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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Godson v London Borough of Enfield [2019] EWCA Civ 486 (22 March 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/486.html Cite as: [2019] EWCA Civ 486 |
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ Roberts
E40CL0005
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE NEWEY
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GODSON |
Appellant |
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- and - |
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LONDON BOROUGH OF ENFIELD |
Respondent |
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Mr David Lintott (instructed by Legal Services, Enfield Council) for the Respondent
Hearing dates : 14 March 2019
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Crown Copyright ©
Lord Justice Lewison:
The issues
i) If a local housing authority purports to discharge its duty to a homeless person such as to terminate that duty, and the homeless person does not appeal against an unsuccessful review of that decision; is he entitled to challenge the lawfulness of that review decision on a subsequent application for assistance as a homeless person?
ii) If so, was the housing authority entitled to terminate its duty in the manner in which it purported to do?
iii) If the termination of the housing duty and the homeless person's consequent eviction was caused by the homeless person's refusal of an offer of temporary accommodation, is he thereby rendered intentionally homeless?
The facts
Statutory framework
"(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.
…
(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."
"(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they must secure that accommodation is available for the applicant's occupation."
"(1) 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.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section."
"(5) The local housing authority shall cease to be subject to the duty under this section if—
(a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant,
(b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and
(c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section."
"… becomes homeless intentionally from the accommodation made available for his occupation."
"A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation."
"(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."
"An applicant who is offered accommodation as mentioned in section 193(5), (7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer."
"There is no right to request a review of the decision reached on an earlier review."
The review decision under challenge
i) At the time when Mr Godson was offered accommodation at 28B Church Street, he was occupying 21c Bury Street.
ii) The accommodation at 21c Bury Street was suitable accommodation that was available to Mr Godson; and it was reasonable for him to continue to occupy that accommodation.
iii) His refusal of the offer of a tenancy at 28B Church Street was a deliberate act; and he was aware of the consequences of a refusal: namely that Enfield's duty under section 193 (2) would cease.
iv) Because of his refusal, Enfield's duty under that sub-section ceased, with the consequence that he lost the accommodation at 21c Bury Street, thereby becoming homeless.
v) His refusal of the offer of a tenancy of 28B Church Street was the operative cause of his homelessness.
vi) His subsequent stay at the Railway Inn was not settled accommodation, and therefore did not break the chain of causation.
Can Mr Godson challenge the reasoning of the first review decision?
"[32] Part 7 of the 1996 Act requires a housing authority to be the initial decision-maker on questions concerning a person's homeless status and housing rights, and it includes a tolerably clear appeals procedure, with relatively short and fairly strict time limits, for the benefit of a person dissatisfied with any decision of the authority. Where, as here, possession proceedings are brought by the authority, and the defence involves impugning a decision of the authority under Pt 7 of the 1996 Act, which could have been, but was not, appealed, and the time for appeal has long since expired, it appears to me to be wrong in principle that the court hearing the possession action should be able freely to reconsider, and if necessary to reverse, the authority's decision with regard to its duty.
[33] Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case s.193, without taking the concomitant burden, namely the procedure and time limits in ss.202–204."
Was the first review decision lawful?
"a place which can fairly be described as accommodation …and which it would be reasonable, having regard to the general housing conditions in the local housing authority's district, for the person in question to continue to occupy…. There is no additional requirement that it should be settled or permanent."
"An unintentionally homeless person, on the other hand, cannot be required to leave the accommodation provided under section [193 (2)] unless either he is provided with alternative accommodation or there is a reason why his consequent homelessness will not give rise to a further duty under section [193 (2)]. In this sense the duty to accommodate is indefinite, but it is not in my view legitimate to construe it as a duty to provide permanent accommodation."
"[Mr Godson] cannot be required to leave the accommodation provided under section [193 (2)] [i.e. 28c Bury Street] unless either he is provided with alternative accommodation [i.e. at 28B Church Street] or there is a reason why his consequent homelessness will not give rise to a further duty under section [193 (2)] [i.e. his refusal of the offer of a tenancy at 28B Church Street]."
"Once a duty arises, it continues until it ceases. It does not go into abeyance or become dormant. If the applicant is in temporary accommodation she can at any time be asked by the housing authority, in this case Brent, to move to other accommodation."
"The procedure may, as in this case, be prolonged but it was triggered … by the defendant local authority's finding under section 193(1). The duty thereupon is capable of persisting unless and until the local housing authority is no longer subject to it by reason of the provisions in section 193(5) and (6)."
"[39] No submissions were made to us on Ex p Awua… but it would appear to be the case from Ex p Awua that the duty owed to Mrs Muse was discharged in law on the provision of temporary accommodation, but arose again when Brent decided that it was not reasonable for Mrs Muse to continue to occupy 42 Press House. If, however, the duty accepted to her in 2002 had been never fully discharged in law … because only temporary accommodation was provided, it remained in being and became operative again at the latest when Brent decided that it was not reasonable for her to continue to occupy 42 Press House, as it did when Mr Rees accepted that she should be offered alternative accommodation. None of the specific events that under section 193 discharged the duty occurred. It is common ground that 42 Press House was not suitable for Mrs Muse and her family.
[40] On either basis Brent was obliged to, and did, offer alternative suitable accommodation. Brent complied with section 193(5). Accordingly, the offer was on terms that Brent's housing duty would be discharged if Mrs Muse declined to accept the alternative accommodation. If Miss Roberts's submission on section 193(5) were correct, there would be an extraordinary internal inconsistency in the position in law of somebody like Mrs Muse. That person would be in a position to say that she was homeless and that Brent owed her a full housing duty, but that she was not homeless at the point in time when she made an application for transfer. An interpretation of section 193 that does not produce this basic inconsistency is clearly preferable."
"Given that an authority can satisfy their "full" housing duty under section 193(2) by providing temporary accommodation (which must of course be followed by the provision of further accommodation, so long as the section 193(2) duty survives), these observations clearly do not only apply to section 188. They emphasise that accommodation which may be unreasonable for a person to occupy for a long period may be reasonable for him to occupy for a short period. Accordingly, there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long-term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty." (Emphasis added)
"This subject arose in the course of argument. A person who is accepted to be homeless at home may be offered alternative accommodation on a temporary basis: see Ex p Awua [1996] AC 55. He may, however, in practice prefer to stay where he is until some more permanent accommodation is available for him. I see no difficulty in law in an applicant, if he chooses, opting to stay where he is while the local authority seeks more permanent accommodation which it is reasonable for him to occupy, but as he would be giving up his statutory right to be accommodated in that temporary accommodation, and on general principle, he would have to give a fully-informed and free consent."
"Anyone may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour." (Emphasis added)
Was Mr Godson intentionally homeless?
Result
Lord Justice Newey: