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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Haile v London Borough of Waltham Forest (Rev 1) [2015] UKSC 34 (20 May 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/34.html Cite as: [2015] 2 WLR 1441, [2015] AC 1471, [2015] 1 AC 1471, [2015] PTSR 784, [2015] HLR 24, [2015] UKSC 34, [2015] WLR(D) 234, [2016] 1 All ER 579 |
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Easter Term
[2015] UKSC 34
On appeal from: [2014] EWCA Civ 792
JUDGMENT
Haile
(Appellant) v London Borough of
Waltham
Forest (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
20 May 2015
Heard on 29 January 2015
Appellant Kerry Bretherton Laura Tweedy (Instructed by Hackney Community Law Centre) |
Respondent Andrew Arden QC Robert Brown (Instructed by London Borough of ![]() |
LORD REED: (with whom Lord Neuberger, Lady Hale and Lord Clarke agree)
The homelessness legislation and its construction
The 1996 Act
"This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally."
In terms of that provision, the authority have to be satisfied of three matters: that the applicant is homeless, that he is eligible for assistance, and that he has a priority need. They must also be "not satisfied" of one further matter: that the applicant became homeless intentionally.
"(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 residence 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.
(2) A person is also homeless if he has accommodation but -
(a) he cannot secure entry to it, or
(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.
(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.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days."
As I have explained, "continue to occupy", in section 175(3), means "continue to occupy for as long as he would have to occupy it if the local authority did not intervene": Birmingham City Council v Ali.
"(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.
(3) A person shall be treated as becoming homeless intentionally if -
(a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and
(b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part,
and there is no other good reason why he is homeless."
Dyson v Kerrier District Council
"This subsection is dealing with cause and effect. The subsection states the effect first. The specified effect is the state of being homeless. The subsection specifies that effect and then describes a particular cause which, if it exists, requires the effect to be treated as intentional. The subsection therefore means
'a person becomes homeless intentionally if he deliberately has done or failed to do anything in consequence of which he has ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.'" (original emphasis)
"This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that [he is homeless because] he became homeless intentionally."
"The district council were entitled to reach the conclusion that the plaintiff became homeless on May 25, 1979 [the date of her eviction], intentionally because she deliberately had done something (surrendered the Huntingdon tenancy) in consequence of which she ceased to occupy accommodation (the Huntingdon flat) which was available for her occupation and which it would have been reasonable for her to continue to occupy; and that, therefore, if she had not done that deliberate act she would not have become homeless on May 25."
It is to be noted that the court applied a "but for" test of causation: "if she had not done that deliberate act she would not have become homeless".
Din v Wandsworth London Borough Council
"If one takes the words of the statute, the council has to be satisfied that the applicants became homeless intentionally (section 17). Under section 4(2)(b) their duty is limited to advice and assistance if 'they are satisfied ... that [they] became homeless ... intentionally.' The time factors here are clearly indicated: at the time of decision (the present), the local authority must look at the time (the past) when the applicants became homeless, and consider whether their action then was intentional in the statutory sense. If this was the right approach there could only be one answer: when the Dins left 56, Trinity Road [the Wandsworth accommodation] their action was intentional within section 17, and the council was entitled to find that it would have been reasonable for them to continue to occupy 56, Trinity Road." (pp 666-667: original emphasis)
"To achieve the result desired by the appellants it is either necessary to distort the meaning of 'in consequence of which he ceases to occupy' (section 17(1)) or to read in a number of words. These are difficult to devise. Donaldson LJ suggests adding at the end of section 17(1) 'and still to occupy': the appellants, as an alternative 'to the date of his application'. Both are radical - and awkward - reconstructions of the section."
The second reason was that such an interpretation of the words "continue to occupy" was not called for by any purposive approach. The third reason was the following:
"The appellants' interpretation adds greatly to the difficulties of the local authority's task in administering this Act. It requires the authority, as well as investigating the original and actual cause of homelessness, to inquire into hypotheses - what would have happened if the appellants had not moved, hypotheses involving uncertain attitudes of landlords, rating authorities, the applicants themselves, and even intervening physical events."
"Be it so. The fact remains that the appellant's homelessness in December 1979 was a consequence of his deliberate act of moving out on August 28. I accept that for section 17(1) to be applicable there must be a continuing causal connection between the deliberate act in consequence of which homelessness resulted and the homelessness existing at the date of the inquiry. Such a causal connection exists in this case, and that being so it is immaterial to inquire whether he might in other circumstances have been homeless then for other reasons." (emphasis supplied)
"It is ... irrelevant for an applicant who is homeless at the date of his application, and who became homeless intentionally, to show that he would have been homeless by that date in any event. The material question is why he became homeless, not why he is homeless at the date of the inquiry. If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant."(p 671)
This passage envisages a state of homelessness continuing between the time when the applicant became homeless intentionally and the date of the inquiry. In order for the passage to be read consistently with the passage cited previously, it must also envisage a situation where nothing has occurred to break the continuing causal connection between the initial cause of homelessness and the homelessness existing at the date of the inquiry. Granted those premises, what is said is uncontroversial.
"If in the past he has become homeless intentionally and but for that he would not now be homeless (as in the Dyson case [1980] 1 WLR 1205) well and good: that is why he is homeless now. But if on the facts as established in the present case he would be homeless now in any event, the past circumstances in which the homelessness originated appear to me to be no longer of any relevance: the past actions of the applicant are spent." (pp 673-674)
"Thus, on the true construction of sections 3 and 4 and in the application of section 17(1), the third question the housing authority must ask and answer may be expanded into the following form: 'Is the applicant's present homelessness the result of a deliberate act or omission on his part in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy?'" (p 681)
As Lord Bridge explained, this construction does not require any words to be read into the legislation:
"Section 17 is simply concerned to define what is meant by becoming homeless intentionally. But in construing the phrases 'whether he became homeless intentionally' and 'that he became homeless intentionally' in the context in which they are found in sections 3 and 4, it would be absurd to hold that the housing authority are at liberty to rely on any past act or omission on the part of the applicant which satisfies the section 17 formula but which is not causally related to the applicant's present state of homelessness." (p 681)
Later authorities on causation
"In some cases, the cause closest in point of time will be regarded as the effective cause. A good example of this might well be the case discussed in Ex p Fahia (1996) 29 HLR 94, 102, of the premises occupied on a short letting which are burnt down, thereby rendering the occupant homeless."
In the particular circumstances of the case, the authority had been entitled, in the judge's view, to decide that the effective cause of the applicant's homelessness was her action in leaving Nigeria.
Conclusions
The present case
LORD NEUBERGER:
"My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it."
"[W]here Parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re-enacted provision to bear the meaning that case law had already established: Barras v Aberdeen Sea Trawling and Fishing Co Ltd [1933] AC 402, Viscount Buckmaster at pp 411-412."
Lord Carnwath seems to have taken the same view at paras 83-88 and 95-97, and Lady Hale referred to Barras without disapproval at para 167, although I was somewhat less enthusiastic about it – see at paras 143-148. As Mr Arden pointed out, the principle is also supported by Lord Lloyd speaking for the judicial committee in Lowsley v Forbes [1999] 1 AC 329, 340F-G.
LORD CARNWATH: (dissenting)
"… in deciding whether the (applicants) became homeless intentionally, the housing authority had to look to the time of their action in leaving the accommodation they occupied and a subsequent hypothetical cause of homelessness did not supersede the actual cause represented by their action"
"The time factors here are clearly indicated: at the time of decision (the present), the local authority must look at the time (the past) when the applicants became homeless, and consider whether their action then was intentional in the statutory sense …." (p 666H; see also p 671E per Lord Fraser, to like effect)
"… it is ... irrelevant for an applicant who is homeless at the date of his application, and who became homeless intentionally, to show that he would have been homeless by that date in any event. The material question is why he became homeless, not why he is homeless at the date of the inquiry. If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant." (p 671G)
The same approach was reflected in Lord Wilberforce's concern that the alternative would pose problems for authorities, who would be required –
"… as well as investigating the original and actual cause of homelessness, to inquire into hypotheses - what would have happened if the appellants had not moved …" (p 667F)
It was reflected also in the way in which Lord Lowry, having accepted that the "act of becoming intentionally homeless" must be causally linked to the homelessness at the time of the application to the authority, characterised the appellants' argument, which he rejected –
"Their argument necessarily disregards this aspect of causation and concentrates on something else: what would have been the position if the deliberate act which caused the relevant homelessness had not occurred. They then say that the real cause of their homelessness is not the act which caused it but something which did not cause it, namely the fact that they would have been homeless unintentionally by December if they had not already become homeless intentionally in August." (p 676D-E)
The contrary approach of the minority was put succinctly by Lord Russell:
"… if on the facts as established in the present case he would be homeless now in any event, the past circumstances in which the homelessness originated appear to me to be no longer of any relevance: the past actions of the applicant are spent." (p 674A).
"There (as here) the applicant intentionally surrendered available accommodation in order to go to precarious accommodation (a "winter letting") from which she was ejected and so became homeless. It was held (in my opinion, rightly) that she had become homeless in consequence of her intentional surrender. This does not in any way support an argument that a subsequent hypothetical cause should be considered to supersede an earlier actual cause. It merely decides that a disqualification for priority by reason of an intentional surrender is not displaced by obtaining temporary accommodation. As pointed out by Ackner LJ in the Court of Appeal, it can be displaced by obtaining 'settled' accommodation."
Lord Fraser agreed because on the facts of that case "the original cause of her homelessness was still in operation" at and after the time when she had to leave the winter let. Lord Lowry alone expressed doubts about the correctness of the reasoning in Dyson. He said:
"It could well be that the plaintiff, having become homeless intentionally when she left the Huntingdon flat, was continuously homeless during the temporary winter letting and therefore rightly lost her priority. That is a result which I would understand and accept. But that was not the basis of decision in Dyson …."
"The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere. 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."
He rejected Lord Lowry's suggestion that Mrs Dyson had become homeless when she left the settled accommodation and remained so during the temporary let:
"… of course Dyson's case implies no such thing. It decides only that her homelessness after eviction from the cottage in Cornwall is intentional because it was caused by her decision to leave the flat in Huntingdon. Some support for a contrary view can be found in the speech of Lord Lowry in Din's case but this opinion was not shared by the other members of the House, who analysed the case solely in terms of causation. What persists until the causal link is broken is the intentionality, not the homelessness."
Nothing in Awua casts any doubt on the principle, established by the majority in Din, that the definition of intentional homelessness is not concerned with hypothetical causes.
i) The 1996 Act involved a major restructuring of the law, not simply a consolidation, so that previous case-law, though persuasive was no longer formally binding.
ii) More particularly, the review procedure, introduced by section 202 of the 1996 Act, provides for a full merits review of the application on the basis of the facts at the date of the review. The reviewing officer, in the words of Lord Slynn (Mohammed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 para 26) -
"… is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision."
iii) More recent cases have shown, as anticipated by Lord Hoffmann, that the causal link following an act of intentional homelessness may be broken by an occurrence other than the acquisition of settled accommodation, provided that it is unconnected with the temporary nature of the intervening accommodation, for example the breakdown of a marriage (R v Basingstoke and Deane Borough Council, Ex p Bassett (1983) 10 HLR 125), or a reduction in housing benefit (Ex p Fahia (1996) 29 HLR 94). The same thinking should apply to the birth of the child in the present case, which would have led to the loss of the accommodation in any event.