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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
____________________
GODSON | Appellant |
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| - and - |
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| LONDON BOROUGH OF ENFIELD |
Respondent |
____________________
Godson
the Appellant
Mr David Lintott (instructed by Legal Services, Enfield Council) for the Respondent
Hearing dates : 14 March 2019
____________________
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
Godson
applied to Enfield LBC for assistance with homelessness on 12 July 2012. Enfield provided him with emergency accommodation at 21c Bury Street on the same day, while it investigated his claim. Mr
Godson
was entitled to live there by virtue of a licence granted to him by Enfield. On 28 August 2012 it accepted that it owed Mr
Godson
the full housing duty described in section 193 of the Housing Act 1996. On 25 July 2013 Enfield made him an offer of a tenancy at 28B Church Street. He was told by Enfield that if he refused, the consequence would be that Enfield's housing duty under that section would cease. Despite that, Mr
Godson
refused the offer of the tenancy. As a result of that refusal, Enfield purported to terminate its duty to Mr
Godson
on 5 August 2013. Mr
Godson
sought a review of that decision. On 4 October 2013 the review decision confirmed the original decision. Mr
Godson
could have appealed to the county court against the review decision; but he did not. On 21 January 2014 Mr
Godson
and his family were evicted from 21c Bury Road.
Godson
found bed and breakfast accommodation for himself and his family at Railway Inn, which was also in the London Borough of Enfield. They continued to live in that accommodation until 2016 when he made another application to Enfield for assistance. Enfield originally took the view that the accommodation at Railway Inn was suitable, and therefore that Mr
Godson
was not homeless; but later accepted that it was not. So on 9 August 2016, Mr
Godson
was once again provided with emergency accommodation at 55B Friern Barnet Road, while Enfield investigated the merits of his claim.
Godson
was intentionally homeless. He requested a review of that decision. The review decision was issued on 29 November 2017 and upheld the original decision.
Godson
appealed against that decision to the county court. But on 13 July 2018 HHJ Roberts dismissed the appeal. This, therefore, is a second appeal. In an appeal of this nature our focus must be on the original decision: that is to say the review decision under challenge, rather than on the judge's reasons for dismissing the first appeal.
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."
Godson
the full housing duty under section 193 of the 1996 Act. It provided, so far as material:
"(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."
Godson
was intentionally homeless; but in 2017 they were. I will examine in due course the reasons for that change.
"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.
Godson
no duty at all. Enfield will still owe him a duty; but it will be the much more limited duty owed to a person who is intentionally homeless.
Can Mr
Godson
challenge the reasoning of the first review decision?
Godson
wishes to argue that the offer of a tenancy at 28B Church Road was an unlawful offer; with the consequence that his refusal of it could not have been a deliberate act which caused his homelessness; and therefore that Enfield's full housing duty is still operative. That argument is, in substance, a challenge to Enfield's first review decision of 4 October 2013, by which Enfield decided that its full housing duty had been discharged.
Godson
in this appeal. He could, of course, have appealed to the county court against the review decision of 4 October 2013. His ground of appeal would have been that the offer of a tenancy of 28B Church Road was unlawful; and that he was within his rights to refuse it. But he did not.
"[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."
Godson
to challenge the first review decision.
Godson
saw the force of this analysis; but argued that it did not apply in this case, because the lawfulness of the offer of the tenancy at 28B Church Street was not capable of being the subject of a review decision under section 202. I disagree. Enfield's decision was that it ceased to be under the duty contained in section 193 (2) in consequence of Mr
Godson's
refusal of the offer of the tenancy at 28B Church Road. That was a decision that no duty under that sub-section was owed to him. The decision therefore fell within section 202 (1) (b) which applies to a decision whether the authority owes any duty under section 193. If the offer of the tenancy had been unlawful, Enfield could not, in my judgment, have lawfully decided that its duty had come to an end. The lawfulness of the offer was a matter that could have been decided on the review and, if necessary, appealed to the county court.
Godson
on this appeal.
Was the first review decision lawful?
Godson,
I do not consider that it could succeed. The first step in Mr
Godson's
argument is that the duty to house him under section 188 ceased when Enfield accepted that he was not intentionally homeless and in priority need. At that point the duty under section 193 (2) took over. The duty arising under section 193 (2) was triggered by the satisfaction of the conditions in section 193 (1). Once Enfield had continued to house him temporarily at 28c Bury Street pursuant to its duty under section 193 (2), he was no longer homeless. Thus, the duty under section 193 (2) had been discharged. Since the duty had been discharged, there was no further duty on Enfield; unless and until the duty under section 193 (2) was triggered again. That could only happen if the conditions in section 193 (1) were satisfied once again. In order for that to happen, Enfield would have to have considered that Mr
Godson
was once again homeless (for example, because the accommodation at 21c Bury Street had ceased to be suitable). In addition, section 193 (1) requires an "applicant". Unless a person asks the council to make another offer, it has no power to do so. Since Mr
Godson
did not ask to be offered further temporary accommodation (whether at 28B Church Street or elsewhere) he was not an applicant; and Enfield had no power to make the offer. It follows that Enfield's duty under section 193 (2) was not re-triggered. In those circumstances, Enfield was not entitled to make an offer of alternative accommodation. Because Enfield was not entitled to make the offer of the tenancy at 28B Church Street, Mr
Godson
was within his rights to refuse it. It would be irrational to conclude that that refusal was a deliberate act which caused his current homelessness.
"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."
"[MrGodson]
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."
Godson's
argument entails the proposition that Enfield's duty was "fully discharged" once he had been accommodated at 28c Bury Street. Muse v Brent LBC does not give any support to that argument. Nor does the argument sit comfortably with the observations of Lady Hale in Birmingham CC v Ali [2009] UKHL 36, [2009] 1 WLR 1506. She said at [42]:
"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)
Godson
is right in contending that section 193 (1), in referring to "the applicant," is to be read as requiring a fresh application for a transfer from one set of temporary accommodation to another. The word "applicant" is defined by section 183 (2) as a person making "such an application": that is to say an application under section 183 (1). The application under section 183 (1) is made when a person applies to a local housing authority for accommodation or assistance in obtaining accommodation. In other words, it is the initial approach to the housing authority that makes a person an applicant. In my judgment they remain an applicant until the whole process has come to an end.
Godson
argued that he was entitled to "waive" the offer of accommodation at 28B Church Street. This argument was based on obiter observations of Arden LJ in Muse v Brent LBC, building on earlier obiter observations she had made in R (Aweys) v Birmingham CC [2008] EWCA Civ 48, [2008] 1 WLR 2305. What she said in the latter case was this:
"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)
Godson
had a right to be accommodated at 28B Church Street that he was entitled to waive.
Was Mr
Godson
intentionally homeless?
Godson's
current homelessness (i.e. his precarious position at the Railway Inn) was caused by intentional conduct on his part: Haile v Waltham Forest LBC [2015] UKSC 34, [2015] AC 1471 at [25]. Accordingly, the question is whether the reviewing officer could lawfully conclude that the operative cause of Mr
Godson's
current homelessness was his refusal of the tenancy at 28B Church Street.
Godson
had a licence to occupy 21c Bury Street, he satisfied section 175 (1) (b). So, the next question is: was that accommodation that it was reasonable for him to continue to occupy?
Godson;
and that it was reasonable for him to continue to occupy that accommodation. Whether it is reasonable for someone to continue to occupy accommodation depends, at least in part, on how long they are expected to stay there. But there is nothing in the Act to preclude an authority from deciding that it is reasonable for an applicant to continue to occupy accommodation which is temporary: R (Awua) v Brent LBC at 68 per Lord Hoffmann, approved in Birmingham CC v Ali [2009] UKHL 36, [2009] 1 WLR 1506 at [41], and followed in Muse v Brent LBC at [8]. Equally, accommodation may be suitable for temporary occupation even if it is not suitable for more permanent accommodation: Birmingham CC v Ali at [47]. A person who is entitled to occupy suitable temporary accommodation is not homeless: R v Brent LBC ex p Awua at 67; Muse v Brent LBC at [35]; Haile v Waltham Forest LBC at [48]. The question under section 191 (1) is whether it was reasonable for Mr
Godson
to stay in the temporary accommodation at 21c Bury Street while Enfield considered his application and, if appropriate, looked for more suitable accommodation: Haile v Waltham Forest LBC at [21]. It was, therefore, open to the reviewing officer to conclude that it was reasonable for Mr
Godson
to continue to occupy the temporary accommodation at 21c Bury Street until such time as the accommodation at 28B Church Street was made available to him.
Godson
was required to leave 21c Bury Street he was threatened with homelessness; and when he actually left he became homeless: R v Brent LBC ex p Awua at 68. His homelessness was not interrupted by temporary accommodation in bed and breakfast accommodation at the Railway Inn. He therefore remained homeless; and had been homeless ever since he left 21c Bury Street. Indeed, the foundation of Mr
Godson's
second application to Enfield was that he was homeless; despite having a roof over his head at the Railway Inn. So, the next question for the reviewing officer was: what caused him to lose the accommodation at 21c Bury Street, thereby becoming homeless? The immediate or most proximate cause may be the effective cause; but that need not be so: William v Wandsworth LBC [2006] EWCA Civ 535, [2006] HLR 42 at [17], approving R (Ajayi) v Hackney LBC (1998) 30 HLR 473.
Godson's
homelessness was the council's decision to evict him from 21c Bury Street. But causation does not necessarily stop there. It is necessary to go on to ask: what caused the council to take that step? The answer is: because Mr
Godson
deliberately refused the temporary accommodation at 28B Church Street.
Godson
was living in bed and breakfast accommodation at the Railway Inn was the result of his refusal of the tenancy at 28B Church Street. The reviewing officer was, in my judgment, entitled to conclude that that refusal was the effective cause of Mr
Godson's homelessness. Since the refusal was a deliberate act, he was intentionally homeless.
Result
Lord Justice Newey: