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End of the road?

Housing timer 45568205 s 146x219Morayo Fagborun Bennett looks at the Court of Appeal's decision on waiving offers of alternative accommodation and the lawfulness of an earlier review decision on a subsequent homelessness appplication in Godson v London Borough of Enfield [2019] EWCA Civ 486.

The Court of Appeal identified and considered the following three issues. Firstly, if a local housing authority purports to discharge its duty to a homeless person such as to terminate that duty, and the homeless person does not appeal against an unsuccessful review of that decision; is he entitled to challenge the lawfulness of that review decision on a subsequent application for assistance as a homeless person?

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The court held that Mr Godson could not challenge the earlier review decision. Secondly, if Mr Godson could challenge the earlier decision, was the housing authority entitled to terminate its duty in the manner in which it purported to do? The court held that it was open to Enfield Council to perform its duty under section 193 of the Housing Act 1996 (HA 1996) by providing temporary accommodation until it was able to discharge the full housing duty by providing further accommodation.

Thirdly, if the termination of the housing duty and the homeless person's consequent eviction was caused by the homeless person's refusal of an offer of temporary accommodation, is he thereby rendered intentionally homeless? The court held that the reviewing officer was entitled to hold that as the refusal of a tenancy was the effective cause of Mr Godson’s homelessness and the refusal was a deliberate act, Mr Godson was intentionally homeless.

What are the practical implications of this case?
It is worth noting five issues in particular:

  • Firstly, even where a homelessness applicant has been temporarily housed under HA 1996, s 193, the duty under HA 1996, s 193 continues, until it is expressly discharged in one of the specific ways in HA 1996, s 193(5).
  • Secondly, HA 1996, s 193(1) does not require the homelessness applicant accommodated in temporary accommodation to make an application for alternative accommodation before the local authority can move them. The council can perform their full homelessness duty under HA 1996, s 193(2) by making whatever suitable offer of accommodation they wish to make. Clients need to be aware that they cannot reject a suita-ble offer of alternative accommodation simply because they prefer the temporary accommodation that they have been provided with.
  • Thirdly, a homelessness applicant is only entitled to be housed in suitable accommodation which is reasonable for them to occupy. There is no entitlement to stay at a particular accommodation. Accordingly, cli-ents should be advised that they do not have a right to waive the right to stay at temporary or permanent accommodation. There is no right to waive an offer of alternative accommodation.
  • Fourthly, the court will almost inevitably find that a homelessness applicant made themselves intentionally homeless where there has been a deliberate act consisting of the refusal of suitable accommodation.
  • Fifthly, if a homelessness client wishes to challenge a review decision, they need to appeal it. They will not be able to challenge an earlier review decision in a subsequent application.

What was the background?
Mr Godson had been provided with a licence agreement for temporary emergency accommodation under HA 1996, s 188 at Bury Street while Enfield Council considered whether he was owed any duties under Part 7 of HA 1996. They decided he was owed the full homelessness duty under HA 1996, s 193(2). When the full homelessness duty was accepted under HA 1996, s 193, Enfield Council continued to house Mr Godson at the property in Bury Street. Bury Street therefore became temporary accommodation provided under HA 1996, s 193(2).

Enfield subsequently offered Mr Godson, under HA 1996, s 193 a tenancy of a property in Church Street, which he rejected. Enfield discharged the duty to provide Mr Godson with accommodation under the Hous-ing Act 1996, rejected his review application and evicted him. Mr Godson did not appeal the review decision. He found and moved into bed and breakfast accommodation, which was not settled accommodation and therefore did not break the chain of causation.

Mr Godson’s subsequent homelessness application was rejected by Enfield Council on the basis that he was not unintentionally homeless.

What did the court decide?
As with all homelessness appeals in the Court of Appeal, the court was primarily considering whether the original review decision was one that the decision-maker was entitled to reach rather than whether the County Court deciding the first appeal was right (see Kitchin LJ in Birmingham CC v Balog [2013] EWCA Civ 1582 at [26]).

The court decided that if Enfield purported to discharge its duty to Mr Godson, a homeless person, such as to terminate that duty and Mr Godson did not appeal against an unsuccessful review of that decision, he was not entitled to challenge the lawfulness of that earlier review on a subsequent application for assistance as a homeless person. It was said to be ‘plainly right’ that where a statute provides an entitlement to a right to be determined in a particular way and subject to time limits, it would be wrong in principle to permit the deter-mination to be challenged by a different procedure later on.

The court held that even if it had been open to Mr Godson to challenge the first review decision, that would not have been successful. This was because it was open to Enfield Council to perform its duty under HA 1996, s 193 by providing temporary accommodation until it was able to discharge it by providing further ac-commodation. Enfield could provide temporary accommodation under HA 1996, s 193(2) at Bury Street and then further accommodation at Church Street. It was not for the homelessness applicant to dictate how the council performed its duty. Therefore such an applicant could not ‘waive’ the right to stay at a suitable tem-porary or permanent accommodation. It is not open to someone to ‘waive’ the right to temporary accommo-dation as this imposes additional financial burdens on a local authority which would be compelled to use public money to fund them.

Mr Godson wished to argue that because Enfield continued to house him at Bury Street after accepting that a full homelessness duty was owed under HA 1996, s 193, the duty under s 193 had been discharged. His argument was that once the homelessness had thus been discharged, he was no longer homeless and Enfield were not entitled to ask him to move to alternative accommodation at Church Street. He therefore claimed that he was within his rights to refuse it and could not be considered to have made himself intentionally homeless.

The court, in rejecting this argument, pointed to the distinction between discharging a duty (by bringing it to an end) and performing it. Applying R (Awua) v Brent [1996] AC 55 to this case, the court held that Mr Godson could not be required to leave the accommodation provided under HA 1996, s 193(2) at Bury Street un-less either he was provided with alternative accommodation at Church Street or there was a reason why his consequent homelessness would not give rise to a further duty under HA 1996, s 193(2) – ie his refusal of the offer of a tenancy at 28B Church Street.

The provision of temporary accommodation at Bury Street under HA 1996, s 193 did not fully discharge the homelessness duty. Rather, Enfield could satisfy their s 193(2) housing duty by providing temporary accommodation, which must then be followed by the provision of further accommodation, as long as the full housing duty exists.

The court also made it clear that, if the termination of the housing duty and the homeless person's conse-quent eviction was caused by the homeless person's refusal of an offer of temporary accommodation, he is likely to have therefore rendered himself intentionally homeless. The refusal of a tenancy is likely to be held to be a deliberate act and the refusal held to be the effective cause of the applicant’s homelessness.

A homeless person is therefore best advised not to ‘waive’ any suitable offers of temporary or permanent accommodation and to appeal any unsuccessful reviews within the time limit, as they won’t be able to seek a review on a subsequent homelessness application.

Case details

• Court: Court of Appeal, Civil Division
• Judges: Lewison and Newey LJJ
• Date of judgment: 22 March 2019

Morayo Fagborun Bennett is a barrister at Hardwicke Chambers. 

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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