When was the relevant time for a council to consider whether an applicant’s homelessness was intentional? Chistopher Baker reports on an important Court of Appeal ruling.
In Haile v Waltham Forest LBC  EWCA Civ 792 the Court of Appeal has held that Din v London Borough of Wandsworth  1 AC 657, HL, remains binding and governs the operation of Pt 7 Housing Act 1996, i.e. that the relevant time for considering whether it was reasonable to continue to occupy accommodation was the moment when the applicant became homeless.
Legislative scheme under Pt 7 Housing Act 1996
Section 191(1) Housing Act 1996 provides:
“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.”
Section 190 sets out the limited duties of a local housing authority towards persons found to be homeless or threatened with homelessness intentionally. By s190(1), the section applies “where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but also satisfied that he became homeless intentionally".
Section 175(3) provides: “A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”
In Din v London Borough of Wandsworth  1 AC 657, HL, a majority of the House of Lords held that, for the purposes of corresponding provisions in the Housing (Homeless Persons) Act 1977, the relevant time for considering whether it was reasonable to continue to occupy accommodation was the moment when the applicant became homeless.
In Birmingham City Council v Ali; Moran v Manchester City Council  UKHL 36;  1 WLR 1506, at  Baroness Hale held: “It would not be reasonable for a person to continue to occupy the accommodation which is available to him or her, even if it is reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she will have to do so unless the authority take action.”
In Banks v Kingston Upon Thames Royal London Borough Council  EWCA (Civ) 1443;  PTSR 1354, Lawrence Collins LJ held at - that, for the purposes of regulations governing reviews under s202, there had been a deficiency in the original decision by virtue of the fact that between that decision and the review decision the applicant had become homeless, and consequently the original decision was, or became, deficient because it had not addressed the question of priority need.
Ms Haile arrived in the UK as an asylum-seeker and was granted leave to remain. On 10 June 2010 she was granted a written assured shorthold tenancy by a housing association of a room with shared facilities, initially for a fixed term of 6 months and thereafter on a weekly periodic basis. The accommodation comprised a bedsit and the agreement provided that it was for single person occupation.
In June 2011 she became pregnant. She left the accommodation on 25 October 2011, later saying this was because of unpleasant smells. She applied to Waltham Forest as homeless under Pt 7 Housing Act 1996 on 24 November 2011; inquiries were made and temporary accommodation was provided. On 15 February 2012, Ms Haile gave birth, which would have prevented her from remaining in the accommodation.
The initial decision on her application was that she became homeless intentionally. A review under s202 confirmed that conclusion, in particular that it had been reasonable for her to continue to occupy the accommodation. Ms Haile’s appeal to the county court under s204 was dismissed. She was granted permission to appeal to the Court of Appeal on the point of principle whether Din remained good law.
Dismissing the appeal, the Court held:
- Din required the decision maker to consider whether homelessness was “intentional” at the date when Ms Haile quit her accommodation, not at the date of the decision.
- Birmingham City Council v Ali was not directly relevant to the issue in the present case, because it was concerned with the suitability of accommodation under ss206 and 210 and the operation of s175(3). That case did, however, provide one straw in the wind because Baroness Hale observed at : “There may come a case in which we should re-examine the circumstances in which a finding of intentional homelessness ceases to colour all future decisions under the Act but there is no need for us to do so now.”.
- Although what is now s175(3) post-dated the provisions considered in Din, being a response to the House of Lords’ decision in Puhlhofer v Hillingdon London Borough Council  1 AC 484, it was not relevant to the causation issue which arose in Din and the present case.
- While it was tempting to apply by analogy the reasoning of Lawrence Collins LJ in Banks, it would be wrong to do so: s190(1) used the phrases “is homeless”, “is eligible for assistance” and “became homeless intentionally” [the Court’s emphasis] and ss192(1) and 193(1) used similar phrases; the deliberate switch from the present to the past tense indicated that the decision-maker must investigate the historic cause of the applicant’s homelessness, but consider all other issues by reference to the present state of affairs.
- Din was accordingly still binding and governed the operation of the Housing Act 1996.