United Kingdom House of Lords Decisions

Regina v London Borough of Harrow Ex Parte Fahia [1998] UKHL 29; [1998] 1 WLR 1396 (23rd July, 1998)

LORD BROWNE-WILKINSON

My Lords,

    This appeal again raises the problems which confront a local authority when dealing with the long term homeless. When a local authority has lawfully found an individual to be intentionally homeless, what are the statutory duties of that local authority when the same individual again applies to be housed as a homeless person?

    At all times relevant to this appeal, the statutory duties relating to homeless persons were contained in Part III of the Housing Act 1985. In outline the statutory scheme provides as follows. Under section 62(1) if an applicant applies to a local authority for accommodation and the authority has reason to believe that he may be "homeless or threatened with homelessness" they must make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness. Section 58(1) defines a person as being homeless if he has no "accommodation" and provides that a person is threatened with homelessness if it is likely that he will become homeless within 28 days.

    If, as a result of those inquiries under section 62(1) the local authority is satisfied that an applicant is homeless or threatened with homelessness, section 62(2) imposes further statutory duties of inquiry, viz., to satisfy themselves whether the applicant has a priority need and whether the applicant became homeless intentionally. Nothing turns on the requirement of priority need in this case: the applicant had dependent children and therefore has priority need. Intentional homelessness, however, is central to the case. Section 60(1) provides that 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."

    Whilst the local authority is conducting these inquiries it comes under an interim duty to provide accommodation to the applicant: section 63.

    Having completed their inquiries, the local authority is required to notify the applicant of their conclusions: section 64. So far as relevant to the present case, the local authority has to notify the applicant of their decision whether he is homeless; if so, whether he has a priority need and, if so, whether he became homeless intentionally. Having reached their conclusions on these matters the statutory duties imposed on the local authority depend upon the conclusions which they have reached. These statutory duties are laid down in section 65 of the Act. If the applicant is homeless, has a priority need and is not intentionally homeless, the local authority must secure that accommodation becomes available for his occupation: subsection (2). But if the local authority is satisfied that the applicant, despite having a priority need, became homeless intentionally the only duty imposed on the local authority is to provide accommodation "for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation" and provide him with advice: see subsection (3).

    In the present case, Mrs. Fahia and her six children were, on 29 March 1994, evicted from 51A Tudor Road, Harrow, which she had occupied pursuant to an assured shorthold tenancy. Her landlord had obtained a possession order. Upon her eviction, Mrs. Fahia applied to the London Borough of Harrow ("Harrow") for accommodation pursuant to Part III of the Act. Pending the determination of her application she was placed in temporary accommodation at the Hindes Guest House pursuant to section 63 of the Act. On 6 June 1994, Harrow notified the applicant of their decision that they were satisfied that she was homeless, was in priority need but was homeless intentionally ("the 1994 determination").

    In the light of that determination, Harrow's duty under section 65(3) was to secure that accommodation was made available to Mrs. Fahia for such period as would give her a reasonable opportunity of securing accommodation for her own occupation. It discharged its duty by continuing to pay for her accommodation at the guest house for a further 42 days, i.e. until 17 July 1994.

    On 17 July 1994, Mrs. Fahia did not vacate the guest house but remained there. The weekly rent payable for the accommodation she occupied was £514. Harrow continued to pay the weekly rent for a further period of a year, such payment being payment of housing benefit to Mrs. Fahia.

    On 14 July 1995 Harrow wrote to Mrs. Fahia informing her that, having compared the rent payable at the guest house with other rents, they had decided that the applicant's housing benefit should be reduced to £250 per week. On 9 August 1995 the proprietor of the guest house warned Mrs. Fahia that if she could not pay the standard charge for her accommodation, she would have to vacate her rooms.

    On 17 August 1995 a charity wrote to Harrow asking it to arrange accommodation for Mrs. Fahia and her family. On 21 August 1995 Harrow responded by saying that if Mrs. Fahia were to come to the Homeless Persons Unit there would be no duty on Harrow to assess any application made by her. The letter went on to explain:

 "This is because she has had no intervening settled accommodation to bring her original homelessness from 51A Tudor Road to an end. We would make an assessment of an application only if there had been a material change of circumstances or some new relevant fact has come to light since our decision of June 1994. As far as I am aware no such changes have taken place nor has there been any other new relevant facts coming to light."

    Following a visit by Mrs. Fahia to the Homelessness Officer, on 5 September 1995 Harrow wrote to her as follows:

 "Further to our meeting of 31 August 1995, I write to notify you of the decision reached by the Authority on your 'reapplication' for housing.

 "Having completed its non-statutory inquiries (that is inquiries undertaken other than under the Housing Act 1985) the Authority is satisfied that given the nature of your stay at Hindes Guest House this accommodation did not constitute settled intervening accommodation so as to break your original homelessness from 51A Tudor Road. Therefore the decision of 6 June 1994, that you are intentionally homeless, still stands and the Authority owes you no duty to provide you with accommodation."

    Mrs. Fahia then applied for judicial review of the decision of Harrow not to provide her with accommodation. The grounds for this application were:

(1) That Harrow's 1994 decision that she had become intentionally homeless on leaving 51A Tudor Road was erroneous. Both the trial judge, Mr. Roger Toulson Q.C. sitting as a deputy judge of the Queen's Bench Division, and the Court of Appeal (Leggatt, Roch and Aldous L.JJ.) held against Mrs. Fahia on this point: see 29 H.L.R. 94 and 974 respectively. This point was no longer persisted in before your Lordships.

(2) That the 1995 Determination was founded on an error of law, viz., that Mrs. Fahia could not cease to be intentionally homeless following the 1994 eviction unless she had at some time obtained "settled accommodation";

(3) That Harrow had acted improperly in rejecting Mrs. Fahia's application by conducting "a non-statutory inquiry" in reaching its conclusion that Mrs. Fahia was still intentionally homeless. It is Mrs. Fahia's contention that Harrow were bound to conduct the full statutory inquiries required by Part III of the Act which they, admittedly, had not done.

Both the trial judge and the Court of Appeal held in favour of Mrs. Fahia on these two latter points. Harrow pursue a further appeal before your Lordships.

Error of law

    It is common ground that Mrs. Fahia has not enjoyed settled accommodation since she left 51A Tudor Road. In particular it is agreed that she did not have settled accommodation at the guest house during the period starting on 17 July 1994. Her status during that period was as a licensee of the proprietor, "rent" being paid by way of housing benefit. The question is whether, in such circumstances, lack of any intervening settled accommodation necessarily leads to a finding that Mrs. Fahia would be intentionally homeless if she were now to be evicted from the guest house.

    In Dyson v. Kerrier District Council [1980] 1 W.L.R. 1205, Miss Dyson gave up secure accommodation in Huntingdon in order to move into accommodation in Cornwall which, as she knew, she could only have for a three-month winter let. When she was evicted from the Cornwall accommodation, she applied to be rehoused as a homeless person. The local authority said that she was intentionally homeless because she had given up her secure accommodation in Huntingdon. The Court of Appeal upheld this decision holding that there was a causal link between her deliberate decision to give up the settled accommodation in Huntingdon and her subsequent homelessness in Cornwall.

    The principle was taken further in Din (Taj) v. Wandsworth London Borough Council [1983] 1 AC 657. The facts of that case are not material, however there is a dictum of Ackner L.J. in the Court of Appeal (unreported), 23 June 1981; Court of Appeal (Civil Division) Transcript No. 372 of 1981 cited by the Court of Appeal in Lambert v. Ealing Borough Council [1982] 1 W.L.R. 550, 557 which has been very influential. Ackner L.J. was considering what constitutes a causal link between an earlier, intentional, homelessness and a subsequent homelessness sufficient to make the later homelessness intentional on the Dyson principle. He said that the earlier intentional homelessness was not displaced by obtaining temporary accommodation and continued:

 "To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as a 'settled residence' as opposed to what from the outset is known . . . to be only temporary accommodation. What amounts to a 'settled residence' is a question of fact and degree depending upon the circumstances of each individual case."

    Until a recent decision of your Lordships' House it was thought that only by satisfying that test laid down by Ackner L.J. could a person who had been originally intentionally homeless demonstrate that such intentional homelessness was not a cause of later homelessness: the chain of causation could only be broken by the person having, in the interim, obtained settled accommodation. That was plainly the approach adopted by the local authority in the present case who rejected Mrs. Fahia's application because, as the letters say, she had "no intervening settled accommodation to bring her original homelessness . . . to an end."

    In Reg. v. The London Borough of Brent, Ex parte Awua [1996] 1 A.C. 65 your Lordships had to consider the meaning of "accommodation" in Part III of the Act. Lord Hoffmann (with whom all the other Law Lords agreed) recognised that the obtaining of "settled accommodation" after an applicant had been found to be intentionally homeless was one way of demonstrating a break in the chain of causation between original intentional homelessness and later homelessness. At p. 69 he said this:

 "This jurisprudence is well-established (it was approved by this House in Din's case) and nothing I have said is intended to cast any doubt upon it, although I would wish to reserve the question of whether the occupation of a settled residence is the sole and exclusive method by which the causal link can be broken."

    The present position, therefore, is that although it is established that the obtaining of settled accommodation is sufficient to break the causal link between an earlier intentional homelessness and the immediate homelessness in question, there is a doubt whether that is the only way in which the causal link can be severed. For example, in Reg. v. Basingstoke and Deane Borough Council, Ex parte Bassett (1983) 10 H.L.R. 125 the applicant and her husband gave up secure accommodation to go and stay with her husband's relations. The marriage then broke down, she left the house of her husband's relations and became homeless. She had not had any intervening settled accommodation and the local authority considered that she was therefore intentionally homeless. Taylor J. (as he then was) rejected this submission. He said that the final homelessness resulted from the breakdown of the marriage not from the insecure nature of the accommodation.

    In the present case both the judge and the Court of Appeal held that the chain of causation could be broken in ways other than by obtaining intervening settled accommodation. Accordingly they held that the local authority had misdirected itself in looking only to the question whether Mrs. Fahia had obtained interim settled accommodation. Harrow petitioned for leave to appeal to resolve this doubtful point of law and leave, I assume, was given on that basis. But in fact Harrow, in its written case, conceded that the chain of causation could be broken by means other than the obtaining of intervening settled accommodation. Your Lordships are invited, despite this concession to decide the point. But I understand that all your Lordships share my view that, in the absence of argument to the contrary, it would not be right to do so. The point may be one of some importance to local authorities generally and your Lordships should decline to express any view, one way or the other, on the point. The appeal must go forward on the concession that the local authority could not determine Mrs. Fahia's rights simply by deciding that there had been no intervening settled accommodation.

Duty to inquire

    The problem is this. When a local authority, having discharged its statutory duties in relation to one application for accommodation, then receives a second application from the same applicant, is it bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a "threshold test" which the second application must satisfy if it is to be treated as an application under the Act? So, in the present case, Harrow having discharged its statutory duty in relation to Mrs. Fahia's application in 1994, could it decide as it purported to do that there was no fresh application before it in 1995 thereby avoiding the necessity to go through the full statutory inquiries required by section 62 and to provide interim accommodation under section 63?

    It is Harrow's case that a person making a second application must demonstrate a change of circumstances which might lead to the second application being successful and it is for the local authority to decide whether that test has been satisfied. So, it is said, in the present case Mrs. Fahia had not shown any new circumstance which could lead to the conclusion that she was not intentionally homeless and that accordingly Harrow could refuse to go through the whole process of making statutory inquiries again.

    I have sympathy with Harrow's case on this point but I am unable to extract from the statutory language any sufficient justification for the suggested short cut. Under section 62 the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) "the authority have reason to believe that he may be homeless or threatened with homelessness." It is established that requirement (a) is not satisfied if an application purports to be made by someone who lacks the capacity to do so: Reg. v. Tower Hamlets London Borough Council, Ex parte Begum [1993] A.C. 509. Moreover when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye v. Oswestry Borough Council The Times 29 July 1980. But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs. Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not treated as identical with the earlier 1994 application. She was relying on her eviction from the guest house which, for one year, she had been occupying as the direct licensee of the guest house proprietor, paying the rent for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied premises as licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all.

    In the circumstances, I agree with the judge and the Court of Appeal that there was no short cut available to Harrow by way of so-called "non-statutory" inquiries. It may well be that legislation is required to lay down a streamline procedure for processing second or later applications from the same applicant. But the wording of section 62 is too clear to allow the development of such a procedure by judicial decision.

    For these reasons I would dismiss the appeal.

LORD MUSTILL

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. I agree with it and for the reasons which he has given I would dismiss this appeal.

LORD NOLAN

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. I agree that the appeal should be dismissed for the reasons which he gives.

LORD CLYDE

My Lords,

    I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would dismiss this appeal.

LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. I agree with it and for the reasons which he has given I would dismiss this appeal. start rest here!