellant's case was equivalent to Aw-Aden, as the reviewing officer correctly recognised. The reviewing officer's reference at para. 47 of the decision to the appellant's having left Uba Flor "on a 'wing and a prayer' …" was plainly drawn from the judgment of Maurice Kay LJ in that case.

Ground (2): "in good faith"

30. Since I understand we are agreed that we should dismiss the appeal on ground (1), it is not strictly necessary to deal with ground (2). However, we heard the argument about it and I think we should address it to provide guidance in other cases.
31. Mr Vanhegan submitted that if the appellant succeeded on ground (1), it was plain on the facts that the appellant had acted in good faith for the purposes of section 191(2), because when she left Uba Flor she did not intend to apply for social housing in the United Kingdom and had a good reason for leaving to come here, in that she wished to secure medical treatment for her daughter. Alternatively, if this court could not be confident about reaching a conclusion regarding her good faith, the appeal should be allowed and the case remitted to the court below to give the matter further consideration.
32. Ms Davies submitted that the understandable desire of the appellant to leave Uba Flor to seek medical treatment for her daughter did not show that she had acted in good faith for the purpose of section 191(2), but nonetheless accepted that if the Council lost on ground (1), the case should be remitted to the court below for reconsideration of the question of good faith. This was on the footing that the judge had said that the reviewing officer had not given a sufficient explanation in para. 64 of the decision for his conclusion on absence of good faith.
33. In my judgment, contrary to the submission of Mr Vanhegan, the question of good faith for the purposes of section 191(2) has to be judged within the scheme of the 1996 Act and by reference to the matters which the Act regulates. As Lloyd LJ said in Ugiagbe at [27], in a judgment with which the other members of the court agreed:

"[Subsection 191(2)] provides relief against the otherwise potentially harsh consequences of subsection (1), as Sedley LJ said in O'Connor's case [2004] HLR 601, for those who act in relevant ignorance, but subject to the safeguard of the requirement of good faith. It seems to me that the use of the phrase 'good faith' carries a connotation of some kind of impropriety, or some element of misuse or abuse of the legislation. It is aimed at protecting local housing authorities from finding that they owe the full duty under Part 7 of the 1996 Act to a person who, despite some relevant ignorance, ought to be regarded as intentionally homeless. Its statutory purpose is analogous to that of subsection (3). Dishonesty is the most obvious kind of conduct which it would catch, and wilful blindness in the Nelsonian sense comes close to that. The conduct of Mr Beattie, which was considered by Webster J to amount to a device [see R v Eastleigh Borough Council, ex p. Beattie (No. 2) (1984) 17 HLR 168], is fairly seen as in the same category."

34. Accordingly, what is relevant is good faith by the applicant in relation to her housing position and requirements for accommodation. Good faith in this context does not turn on whether the applicant acted (or omitted to act) with a laudable or understandable motive, judged by reference to wider social or personal concerns which have nothing to do with her housing requirements. In this case, the appellant's laudable motive in wishing to obtain good medical treatment for her daughter does not mean that she acted in good faith for the purposes of section 191(2) when she left Uba Flor.
35. It is clearly relevant to the question of good faith that the appellant did not cynically leave Uba Flor with knowledge that she would be homeless in the United Kingdom and intending to make a call on the limited social housing resources here. However, in my view, if she left with reckless disregard of what her housing prospects would be in the United Kingdom, or shutting her eyes to how she would in practice meet the obvious need for accommodation when she came here (as it was put in O'Connor at [34], and see F v Birmingham City Council at [17], set out above), that would not have been an act in good faith for the purposes of section 191(2). Despite the reservations of the judge, I think that it is tolerably clear that this was the point being made by the reviewing officer in para. 64 of the decision. I also think that this was a lawful conclusion for him to arrive at.
36. However, in a case involving current prospects of future events such as is under consideration on this appeal, I consider that the test adopted in Aw-Aden, F v Birmingham City Council and the other authorities referred to above in relation to what counts as unawareness of any relevant fact is very likely in practice to subsume the question of good faith in section 191(2). A person who can satisfy that test will almost invariably have acted in good faith in relation to sorting out their housing needs.

Conclusion

37. For the reasons I have given, I would dismiss the appeal.

Lord Justice Irwin:

38. I agree. I too would dismiss the appeal.

Lord Justice Moylan:

39. I also agree.