England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COUNTY COURTS
HIS HONOUR JUDGE D MITCHELL
B40CL421

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2018

Lord Justice Kitchin:

1. This is an appeal by Ms Oduneye against the judgment of His Honour Judge Mitchell given on 12 July 2016 in the Central London County Court and his consequential order dated 18 July 2016 dismissing her appeal against the decision of the respondent, the London Borough of Brent ("the Council"), made pursuant to s.202 of the Housing Act 1996 ("the 1996 Act"). The Council found that Ms Oduneye was intentionally homeless as she had failed to respond to a request for further information which would have enabled her to continue to receive housing benefit in relation to her accommodation at flat B, 22 Dean Road, London NW2 ("the property") and failed to pay the shortfall between the rent and her housing benefit when it was in payment.
2. Ms Oduneye now appeals to this court with permission granted by Lady Justice Gloster on the papers by order dated 21 October 2017. Ms Oduneye has appeared upon this appeal in person. The Council has been represented by Ms Etiebet, as it was below.
3. There are two matters which I must mention at the outset. The first is that by letter dated 1 June 2018 Ms Oduneye made an application for an adjournment of the appeal hearing to give her time to seek legal representation. I dealt with that application on the papers by an order dated 5 June 2018. I refused it because it was apparent from Ms Oduneye's letter that she had only recently sought to secure legal representation despite having been given permission to appeal by Gloster LJ as long ago as 21 October 2017. Nevertheless, I directed that Ms Oduneye could renew her application for an adjournment before the full court at the hearing of the appeal on 14 June 2018, if she so wished. We asked her at the hearing whether she did wish to renew her application and she said she did not. We therefore proceeded to hear her appeal.
4. The second matter concerned an attempt by Ms Oduneye at the hearing of the appeal to introduce new evidence in the form of various documents. We refused to allow her to do so for two reasons: she was unable to provide any satisfactory reason as to why these documents had not been referred to at the hearing before Judge Mitchell; and we were not persuaded that the evidence was such that, if introduced, it would probably have an influence on the result of the appeal.
5. I turn now to the appeal itself and must begin by setting out the background in some detail for, as will become apparent, it is in large part determinative of the issues to which the appeal gives rise.
6. Ms Oduneye was granted a secure tenancy of the property on 22 November 1999. She lived there with her son. Unfortunately she did not meet her monthly rent obligations and by April 2010 had accrued arrears amounting to about £1,900.
7. From 2010 Ms Oduneye received means tested benefits in the form of Jobseeker's Allowance from the Department of Work and Pensions ("the DWP"). This made her eligible for housing benefit which was paid by the Council directly to her landlord. However, in January 2013 the Council received information indicating that Ms Oduneye had begun to run her own business as a self-employed person. The Council made enquiries of the DWP and in response received information that Ms Oduneye's entitlement to Jobseeker's Allowance ceased on 8 December 2012. The Council therefore contacted Ms Oduneye and told her that she needed to provide proof of her income and other financial information failing which her claim to housing benefit could be terminated.
8. The Council did not receive a response within the time it had specified and so a decision was taken to terminate Ms Oduneye's claim. She was sent a notification letter on 15 March 2013 confirming this decision and providing her with details of her right of appeal, to be exercised within one month. No such appeal was ever lodged. However, Ms Oduneye contacted her local Member of Parliament and thereafter correspondence passed between Ms Oduneye and Ms Teather (Ms Oduneye's local Member of Parliament), on the one hand, and the Council, on the other hand, until, in June 2013, the benefit department received a copy of Ms Oduneye's profit and loss account and a copy of a tax credit notification letter. An officer in the benefit department then wrote to Ms Oduneye inviting her to reapply for housing benefit and asking her to supply the necessary financial information in support of it.
9. It seems that Ms Oduneye did make a further claim and in September 2013 she visited the customer services centre of the Council. An assessment officer assessed her claim and awarded her housing benefit from 15 March to 16 December 2013 on the basis that this would give her an ample opportunity to provide the necessary evidence in support of it. The Council duly paid the housing benefit for this whole period directly to her landlord, as before.
10. In November 2013 an assessment officer wrote to Ms Oduneye alerting her to the changes to her entitlement which would be implemented from 16 December 2013 and giving her an opportunity to provide the up to date information which it needed. She did not do so and on 15 December 2013 the housing benefit department therefore suspended the payment of benefits.
11. In February 2014 the Council received a letter from Ms Teather regarding Ms Oduneye's entitlement to financial support and by letter dated 18 February 2014 the Council wrote to Ms Oduneye, once again inviting her to re-apply for housing benefit.
12. On 4 March 2014 Ms Oduneye attended her local benefits office to make a housing benefit application. She was advised she needed to supply a completed self-employment form and to provide proof of her capital, savings, income and rent. An appointment was made for 10 March 2014 to give her an opportunity to do so. Ms Oduneye did not attend that appointment but shortly afterwards the Council received some (but not all) of the information it had requested through the office of Ms Teather.
13. On 4 April 2014 the assessment officer wrote a follow-up letter requesting financial information not previously provided and written confirmation of how she was managing to live as a result of her self-employment. Ms Oduneye did not provide that information and so it was decided to close her claim as of 7 April 2014. A letter was issued to her informing her of this decision and advising her of her right to appeal within one calendar month. No appeal was lodged.
14. In September 2014 Ms Oduneye made various complaints regarding the handling of her housing benefit claim and she was told that, although she had not appealed against the decision of 7 April 2014 within the one calendar month allowed, the Council could consider a late request for permission to appeal up to 13 months from the date of the decision. No such request was at that time made.
15. Ms Oduneye therefore did not receive housing benefit payments from December 2013 and, by March 2015, she had accrued considerable arrears of rent. What was more, Ms Oduneye's landlord had called her many times, sent her numerous letters and visited the property with a view to resolving the issue of her arrears, all to no avail. As a result, the landlord decided to take action to have her evicted from the property, secured a possession order and applied for and was granted a warrant of execution. Ms Oduneye was evicted on 15 April 2015. On that same day she made an application to have the possession order set aside. That application came on for hearing on 27 April 2015 and was dismissed.
16. On 15 April 2015 Ms Oduneye also completed another application for housing benefit and provided bank statements, proof of her identity, tax credit notification letters and a request for her claim to be backdated. The claim was assessed on 22 April 2015 and backdated for six months to 20 October 2014, and so, on 29 April 2014, a payment of around £3,100 for the period 20 October 2014 to 5 April 2015 was credited to her landlord's bank account.
17. On 26 May 2015 Ms Oduneye visited the Council again in respect of the gap in her entitlements from December 2013 to October 2014 and a decision was made on that day to assess her claim for this period too. On 2 June 2015 a payment of around £5,400 for the period 16 December 2013 to 19 October 2014 was credited to her landlord's bank account.
18. On 8 June 2015 Ms Oduneye made a formal complaint against the Council. The complaint had four aspects but they all had at their heart the contention that, following her eviction, the Council made payments to her landlord of housing benefit for the period December 2013 to April 2015, and that these payments had very substantially reduced her arrears and should have been made a good deal earlier. Further, she continued, had the payments been made earlier she would never have been evicted.
19. The Council responded to the complaint by letter dated 6 July 2015 from Margaret Read, the director of customer services. This letter set out in considerable detail the history of Ms Oduneye's relationship with the Council and then addressed the circumstances in which the decisions to make the two back-payments of housing benefit had come to be made. So far as the first of those payments was concerned, Ms Read explained that the decision to make it was made in light of the steps being taken by Ms Oduneye's landlord to evict her from the property. However, Ms Read continued, in order for a claim such as that made by Ms Oduneye to succeed, a tenant had to show good cause, such as illness or incapacitation, for not having made it any earlier. The fact that Ms Oduneye was being evicted did not satisfy this good cause test.
20. Ms Read turned next to the second payment and explained that the decision to make it was based upon the assumptions that the assessment made in September 2013 was intended by the assessor to apply from that date for all time and that Ms Oduneye was earning nothing from her self-employment. In fact, however, the assessor had intended the payments should continue only until December 2013 and that at this point Ms Oduneye's entitlement should be reassessed on the basis of her actual earnings and the up to date financial information she provided. But Ms Oduneye did not supply the documents and other information necessary for such a reassessment and so her claim had been cancelled entirely properly in December 2013.
21. Ms Read concluded that the two payments had therefore been made by the Council in error and that they constituted overpayments. However, she continued, these payments had been caused by errors made by Council officers and that in these circumstances the Council would take no steps to recover them.
22. Ms Oduneye sought a review of that decision. The review was carried out by Ms Carolyn Downs, the chief executive of the Council, and she set out her conclusions in a letter dated 10 September 2015. She reiterated the circumstances in which the two back-payments had come to be made and endorsed the conclusion reached by Ms Read that they had been made in error. She also explained that the Council stopped paying Ms Oduneye's housing benefit because she failed to provide the information it had requested. In this connection Ms Downs pointed to two matters: first, the failure by Ms Oduneye to respond to the letter from the Council dated 4 April 2014 requesting further documents which led to the closing of her case on 7 April 2014; and secondly, the failure by Ms Oduneye to take any effective action in response to the correspondence from the Council in October 2014 which effectively invited her to ask for a reconsideration of her original claim. Ms Downs also recorded that in October 2014 Ms Oduneye was provided with a final opportunity to invite the Council to resolve in her favour any issues relating to her claim for housing benefit but that she failed to take the steps which were necessary for the Council to do so. Ms Downs also told Ms Oduneye that if she was dissatisfied with the outcome of the Council's investigation, she had the option of making a complaint to the Local Government Ombudsman. Ms Oduneye exercised that option. I will return to the findings of the Ombudsman a little later in this judgment, but first I must explain the steps taken by Ms Oduneye to secure assistance following her eviction in April 2015.
23. Following her eviction, Ms Oduneye made a further application to the Council for assistance on the basis that she was homeless. The Council carried out an enquiry under s.184 of the 1996 Act and by letter dated 6 July 2015 issued its decision. It concluded that Ms Oduneye was homeless, eligible for assistance and in priority need but that she had made herself intentionally homeless.
24. Ms Oduneye sought a review of that decision under s.202 of the 1996 Act. That review was carried out by Ms Brickwood, the Council's Housing Reviews and Appeals Manager. She issued her decision on 10 November 2015. She came to the conclusion that the Council's decision under s.184 of the 1996 Act was correct and that Ms Oduneye was indeed intentionally homeless. In reaching her decision she reviewed all of the correspondence and background circumstances. She found that Ms Oduneye deliberately failed to meet her rental liability for the property both because she failed to provide documents essential for the processing of her claim and because she failed to meet the shortfall between the housing benefit (when it was in payment) and the rent that was due; that she lost the accommodation as a direct result of failing to pay the rent that was due; that she ceased to occupy the property when she was evicted in April 2015; that the property would have been available for her to occupy had she paid the rent which was due; and that the rent was affordable and it was reasonable for her to have continued to occupy the property. Ms Brickwood concluded that there was a direct causal link between Ms Oduneye's failure to pay the rent that was due and her current predicament of homelessness, that in all these circumstances the Council did not have a legal obligation to provide her with suitable accommodation, and that she would have to find alternative accommodation for herself.
25. Ms Oduneye was now faced with adverse decisions by the Council in relation to her complaints and in relation to intentional homelessness, both of which had been confirmed on review. Ms Oduneye was satisfied with neither and, as I have explained, took her complaints to the Local Government Ombudsman. She also exercised her right of appeal to the County Court against the decision under s.202 of the 1996 Act. It is convenient to deal with these events in chronological order.
26. The Ombudsman, acting by an investigator, reviewed all of the information made available to her and made her own enquiries. She issued a final decision on 27 January 2016. In the course of setting out the background she noted that even after the back-payments of housing benefit the arrears stood at around £2,000. She found that even if the Council had made the back-payments sooner it was likely that the landlord would have proceeded with the eviction proceedings. She observed that she could not judge what benefits Ms Oduneye was entitled to but, subject to that, found that the Council had acted without fault in proceeding in the way that it did.
27. I come next to the appeal to the County Court. Such an appeal lies only on a point of law. The original grounds of appeal asserted that the reviewing officer had erred in law in the following four respects. First, she failed to make proper enquiries and to have proper regard to the fact that, after the eviction in April 2015, housing benefit payments of over £9000 were credited to Ms Oduneye's rent account. It was argued that this was entirely consistent with Ms Oduneye's case that the Council had the necessary information to process her claim at the material time but failed to do so; and further, housing benefit could only have been credited to Ms Oduneye's rent account in respect of past periods if the original decisions not to pay benefit had been revised on the grounds of official error, and that the reviewing officer ought so to have found.
28. Secondly, the landlord was granted outright possession based upon arrears of over £11,000 and it was simply not possible for the reviewing officer to say what a court would have done had £9,000 of the arrears been cleared at the time the matter came before it. Certainly it would have had an important influence on the outcome of the possession proceedings.
29. Thirdly, the decision of the reviewing officer was irrational. She fell into error in concluding that Ms Oduneye did not take reasonable steps to resolve the housing benefit issues she was facing. In particular, she failed to have any or any proper regard to the evidence that Ms Oduneye provided documents to the Council when requested but was unable to provide details of her profits and losses because her business had not yet started trading; that despite being provided with sufficient evidence to establish her claim, the Council refused or failed to process that claim; that given the intractable nature of her problems with the Council and the threat to her home, Ms Oduneye had to approach Ms Teather for assistance; and that housing benefit was credited to her rent account after her eviction based upon the information with which the Council had been supplied or which it already held.
30. Fourthly, the procedure adopted by the reviewing officer was in breach of the requirement of procedural fairness. In particular and following her eviction, Ms Oduneye was unable to produce relevant evidence she needed on the review because that evidence was secured in the property to which she no longer had access.
31. Finally and by late amendment, Ms Oduneye sought to argue that the reviewing officer's decision on intentionality contained inadequate reasons for her conclusion.
32. Both parties were represented by counsel at the hearing of the appeal. Mr Rudgate appeared on behalf of Ms Oduneye and Ms Etiebet appeared on behalf of the Council. The judge declined to allow Ms Oduneye to pursue her fifth ground of appeal on the basis that it had been raised far too late. As for the other grounds, the judge's reasoning is very concise and may be summarised as follows. In light of the history of the matter (which I have related), it could not possibly be said that the Council failed to make proper enquiries. To the contrary, the history showed that the Council did make proper enquiries and it took all relevant matters into account. Secondly, the reviewing officer was entitled to take into account both parts of the arrears, that is to say the part which was satisfied by the back-payments of over £9,000 and the part which remained after those payments had been made. Thirdly, there was nothing irrational about the reviewing officer's approach or the findings she made. She took into account all of the matters upon which Ms Oduneye relied. And fourthly, there was nothing unfair about the process adopted by the Council. Ms Oduneye was given ample opportunity to make representations in support of her review request and no reason had been given for her failure to approach her landlord for access to the property if she needed to recover documents to support her position.
33. Upon this appeal, Ms Oduneye has relied upon all the grounds of appeal and arguments that were developed on her behalf before the judge both in writing and in the course of oral submissions. She also points to the reasoning of Gloster LJ in giving her permission to appeal. Gloster LJ expressed concern that the judge had apparently failed to address what appeared to her to be a strong and, if correct, determinative argument, namely that the two back-payments of benefits amounting together to over £9,000 showed that the Council was in error in failing to make them sooner, and so it could not be said that Ms Oduneye was responsible for the accrual of the arrears. Further and importantly, it could not be said that Ms Oduneye's homelessness was intentional.
34. Ms Oduneye also contends that she was denied a fair hearing because the judge neither listened to nor took into account the arguments which her counsel sought to advance on her behalf.
35. I am not persuaded by any of these arguments. Having set out the history of the matter in some detail, I can deal with them, the concern expressed by Gloster LJ and the grounds of appeal quite shortly.
36. As for the first ground of appeal and the concern expressed by Gloster LJ, it is in my judgment clear that the arrears grew to in excess of £11,000 because throughout 2014 and until April 2015 Ms Oduneye failed to provide to the Council the information it needed to process her claim for housing benefit and because she did not pay the shortfall between her housing benefit and the rent she was obliged to pay. Further, it was entirely understandable that her landlord lost patience with her and began eviction proceedings. What was more, that failure took place against a background in which Ms Oduneye was given ample opportunity to put her claim to housing benefit in order but did not do so. In particular, she failed to attend the appointment arranged for 10 March 2014; failed to provide the information necessary to support her claim; failed to respond to the letter from the Council dated 4 April 2014; and failed to file a late appeal against the closure of her case despite being invited to do so by the letter from Ms Read dated 15 October 2015.
37. It is of course true to say that, by letters dated 22 April and 22 May 2015, Ms Oduneye was awarded back-payments of housing benefit amounting to, in total, in excess of £9,000 but as the Council subsequently made clear, these awards were later cancelled because they were made in error. I recognise that a decision was made not to reclaim these awards but in my view that is of no assistance to Ms Oduneye for two reasons: when she was evicted her arrears stood (and rightly stood) at in excess of £11,000; and, as the Ombudsman observed, had these awards been made earlier, the landlord would still have proceeded with the eviction proceedings.
38. In my judgment the second and third grounds of appeal add nothing of substance to the first. I accept that it is not possible to say what a court would have done had the back-payments of housing benefit been made when it came to consider the possession proceedings. But in my judgment, that is nothing to the point because those payments ought never to have been made. I also reject the submission that the decision of the reviewing officer was irrational in any way. Here Ms Oduneye's submissions are founded upon a series of propositions which are simply not tenable. The reviewing officer was plainly entitled to find as she did that Ms Oduneye accrued arrears because she failed to provide the documents essential to the processing of her benefit claim and because she failed to pay the shortfall between the rent and her housing benefit when it was in payment. These general but critical findings were then supported by a series of more specific findings which the reviewing officer proceeded to set out. I recognise that Ms Oduneye does not accept any of these findings but that does not render them irrational and in my view they were open to the reviewing officer on the evidence before her.
39. I also reject the fourth ground of appeal. The reviewing officer explained that Ms Oduneye had an amply sufficient opportunity to make representations in support of her review request but provided no explanation as to why she did not approach her landlord for access to the property if it contained evidence she needed or wished to deploy in support of the review.
40. It only remains to deal with the submission that Ms Oduneye was not given a fair hearing by the judge. I cannot accept this contention. Ms Oduneye was represented by counsel and there is nothing in the judgment or the post-judgment submissions to support the suggestion that the judge would not listen to the arguments he presented on her behalf or failed to read and understand the evidence. I accept that, at one point after judgment, the judge asked Ms Oduneye to "be quiet" but that was because she was interrupting the proceedings despite being represented by counsel.
41. Drawing the threads together, I am satisfied that the reviewing officer was entitled to find that the original decision was correct and that Ms Oduneye accrued rental arrears because she failed to provide the Council with the information it needed to process her housing benefit claim and because she failed to pay the shortfall between the rent and her housing benefit. The reviewing officer was also entitled to find that the property was affordable; that Ms Oduneye was intentionally homeless because she deliberately failed to pay the rent; that she lost the property as a direct result of her failure to pay the rent; that she ceased to occupy the property following her eviction; that the property was suitable for her occupation; and that it was reasonable for her to continue to occupy the property. The reviewing officer has made no error in the way she approached the issues before her.
42. For all of these reasons, I would dismiss this appeal.

Lord Justice Sales:

43. I agree.