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Supreme Court upholds challenge to council decision on intentional homelessness

Supreme Court Main Entrance 03521C press office supplied 146x219Local authorities have been advised to review urgently their intentional homelessness decision making after the Supreme Court – by a 4-1 majority – today upheld an appellant’s challenge.

The case of Haile v London Borough of Waltham Forest [2015] UKSC 34 is the third major ruling by the Court on homelessness law in the space of a few weeks, after Nzolameso and Hotak.

The issue in Haile was whether Waltham Forest Council was entitled to be satisfied that the appellant, Ms Haile, had become homeless intentionally.

If the authority was not satisfied that she “became homeless intentionally” (section 193(1) of the Housing Act 1996), then it was under a duty to secure that accommodation was available for her occupation (section 193(2)).

By section 191(1) of the 1996 Act: “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.”

The background to the case was that Ms Haile had surrendered her tenancy of a bedsit in a hostel on 25 October 2011. She moved to temporary accommodation, which ended in November 2011 when she was asked to leave because of overcrowding.

The appellant then applied to Waltham Forest Council for accommodation as a homeless person.

On 15 February 2012 she had a baby daughter. Had she still been living in the hostel, she would have had to leave, as only single persons were allowed to reside there.

On 1 August 2012 the authority decided that the appellant was homeless, eligible for assistance, and had a priority need, but that she became homeless intentionally.

This decision was upheld by a review officer on 31 January 2013. This was on the basis that Ms Haile had surrendered her tenancy of the room in the hostel and in consequence had ceased to occupy accommodation which was available for her occupation, and which it would have been reasonable for her to continue to occupy until she gave birth.

Her contention that she would have had to leave the hostel in any event when she gave birth was regarded as irrelevant.

Ms Haile’s appeal was dismissed by the County Court and the Court of Appeal.

Before the Supreme Court, she argued that the birth of her baby broke the chain of causation between her intentionally leaving the hostel, and her state of homelessness when her application was considered. The appeal invited the court, if necessary, to depart from the House of Lords’ decision in Din v Wandsworth London Borough Council [1983] 1 AC 657.

The Supreme Court allowed Ms Haile’s appeal by a majority of 4-1, with Lord Carnwath dissenting.

Lord Reed gave the main judgment. He noted that the purpose of the requirement in section 193(1) was to prevent ‘queue jumping’ by persons who, by intentionally rendering themselves homeless, would (in the absence of such a provision) obtain a priority in the provision of housing to which they would not otherwise be entitled.

“Consistently with that rationale, it cannot be intended that an applicant is to be disqualified for accommodation if he has ever, at any time in his life, become intentionally homeless,” the judge said.

“For example, an elderly man who becomes homeless when his care home is closed cannot be intended to be denied assistance merely because, 60 years earlier, he was evicted from his student digs for holding rowdy parties. As counsel for the appellant submitted, the homelessness with which the words ‘became homeless intentionally’ are concerned must be the homelessness which the authority have found to exist: ‘is homeless’ and ‘became homeless’ must refer to the same current state of being homeless. It is therefore in relation to the current state of being homeless that the question has to be answered, did the applicant become homeless intentionally?”

On the other hand, Lord Reed said, section 193(1) could not be concerned only with the reason for the loss of accommodation which the applicant occupied immediately before he became homeless.

“If that were its effect, the legal consequences of becoming homeless intentionally could readily be avoided by obtaining temporary accommodation, so that the applicant ceased for a time to be homeless, and then waiting to be evicted from it, so bringing about a state of homelessness consequent on the involuntary loss of that accommodation. The aim of the provisions relating to intentional homelessness would then be circumvented.”

The Supreme Court judge said section 193(1) must therefore be understood as being concerned with whether the applicant’s current homelessness had been caused by intentional conduct on his part.

This depended, first, on whether he deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation meeting the requirements of section 191(1).

If the answer to that question was in the affirmative, the further question arose under section 193(1) whether the appellant’s current homelessness was caused by that intentional conduct.

Lord Reed said that section 193(1) was to be construed as meaning:

“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 is homeless because] he became homeless intentionally.”

The Supreme Court judge said issue in Din was a relatively narrow one, concerning the interpretation of the definition of “becoming homeless intentionally” in section 17(1) of the Housing (Homeless Persons) Act 1977.

The House of Lords’ decision that the elements of that definition were to be considered as at the time when the applicant ceased to occupy accommodation meeting the requirements of the definition appeared to Lord Reed to have been correct.

“The decision as to the tempus inspiciendum remains good law in relation to the corresponding definition in section 191(1) of the 1996 Act,” the judge said.

It also remained true that if the definition was satisfied at that point in time, subsequent hypothetical events were immaterial.

Lord Reed added that the conclusion in Din that there must be a continuing causal connection between the deliberate act satisfying the definition of ‘intentional’ homelessness, and the homelessness existing at the date of the local authority’s inquiry, also remained good law.

“As counsel for the appellant submitted in the present case, the legislation is concerned with the applicant’s homelessness at the time of the authority’s inquiry, and therefore with the intentionality of that state of homelessness,” the judge said.

“As counsel submitted, any consideration of intentional homelessness arises after it has been decided that a person is homeless, and looks backwards to determine the operative cause of that homelessness.”

Lord Reed noted that later authorities applied that principle and provided examples of events interrupting the causal connection, such as marital breakdown, a cut in housing benefit and the breakdown of an arrangement for the payment of rent. “These examples all concerned actual, not hypothetical, events.”

Turning to Ms Haile’s case, Lord Reed said the review officer did not consider whether the cause of her current state of homelessness was her surrender of her tenancy of the room in the hostel.

“The consequence of the appellant’s giving birth to her baby is that it cannot be said, in relation to her earlier conduct in leaving the hostel, that ‘if she had not done that deliberate act she would not have become homeless’,” the judge found.

“Nor can it be said that the policy underlying the provisions as to intentional homelessness, namely to prevent queue-jumping, was applicable to her case. The birth of the baby meant that the appellant would be homeless, at the time when her case was considered, whether or not she had left the hostel when and for the reasons that she did. She had not therefore jumped the queue as a result of her earlier decision to surrender the tenancy.”

Lord Neuberger agreed with Lord Reed’s analysis, and added some reasons of his own.

Lord Carnwath, in his dissenting judgment, would have dismissed the appeal.

He suggested Lord Reed had undertaken his own re-analysis of Din in a way which had not been suggested by the parties before the Supreme Court, nor – to Lord Carnwath’s knowledge – by anyone else in the three decades since the decision had been decided.

In Lord Carnwath’s view the reasoning of the review officer was an orthodox reflection of the majority approach in Din as endorsed in Awua.

Commenting on the case, Matt Hutchings of Cornerstone Barristers said: “Haile represents the third major shift in homelessness law fashioned by the Supreme Court in a matter of weeks, following Nzolameso and Hotak (suitability and priority need).

“Local authorities will need urgently to review their intentional homelessness decision making in the light of this latest judgment.”

In Hotak, judgment in which was handed down on 13 May, the Court overturned the 1998 Court of Appeal case of Pereira.

This was after it heard three linked appeals over when homeless people are to be considered ‘vulnerable’ under the Housing Act 1006 and therefore in priority need.

In Nzolameso the Supreme Court unanimously quashed a London borough’s offer to a homeless mother of five of accommodation nearly 50 miles away in Milton Keynes. The court gave its reasons in April.

[This article was based to a considerable extent on the Supreme Court’s press summary of the Haile judgment]

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