In Haile v Waltham Forest LBC [2014] EWCA Civ 792, the question for the Court of Appeal was the relevant date for determining whether an applicant is intentionally homeless.  On the facts, this was a significant question: Ms Haile had left her room in a hostel on 25th October 2011 to go to stay with a friend.  Only one person was entitled to occupy the room.  She said that she left the room because of unpleasant smells in the hostel.  At the time she left the room, she was pregnant and she gave birth to the beautifully named Delina on 15th February 2012.  Now, clearly, as of Delina’s birth, the room would not have been reasonable for Ms Haile to continue to occupy because more than one person would be occupying it in breach of the tenancy agreement.  However, the council found her intentionally homeless because they did not accept that, as of 25th October 2011, the smells into the room made it not reasonable to continue to occupy.

Now, you may be forgiven for thinking that this is a basic question which should have been resolved many moons ago.  And, indeed, you would be right.  In Din v Wandsworth LBC [1983] AC 657, the House of Lords had, by a majority, held that the correct date for determining intentionality was the date when the household left their accommodation.  Ms Haile was asking the Court of Appeal to depart from that decision.  Jackson LJ accepted the force of the minority position in Din but nevertheless “… loyally accept[ed] the decision of the majority as stating the law under the 1977 Act”.

Ms Haile accepted that the relevant provisions were basically the same, although the amendment to enable the council to take account of their local housing circumstances in determining reasonableness (s. 175(3)) was found not to have altered the situation.  So, what else was there?  The answer is not much beyond a will-o-the- wisp.  Baroness Hale in Birmingham CC v Ali [2009] UKHL 36 – a case which, imho, can be made to say what you want it to say – said at [65], “There may come a case in which we should re-examine the circumstances in which a finding of intentional homelessness ceases to colour all future decisions under the Act but there is no need for us to do so now”.  There was a suggestion drawn from Banks v Kingston upon Thames RLBC [2008] EWCA Civ 1443 about when a decision about homelessness becomes deficient, but, as Jackson LJ, said, althoughit is tempting to use that by analogy:

Tempting but wrong. Section 190 (1) of the 1996 Act uses the phrases “is homeless”, “is eligible for assistance” and “became homeless intentionally”.  Sections 192 (1) and 193 (1) use similar phrases.  The deliberate switch from the present to the past tense indicates that the Council must investigate the historic cause of the applicant’s homelessness, but consider all other issues by reference to the present state of affairs.

So, in short, Ms Haile lost her appeal.  This case, like Sims, might be a stalking horse for an appeal to the UKSC and congratulations to Kerry Bretherton for getting permission to appeal to the CA, but I fear that it is a hopeless cause.

• please forgive the rubbish pun