B5/2013/0345 
Neutral Citation Number: [2013] EWCA Civ 1865
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
Royal Courts of Justice 
Strand,London WC2A 2LL 

THURSDAY, 21st NOVEMBER 2013
 
B e f o r e: 
 
LORD JUSTICE MOSES 
LORD JUSTICE BEATSON
&
LORD JUSTICE BRIGGS 
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Between: 
HUZRAT 
Appellant

v 

THE LONDON BOROUGH OF HOUNSLOW 
Respondent 
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DAR Transcript of the Stenograph Notes of  
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Mr Vanttergan (instructed by Polpitiya & co) appeared on behalf of the Appellant
Mr D Broatch (instructed by the London Borough of Hounslow) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE MOSES:  When Mrs Huzrat claimed that she was homeless and eligible for assistance the London Borough of Hounslow was under a full duty to accommodate her, her three children and her husband pursuant to section 193(1) and (2) of the Housing Act 1996 if it was satisfied as to four facts.  It had to be satisfied that she was homeless within the meaning of section 175 of the 1996 Act, eligible for assistance ‑‑ that is someone not falling within the provisions of section 185 of the 1996 Act ‑‑ had a priority need, as identified in section 189(1) of the 1996 Act and was not satisfied that she had become homeless intentionally within the meaning of section 191.
2.	Hounslow was satisfied that she was homeless, was eligible for assistance and had a priority need.  But it was also satisfied that she had become homeless intentionally.  Accordingly, its duty was confined to that identified in section 190(2)(a) and (b); that is it was required to ensure that such accommodation was available for such a period as it considered would give her a reasonable opportunity of securing accommodation for her and her family's occupation, and secure that she was provided with advice and assistance in any attempts she might make to secure that accommodation became available for her and her family's occupation.
3.	Moreover, pending the inquiry into whether she was homeless and as to whether she was homeless intentionally or not, it exercised its powers under section 184 and once she appealed, under section 204(4) to provide temporary accommodation, where I understand she and her family remain.
4.	She was entitled to a review under section 202 of the Housing Act 1996 of the issue as to whether she had become homeless intentionally.  This appeal is concerned with the local housing authority's independent officer's conclusion on the review that she was homeless intentionally.  
5.	Mrs Huzrat says that in reaching that decision Hounslow failed to act in conformity with its duty under section 11 (2) of the Children's Act 2004.  It says that in considering the issue as to whether her homelessness was intentional or not it was required to make arrangements for ensuring (a) that its functions were discharged having regard to the need to safeguard and promote the welfare of children and (b) that any services provided by another person pursuant to arrangements made by the person or body in the discharge of its functions are provided having regard to that need.
6.	His Honour Judge McDowall at Willesden County Court on 18 January 2013 rejected that argument when considering her appeal, restricted as it was to a point of law.  Mrs Huzrat now appeals against that decision.  
7.	Mrs Huzrat is married.  She has two young children born in October 2008 and December 2009 and during the course of the relevant application a third child was born on 5 July 2011.  Back in October 2008 she and her family were in occupation of a property at 42 Northumberland Crescent in Middlesex.  It was within Hounslow's area.  They were tenants of a private landlord.  Rent was reduced to reflect Mrs Huzrat's housing benefit, but unfortunately arrears of rent began to accrue and she failed to pay rent in the month of March 2010.  Her housing benefit was reduced, leaving what the local housing authority believed to be a modest shortfall from November 2010.  The landlord commenced possession proceedings and she and her family were evicted from number 42 on 18 March 2011.  
8.	She applied for homeless assistance pursuant to Part VII of the 1996 Act on 14 March 2011.  As I have said, she was provided with temporary accommodation at 18 Percy Gardens in Isleworth and was interviewed in connection with her claim to eligibility for assistance under Part VII as being homeless and in priority need.  
9.	The local housing authority reached the decision, pursuant to section 184 of the 1996 Act, that despite the fact that she was eligible, had a local connection and was in priority need, she had become intentionally homeless from the property at which she was evicted at 42 Northumberland Crescent.  
10.	She requested a review, as she was entitled to do, on 22 December 2011.  In that request for a review she spoke as to how extremely stressed the family were at the thoughts of being homeless, how it affected her health and how it was extremely difficult to sleep during the night.  She pointed out that her landlord stated that there were no problems with the family and that they had fully met their financial obligations.  She went on: 
"Furthermore, I have three kids which further makes my situation extremely difficult as my main priority as a mother is to look after them."
11.	She then referred to the fact that her husband was self employed but did not receive enough income and she reiterated that she had paid the rent on time.
12.	The review was conducted and a decision reached on 24 February 2012.  The review considered the question as to whether the rent arrears arose because she had deliberately failed to make regular payment to reduce those arrears.
13.	The independent reviewing officer set out the housing background with reference to the amounts of the rent and the amounts of the benefit.  He concluded that the failure to pay the rent was deliberate.  He took the view that having regard to the income, the expenses and the benefits she received, she could have afforded to make up the shortfall as to the arrears and concluded:
"Your failure to pay your rent can fairly be described as a deliberate act in that you made a choice to spend your money on other things that were not essential, such as repaying a friend."
14.	That was a reference to the fact that Mrs Huzrat had said that she had received a loan to pay a deposit and had felt obliged to repay that loan to her friend and that that was one of the reasons why she had been unable to pay the rent.  The conclusion was that the omission to pay the rent was deliberate.
15.	The reviewing officer also considered the question of whether it was reasonable for the family to continue to occupy number 42; in short, whether they could afford to live there.  If in fact they could not afford to live there then the failure to pay the rent would not lead to the conclusion that they were intentionally homeless.  If, by reason of the financial circumstances, a family is unable to pay rent and on scrutiny that is the explanation for failure to pay rent and eviction, then the conclusion will be that it was not reasonable to continue to occupy those premises, and that the tennants were not intentionally homeless within the meaning of section 191.  That point is illustrated by the relevant Code of Guidance, paragraph 11.18:
"Where an applicant has lost his home because of rent or mortgage arrears resulting from significant financial difficulties and the applicant was genuinely unable to keep up the rent or mortgage payments even after claiming benefits and no further financial help was available then the homelessness will not be regarded as deliberate."
16.	The reviewing officer considered the income and expenditure from information provided by Mrs Huzrat.  He said at paragraph 31:
"You have suggested that you could not afford the shortfall of approximately £71.50 in rent every four weeks that occurred after October 2010.  Your case worker was satisfied that you could and this must be correct.  Based on all records of your income and your own statements of your expenditure this small shortfall was clearly and comfortably affordable.  Even by your own income expenditure statement, the income aspect of which now appears inaccurate, your expenditure could comfortably have been reduced by cutting out obvious non‑essential expenditure, such as £80 pocket money for children aged 1 and 2, and reducing expenditure on clothing from an excessive £50 to £30.  A more robust scrutiny of the necessity of your expenditure would also reveal that you could have significantly reduced your expenditure in a number of other ways to make your rent affordable.  Your decision to pay to a friend money that was provided to you from public finances specifically for your rent was also a non‑essential expense... in summary your actual income was sufficient to maintain your stated expenditure at the time and pay your rent and in addition you could have comfortably reduced your expenditure significantly."
17.	The conclusion, therefore, was that it was reasonable for them to continue to occupy the premises.
18.	It is of note that the review concluded with specific references to the children, referring the problems of what would happen following the conclusion that she was intentionally homeless to the Children's Family Social Services Department.  This was a reference to section 213A of the 1996 Act.  This section introduced by the Homelessness Act 2002 applies in relation to those under the age of 18 who may be homeless and may have become so intentionally.  Where the applicant consents, the essential facts may be referred to the social services department and the social services department may exercise their social services functions under the Children's Act 1989 to provide the local housing authority with such advice and assistance as is reasonable in the circumstances (see section 213A(5)).
19.	The decision the local housing authority and the reviewing officer had to make pursuant to section 191 of the 1996 Act were decisions as to those facts which would determine whether she was intentionally homeless or not.  The question of whether it was reasonable for her to continue to occupy number 42 was itself a factual question, although it required an exercise of judgment as to whether it was reasonable to continue to do so or not.
20.	Mr Vanttergan contends that in reaching a decision as to whether Mrs Huzrat could afford to pay the rent, the local and the reviewing officer failed to take into account the best interests of the three children as a primary consideration.  They were bound by section 11 of the Children's Act in exercising their housing functions to do so but they failed.  The source of that submission was the obligations identified by the Supreme Court in ZH(Tanzania) v SSHD [2011] 2 AC 166 in a case of deportation and H(H) v the Deputy Prosecutor of the Italian Republic [2013] 1 AC 338, a case of extradition as applied to the functions of public bodies such as planning authorities in, for example, Collins v Fylde Borough Council [2013] EWCA Civ 1193 or the police, as in Castle v the Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin).  In ZH Baroness Hale, in acknowledging the guidelines on determining the best interests of the child in the UNHCR distinguished between decisions which directly affected a child's up bringing and decisions which affected the child more indirectly: 
"Even if the latter, the best interests of the child must be a primary consideration."
21.	She cited the federal court of Australia in Wan v the Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133‑paragraph 32:
"The tribunal was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration or the cumulative effect of other considerations out weighed the consideration of the best interests of the children, understood as a primary consideration."
Baroness Hale continued: 
"This did not mean, as it would do in other contexts, that identifying their best interests would lead inexorably to a decision in conformity with these interests."
22.	She continued with that theme in her judgment in H(H), pointing out that where the decision affects the child more indirectly, such as a decision to separate one of the parents from the child by detention or deportation, the children's interests are a primary but not the paramount consideration; (see paragraph 11).  She again recognised that the best interests of a child might be outweighed by countervailing factors but they are of primary importance; (see paragraph 15).
23.	There can be no dispute but that the duty under section 11 of the Children's Act applies to the local housing authority.  That is acknowledged in the statutory guidance to which, by section 182(1), the local housing authority must have regard.  In that Guidance the principles are fully identified in the introductory paragraphs between paragraphs 8 and 15; safeguarding children is everyone's responsibility and each professional organisation should play their part in order to make the services they provide effective.  There must be a child‑centred approach. 
24.	When it comes to housing authorities, the Guidance acknowledges that:
"Housing and homelessness services in local authorities and others at the front line such as environmental health organisations are subject to the section 11 duties set out (previously).  Professionals working in these services may become aware of conditions that could have an adverse impact on the children... housing authorities also have an important role to play in safeguarding vulnerable young people."
25.	Towards the end of the Guidance there is a specific reference to section 113A of the 1996 Act, pursuant to which the Guidance points out housing authorities are required to refer to adult social care services homeless persons with dependent children who are ineligible for homelessness assistance or are intentionally homeless.
26.	In the exercise determining whether the statutory factual criteria for section 193 is satisfied there is simply no room for deployment of those principles.  The statutory questions are clear; was the action or omission in question deliberate?  The answer to that question cannot differ whether the local authority takes into account the duty under section 11 of the Children's Act or not.  The question whether the applicant ceases to occupy the premises in question or whether the premises were available for occupation similarly cannot turn on or have any relevance to the duty under section 11.  The answer will be the same whether one takes into account that duty or not.  
27.	Of course the local housing authority, as I have already recalled, must consider whether it was reasonable to continue to occupy the premises and it is accepted that in doing so they must consider the income and expenses of the claimant and whether she and the family could afford to continue to live there.  In such circumstances they must take into account the expense of looking after the children who live in the family.  But that is a question of the deployment of the budget; was anything left to pay the rent after looking after the children reasonably, as any mother would wish?  That has nothing whatever to do with the considerations to which Baroness Hale has drawn attention, or the duty under section 11 of the Children's Act.  It is absurd to think that the question of whether the claimant was spending too much pocket money on the children depended on considerations of what was in the best interests of the children as a primary consideration.  The local housing authority had, in fulfilment of its statutory duties of inquiry, to consider the expenditure taking into account the need to look after the children, as occurred in this case.  They considered the claim of Mrs Huzrat that she was not able to pay rent, having regard to the amount she said she paid for the children and rejected that claim.
28.	This case is miles away from the decision of this court in Pieretti v Enfield London Borough Council [2011] Public and Third Sector Reports 565 [2010] EWCA Civ 1104, which Mr Vanttergan suggested was analogous.  In that case the Court of Appeal held that in exercising its duties under Part VII, Enfield London Borough Council (the local housing authority) had carried out its duties of inquiry and review without due regard to the need to consider the disability of the claimants pursuant to section 49A of the Disability Discrimination Act 1995.
29.	It is said in the instant appeal that Hounslow failed to carry out it is duty of review with due regard to the best interests of the children as a primary consideration.  That submission on behalf of the appellants fails to acknowledge the issue in Pieretti.  That was quite different from the instant case.  In Pieretti the local housing authority had failed to take into account that the claimant's undoubted disabilities may have been the cause of why she had failed to pay the rent.  The disability was, as Wilson LJ pointed out, relevant to whether the claimant had acted deliberately within the meaning of section 191(1) of the 1996 Act and in particular as to whether the claimant had acted in good faith within the meaning of (2); (see paragraph 35).  
30.	It was, of course, relevant to the question of whether the non‑payment of rent was deliberate or not that the claimant and her wife were mentally and physically disabled because that may have explained why they had chosen not to pay rent.  Mr Vanttergan cannot find any analogy in the factual questions which Hounslow had to answer in this case.  None of the answers to the relevant factual questions allowed a consideration as to what was in the best interests of the three children as a primary consideration.
31.	From time to time the appellant's submissions got perilously close to a suggestion that the statutory provisions in section 190(2) might not apply once the best interests of the children were taken into account as a primary consideration.  But section 11 provides no warrant for rewriting the statute or the provisions of section 190(2) in a statute that itself requires consideration of the children under section 213A.
32.	In Castle v the Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin), Pitchford LJ was considering the powers of the police and remarked, having considered the principles in ZH, that whilst decisions affecting children must have regard to the need to safeguard them and to promote their welfare:
"This does not mean that the duties and functions of the police have been redefined by section 11 of the Children's Act 2004; see paragraph 51."
33.	In the field of planning and enforcement this court in Collins v the Secretary of State for Communities and Local Government and Fylde Borough Council [2013] EWCA Civ 1193 adopted with approval the propositions of Hickinbottom J in Stevens v The Secretary of State for Communities and local government [2013] EWHC 792 (Admin).  But even Hickinbottom J accepted that not all of the planning processes allowed of consideration of whether the public interest in ensuring planning controls outweighs the best interests of the children; see paragraph 10 principle (iv) (paragraph 69 in Stevens).  Mere invocation of those principles, would, say the court in Collins, have made no difference; (see paragraphs 41 and 42).  What these cases show is that not every decision made by a public authority or local authority will require or indeed permit a local authority to take into account the important principles of which Baroness Hale has reminded us.
34.	A decision such as that taken under section 191 requires only consideration of the factual criteria identified in that section.  Section 11 of the Children's Act cannot and does not purport to introduce fresh and unspecified criteria for determining whether someone is intentionally homeless.  I would dismiss this appeal. 
35.	LORD JUSTICE BRIGGS:  I agree with all that has fallen from my Lord, adopting the language of Hickinbottom J in Stevens v the Secretary of State for Communities and Local Government [2013] EWHC 792 Admin at 69 which were adopted by Richards LJ in this court in the case of Collins to which reference has been made.  
36.	In the housing context, given the nature of housing decisions by local authorities article 8 will often be applicable and where the article 8 rights affected are those of children they must be seen in the context of article 3 of the UN convention on the rights of the child.  That involves the requirement, as my Lord has stated, that those interests are a primary consideration.  But it is important that the precise statutory duty and context be identified because otherwise these very important principles will simply become a generalised mantra that are invoked in a situation in which they cannot have effective relevance.  I agree with my Lord that in this context, the context of determining whether a person is intentionally homeless, that is the position.
37.	I add one further comment.  To the extent that the best interests of the children must be considered, it is clear that as Mr Vanttergan stated the assessment of whether a decision maker has done this properly is a question of substance not of form.  But in focusing his examination of the decision and the review decision, in the absence of an express reference to the best interests of the children and the deployment of the structure set out by Hickinbottom J, Mr Vanttergan's submissions had a formalistic element to them.  Addressing substance does not require the incantation of a mantra.
38.	It seems very clear from an examination of the original decision dated 13 December 2011 and the review decision of February 2012 that those considering Mrs Huzrat's position knew all about the family situation, they knew about the financial consequences of the position of the children and they reached their decisions.  It is clear that there was a finding of fact that the reason that Mrs Huzrat had not kept up her rent was not because of the need to look after her young children but because she decided to repay a loan that a friend had made to her.  In those circumstances it is difficult to see how it is argued that the best interests the children could have affected the three criteria used in the statute to determine whether Mrs Huzrat was intentionally homeless, ie deliberate necessary; whether it was reasonable to continue to occupy the property and good faith.  
39.	I too would dismiss this appeal. 
40.	LORD JUSTICE BEATSON:  I agree with both judgments.  Thank you very much.