Viackiene v Tower Hamlets LBC (2013) CA (Civ Div) 11/12/2013 [Not on Bailii, note on Lawtel, not seen full transcript]
Ms V was the joint tenant of a private property under an assured short hold tenancy. The other tenant was J. Both were jointly and severally liable for the rent. However, there was an arrangement by which Ms V paid the majority of the rent and J the remainder. J lost his employment and did not pay his share of the rent. The landlord proposed to Ms V that she should find another co-tenant, with the landlord's assistance. Ms V did not do so and the landlord brought possession proceedings for rent arrears.
At eviction, Ms V applied to Tower Hamlets as homeless. TH found that she was intentionally homeless. This decision was upheld on review at County Court s.204 appeal. Ms V appealed to the Court of Appeal.
She argued that her homelessness was not due to a deliberate act or omission on her part. When the landlord had offered to assist in finding another co-tenant there were factors constraining her decision: She wanted to keep J as co-tenant; she was concerned that any new co-tenant would be unknown and might also not be able to pay the share of rent; she was under emotional pressure due to the threat of eviction; and she was concerned about the suitability of other accommodation.
The Court of Appeal held:
The review officer had used a checklist, on which whether MS V had done or failed to do something deliberately for the purposes of s.191. The act identified was that Ms V had failed to maintain the full rent for a period of two years, despite a number of reminders and being given opportunities to rectify the situation.
The landlord's offer of help to find a more suitable co-tenant was one such opportunity. Replacing J might not have been straightforward but it was possible and Ms V had declined that offer. Ms V had had a solicitor in the possession proceedings so advice was available about replacing J and about whether housing benefit would cover the full rent.
The question of suitability of other accommodation was not relevant to the landlord's offer. Ms V's desire to keep J as co-tenant had not been put forward on review and was surprising, given that it was a purely commercial relationship, which had broken down on his failure to pay rent. Concerns about any potential new tenant had also not been raised on review, but the landlord's offer was reasonable and genuinely made.
The Judge below was right to find that the reviewing officer was entitled to decide that Ms V's failure to engage with the landlord's offer amounted to intentional behaviour on her part and there was no error in law in the officer finding it was her deliberate decision to refuse that landlord's offer that had led to her homelessness.
I don't think that this should be taken as in any sense a precedent for a tenant failing to find a new joint tenant being intentional homelessness. The key element is the landlord's offer to assist, that Ms V actively declined a potential resolution to the rent shortfall. As finding a new joint tenant would involve terminating the current tenancy (something apparently not directly addressed in this Judgment) , it is clearly not a reasonable step to take without the landlord's clear support in doing so.