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Court of Appeal rejects appeal in homelessness case over level of inquiries made

The Court of Appeal has dismissed a claim that a London borough made insufficient inquiries into the reason why an appellant was homeless.

Lord Justice Lewison said the issue in Ciftci v London Borough of Haringey [2021] EWA Civ 1772 was whether Haringey Council was entitled to conclude that Ms Ciftci was intentionally homeless. HHJ Hellman decided that it was.

Counsel for the appellant argued that if the local authority had made sufficient enquiries, it would have discovered at least the possibility that she was homeless because her plans for future employment and accommodation had failed to work out, even though they were based on genuine investigation.

If that had been found, it was said, then Ms Ciftci's decision to give up settled accommodation in Switzerland would not have amounted to intentional homelessness because she would have been unaware of a relevant fact and had acted in good faith.

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The background to the case was that appellant is a single parent who is disabled. She is a double amputee.

Between 2007 and the end of January 2019 she (and latterly her son) had accommodation consisting of a 2-bedroomed self-contained ground floor flat in Switzerland. In terms of tenure, affordability, size, location, state of repair and accessibility, it was said to be suitable in every way.

At the end of January 2019 Ms Ciftci gave up that flat. She arranged for the tenancy to be taken over by someone else and came, with her son, to the UK. She had no secure accommodation within the UK. Instead she and her son (and their dog) slept on a sofa-bed in the home of a family friend.

She was asked to leave in October 2019 and applied to Haringey on the ground that she was homeless.

The reviewing officer considered that the cause of Ms Ciftci's homelessness was that she had given up her flat in Switzerland. That flat was accommodation which it was reasonable for her to have continued to occupy; and if she had not surrendered it would have continued to be available to her. The reviewing officer took the view that, on the face of it, it was reckless for Ms Ciftci to have given up that flat in order to move abroad to sleep on someone's sofa-bed.

He therefore proceeded to consider why Ms Ciftci had moved, and whether the reasons for her move justified "such a rash decision".

Ms Ciftci's account was that she had lost her job in Switzerland and could not find another one. She was struggling with her disability and felt that her mental health was deteriorating. She had no support in Switzerland and she did not want to approach social services in Switzerland in case they removed her child from her custody.

The reviewing officer did not accept this account. He pointed out that Ms Ciftci had no mental health diagnosis; and that she had planned her move well enough to find a new tenant for her Swiss flat. He found that the social welfare system and health care in Switzerland was superior to that in the UK; and that Ms Ciftci's assertion that her child might be taken into care had no basis.

He did, however, accept Ms Ciftci's account that she moved to England because she had been told by her sister that she could stay with a family and that there was a job in the UK for her. The job that her sister had found for her was at Rainbow Meats. But it was short-lived and Ms Ciftci was unable to do the work because of her disability. The accommodation was with the Tosun family and amounted to being able to sleep on a sofa-bed with her son and their dog.

The reviewing officer stated that "you did not make sufficient enquiries regarding the nature of the work and whether you would be capable of doing it." He went on to say:

"While this is not necessarily relevant to your housing situation it demonstrates that you did not make sufficient planning in coming to the UK regarding employment or housing. Having been mindful enough to comply with your tenancy agreement and find an alternative tenant to take over the contract for [the Swiss flat] you then came to the UK "on a wing and a prayer," expecting that a sofa bed in someone's living room and a job that you knew little about would be suitable alternative for a settled accommodation that you had resided in since 2012."

The reviewing officer then considered section 191 (2) of the Housing Act 1996, covering intentional homelessness, expressly. He found that Ms Ciftci's deliberate act was surrendering her tenancy in Switzerland. Having posed the question whether she was unaware of a relevant fact, he said: "I am satisfied that you were fully aware of the need to find settled accommodation before relinquishing your tenancy. You would know that moving into someone's living room with a child and a dog, and making the property overcrowded would be precarious and temporary."

The officer therefore concluded that Ms Ciftci was aware of all relevant facts. Nevertheless, he went on to consider whether Ms Ciftci had acted in good faith. As to that, he said:

"I am satisfied that you have not acted in good faith. Despite being fully aware of the consequences of acting in surrendering your settled accommodation [in the Swiss flat] you continued to do so. This despite having the capability to act appropriately." 

The reviewing officer concluded that Ms Ciftci was intentionally homeless.

According to Lord Justice Lewison, the real thrust of the appeal was that the reviewing officer had failed to make sufficient enquiries; and that if he had, he would (or at least could) have found that Ms Ciftci's plan was that she would stay in the accommodation with her sister's friends for a period of time and then when her finances allowed move to alternative accommodation. Her misappreciation of the nature of the job and her ability to do it was a relevant fact of which she was unaware.

Lord Justice Lewison said: “As noted, section 184 requires the local authority to make such inquiries as are necessary to satisfy themselves whether any, and if so, what duty is owed to the applicant. That duty will include consideration of the effect of section 192 (2) even if it has not been specifically raised, if it is sensibly capable of arising on the facts: F v Birmingham CC [2006] EWCA Civ 1427, [2007] HLR 18 at [17]. But there is no such duty outside the circumstances of obviousness or circumstances in which it is plain that the housing authority has been put on warning as to something that might arise and merit consideration under section 192 (2): Aw-Aden at [12](2).”

The Court of Appeal judge said that in the present case the reviewing officer did explicitly consider (a) whether there was a relevant fact of which Ms Ciftci was unaware and (b) whether she acted in good faith.

“So there can be no real complaint about a failure to consider the relevant questions. That is why Mr Fitzpatrick's real complaint, as it seems to me, was the investigation was not thorough enough,” Lord Justice Lewison said.

He noted that the duty was not a duty to make all possible inquiries: it was a duty to make necessary inquiries.

Lord Justice Lewison said that in the present case, officers had made at least 10 phone calls investigating Ms Ciftci's situation; interviewed her, and engaged in correspondence with her. Following the initial decision that she was intentionally homeless, Haringey gave her the opportunity to make further representations about why that was not the case. On 11 March 2020 they then sent her the "minded to find" letter required by the regulations, and again invited yet further representations.

The Court of Appeal judge said the question what investigation or planning Ms Ciftci had made before giving up her Swiss flat was squarely raised. “She had the opportunity to refute that assertion, but did not do so. The time for making representations was extended twice….. Even after having received representations on the last day possible, the reviewing officer then sent Ms Ciftci a questionnaire to answer about the circumstances in which she left Switzerland. The questions were properly focussed and concentrated on the main issues. One of those questions was what plans she had made before coming to the UK for housing and work. It will be recalled that the asserted lack of planning and investigation was one of the points raised in the ‘minded to find’ letter.”

Ms Ciftci had answered: "I knew I have a family to help me and my sister find me a job before I come to UK, I knew I had a job a friend to stay with and family to help and support me."

She was also asked why her plans did not work out. “Her answer was that the Tosuns had asked her to leave because when she removed her prosthetic legs and moved about the living room on her knees it was upsetting for their children. She did not mention the loss of her job.”

Lord Justice Lewision said: “As Mr Evans submitted on behalf of Haringey, there was simply no trigger in any of the information supplied by Ms Ciftci to alert Haringey to the real possibility that the reason why she gave up her settled accommodation in Switzerland was that she had an active belief that a specific state of affairs (i.e. her continuation in the job that her sister had found) would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration; let alone that continuation in that job would enable her to find accommodation in due course.

“Bearing in mind that it is for the applicant to show that she falls within section 191(2) (see Afonso-da-Trindade at [26]), I do not think that the reviewing officer can be criticised for not having made further inquiries. This is not, in my judgment, a case in which it could be said that no reasonable reviewing officer possessed of the material that Ms Ciftci provided (after inquiry) could suppose that the inquiries they had made were sufficient. I reject this ground of criticism.”

Lord Justice Lewison also rejected a claim that it was procedurally unfair for the reviewing officer to make a decision on the material that had been supplied.

The Court of Appeal judge said that in the circumstances it was “not possible to see what relevant fact relating to her job (i.e. relevant to here homelessness) Ms Ciftci was unaware of”.

“All that is left, then, is that Ms Ciftci gave up her flat in Switzerland and came to England because her sister told her that she could stay with a family. The reviewing officer found that she made no further inquiries about the nature or potential duration of that arrangement. Nor (in so far as it is relevant) did Ms Ciftci make enquiries about the nature of the job that her sister had found for her. The reviewing officer was entitled to find that the arrangement with the Tosuns was inevitably a temporary arrangement only. It is impossible to see any significant difference between Ms Ciftci's situation as regards housing and those of the unsuccessful applicants in Sukhija or Afonso.”

Lord Justice Lewison concluded that the reviewing officer had been fully entitled to conclude, on the information that he had, that Ms Ciftci gave up her settled accommodation in Switzerland and came to England "on a wing and a prayer".

He added: “In those circumstances, the reviewing officer was also entitled to find that Ms Ciftci was not unaware of any relevant fact; and that the cause of her homelessness was her decision to give up her settled accommodation in Switzerland. The consequence of those findings was that the reviewing officer was entitled to find that Ms Ciftci was intentionally homeless.”

Lord Justice Moylan and Lord Justice Nugee agreed.

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