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Court of Appeal quashes “legally flawed” decision by review officer that applicant was not in settled accommodation in period after earlier finding of intentional homelessness

The Court of Appeal has found a review officer’s decision – that a homelessness applicant had not been in settled accommodation following an earlier finding of intentional homelessness – to be “legally flawed”.

The case of Bullale v City of Westminster Council [2020] EWCA Civ 1587 involved an appeal against a decision of HHJ Freeland QC sitting in the County Court at the Mayor’s and City of London Court on 12 December 2019.

Judge Freeland had dismissed an appeal against a decision of a review officer at City of Westminster Council, dated 23 August 2019.

The review officer had upheld a decision of 18 June 2019 that the appellant was intentionally homeless within the meaning of section 191 of the Housing Act 1996.

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The appellant had been provided by a local authority (the London Borough of Hammersmith & Fulham) with temporary accommodation at Seagrove Hostel in November 2015 pursuant to the duties imposed by the 1996 Act.

Ms Bullale, who has three daughters aged 26, 21 and 17, was offered suitable accommodation but refused it. The appellant was required to vacate Seagrove Hostel in January 2016.

The appellant and her three daughters occupied a one-room studio flat at Bravington Road, London from 19 September 2016 until November 2018 at which date the landlord recovered possession.

Ms Bullale then applied to Westminster for assistance under Part VII of the 1996 Act as she was homeless.

However, the city council decided that the appellant had become intentionally homeless when she left Seagrove Hostel in January 2016. It also decided that the period of accommodation at Bravington Road was not settled accommodation capable of breaking the causal connection between the earlier intentional homelessness in 2016 and the homelessness that arose in November 2018.

A review officer confirmed that decision. Ms Bullale’s appeal to Judge Freeland was unsuccessful.

There was one ground of appeal, namely that the reviewing officer erred by considering that the appellant had not obtained settled accommodation for the purposes of section 191 of the 1996 Act on the basis that the accommodation was overcrowded.

Quashing the decision, Lord Justice Lewis concluded:

35. First, on a fair reading of the decision letter, it is clear that the critical factor so far as the review officer was concerned was that the studio flat was overcrowded. The review officer considered that the accommodation was unsuitable for occupation because it was overcrowded and it was for that reason that she considered the accommodation was not settled. That appears from paragraphs 12 and 13 of the decision letter set out above.

36. The review officer has not considered all the relevant facts to determine whether, as a matter of fact and degree, and bearing in mind the purpose of the legislation, the accommodation at Bravington Road was in fact a settled arrangement not a temporary one. The review officer does not refer to the nature or length of the tenancy of 9 Bravington Road or the circumstances in which the tenancy was granted. There is no reference to the fact that it was a commercial relationship or that a tenancy agreement of just under a year was entered into after it was made clear to the appellant that she would not be eligible for assistance from the authority (and not as a means of enabling her to apply for assistance from the local authority). The review officer does not refer to the fact that the rent was affordable and paid from housing benefit and discretionary assistance.

37. Secondly, it is not enough simply to identify a potentially relevant factor. It is necessary to identify how that factor is relevant to the question of whether the accommodation is settled or temporary. In the present case, there is no real analysis either of the relevance of the overcrowding on the facts of this case or its relationship with the other factors. On the facts as accepted by the review officer, the landlord, the previous local authority (Hammersmith and Fulham), and the tenant all knew at the outset that the flat would be occupied by four people when the appellant moved in: see paragraph 13 of the decision letter. Hammersmith and Fulham provided a deposit. The rent was paid for out of housing benefit and discretionary payments made by the local authority. I do not accept that in those circumstances, the arrangement was doomed to fail or that the landlord would inevitably have sought to recover possession. It may well be that the accommodation, unsuitable though it was, was the best that the appellant could find for herself and her family, given their limited financial resources and the shortage of accommodation in London. The overcrowding in the flat would not necessarily mean that the accommodation would be temporary.

38. Thirdly, the review officer does not relate the overcrowding to the other factors to assess whether those other factors mean that, taken overall, the accommodation could properly be seen as temporary or not settled. In paragraph 14, the review officer acknowledges that the appellant spent two years in the property but did not consider that that made the accommodation any more settled. No explanation for that view is given. The review officer says that she cannot have regard to the length of occupation alone but must look at all the facts of her case. That is correct – but she does not, however, refer to any other facts (other than the overcrowding previously referred to). The review officer states that she is aware that it is possible to occupy insecure, unreasonable or temporary accommodation for an extended period of time. That may be correct but does not provide an analysis, or explanation, of why the accommodation in this case was temporary rather than settled. Nor does the review officer consider all the relevant facts, including the tenancy, the length of occupation, the commercial nature of the relationship, and the basis upon which the property was let (i.e. that it was known that all four family members would be living there or, at the very least, that was known from February 2017).

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39. In the circumstances, the decision of the reviewing officer is legally flawed. The decision-maker did not consider all the relevant circumstances, bearing in mind the legislative purpose, in order to determine whether, as a matter of fact and degree, the accommodation was settled. I would therefore quash the decision and remit the matter to the respondent to consider all the relevant facts.

Lady Justice King and Lord Justice Bean agreed.

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