Council wins Court of Appeal dispute over intentional homelessness and tenancy obtained through misleading information

Lord Justice Stuart-Smith said in his judgment that the cases raised “important issues about the interpretation and application of section 191 of the Housing Act 1996”.

This section provides that 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”.

Emilia Munemo was in 2011 granted a sole secure tenancy of a flat in Birmingham and while still a tenant there applied to Wolverhampton for assistance as a homeless person.

Her application did not mention her tenancy in Birmingham and she was granted an introductory tenancy of a house, which later matured automatically into a fully secure tenancy by section 125 of the 1996 Act.

Wolverhampton sought possession on Ground 5 of Schedule 2 of the Housing Act 1985, which requires a landlord to prove that a false statement was made and induced a tenancy.

In 2021, Wolverhampton officers discovered Ms Munemo simultaneously held tenancies in the city and in Birmingham.

The council served a notice of seeking termination of her tenancy and possession under section 83 of the 1985 Act as Ms Munemo had provided false or misleading information when she applied.

Ms Munemo then applied to Wolverhampton for homelessness assistance and the council concluded she was intentionally homeless.

Wolverhampton stuck to its finding after a series of disputes about reviews of the decision and DDJ Sharp’s grant of a possession order.

But Ms Munemo’s solicitors then argued in the county court that the cause of her homelessness was the council's conclusion that she had obtained her tenancy by deception.

They said that had the council had directed itself correctly in law, it would have been bound to conclude that the home in Wolverhampton was not reasonable for her continued occupation because it is unreasonable to continue to occupy accommodation against the wishes of the landlord.

In the county court, HHJ Grimshaw decided the review decision was flawed as there had been no sensible attempt to grapple with the principle set out in Chishimba and that had the reviewer considered the issue, he would not have concluded that it was reasonable for her to continue to occupy the Wolverhampton address.

HHJ Grimshaw concluded the review decision provided “inadequate reasons to justify the conclusion reached” and quashed it.

Wolverhampton appealed on the grounds that HHJ Grimshaw erred in holding that Ms Munemo was not intentionally homeless for the purposes of section 191(1) of the 1996 Act, and was also wrong to hold that Wolverhampton’s decision was defective because of a failure to consider the case by reference to Chishimba and Gliddon.

Stuart-Smith LJ said the facts of the case fundamentally differed from Chishimba and that at all material times until the possession order was executed, Ms Munemo had the benefit of her secure tenancy, and the court could not make a possession order against her unless it was reasonable and proportionate to do so.

He said: “The sweeping assertion made in Gliddon that, on the facts of that case, there was ‘no possible justification’ for continuing to occupy the accommodation against the wishes of the landlord is inapposite when applied to a person having the benefit of a secure tenancy.

“Similarly, the rhetorical question in [16] of Chishimba was predicated on the council having terminated her tenancy…that is not applicable in the present case.”

He said all the evidence provided to the council and the courts showed it would have been reasonable Ms Munemo to continue to occupy the Wolverhampton accommodation “had she not, in consequence of her deliberate act, had to cease occupation”.

Stuart-Smith LJ said he could not see a justification for extending the principles adopted in Chishimba to this appeal.

Doing so “would have the consequence that any person who induces the grant of a tenancy of suitable and satisfactory accommodation by deception will not be intentionally homeless if that deception subsequently causes them to cease to occupy their accommodation.

“Such an outcome would, in my judgment emasculate section 191 and prevent it from achieving its statutory purpose, which I take to include discouraging the obtaining of accommodation by deception.”

He allowed Wolverhampton’s appeal and added that the decision letter sufficiently explained the council's reasons why Ms Munemo was intentionally homeless, and restored the council's review decision against her.

Lord Justice Cobb and Lord Justice Phillips both agreed.

Mark Smulian