Tag Archive for 'intentionally homeless'

These we have missed/didn’t know about

Published
by
NL
on 17/05/2010
in Homeless, Housing law - All and Possession
. 0 Comments

As ever, the Housing updates in Legal Action for May 2010 contains news of a few homelessness cases that are otherwise unreported and which hadn’t reached us – primarily County Court decisions or applications for permission for JR or appeal that didn’t make Bailii or elsewhere.

Human Rights
Slough BC v Aden [2009] EWCA Civ 1541
Application for permission to appeal on the basis that the provision of a non secure periodic tenancy of a hostel room under the homelessness provisions of Part VII Housing Act 1996 was incompatible with Art 8 of the ECHR. Mr Aden had been found not to be in priority need and an NTQ served on the non-secure tenancy. Permission to appeal refused. The issue had been considered in Sheffield CC v Smart [2002] EWCA Civ 4 and Desnousse v Newham LBC [2006] EWCA Civ 547 and Part VII had been held to be complaint.

Homelessness
O’Callaghan v Southwark LBC. Lambeth County Court 6/11/2009
The Claimant, aged 17 applied as homeless. She was dealt with under Part VII and not referred to Children’s Services. She was provided with temporary accommodation, but no s.184 decision was made or notified to her. The Claimant was evicted from the foyer style accommodation she had been placed in. Southwark decided that she was intentionally homeless as a result, upheld on review. On appeal, Southwark argued that securing the foyer style accommodation was part of its homelessness prevention arrangements, so accepting the placement had brought the Claimant’s homeless application to an end. HHJ Welchman allowed the appeal and varied the decision to one that the Claimant had not become homeless intentionally. There had been no decision on her application, so the loss of interim accommodation could not give rise to a finding of intentional homelessness. Prevention of homelessness, while a good thing, was not an alternative to the Part VII framework and provision of accommodation as ‘homelessness prevention’ could not be used as a way to avoid statutory responsibilities. (Good work by Cambridge House Law Centre(R) there).

R(Halewood) v West Lancashire DC. Admin Court sitting in Manchester 31/07/2009
Ms Halewood made an application under Part VII. The LA decided that she lacked capacity to make such an application, R v Tower Hamlets LBC ex p Begum [1993] 1 AC 509. A consultant psychiatrist advised that while she possessed capacity to understand and respond to an offer of accommodation, her mental condition would be likely to impair her ability to comply with conditions of tenancy to some degree.

Ms H sought judicial review on the grounds that it was not open to the Council to refuse her application simply because her lack of capacity may have some, possibly minor, role to play in future breaches of tenancy, and that the ratio of Begum was that only a person lacking in capacity to understand and comprehend an offer of accommodation ought to be excluded from Part VII. At a renewed permission hearing , HHJ Pelling QC accepted that the misapplication of the Begum test was arguable and granted permission. The claim was settled on accepted of the homeless application and subsequently full duty by the Council.

Eryurekler v Hackney LBC. Clerkenwell & Shoreditch County Court 09/02/2010
The applicant had applied as homeless after giving up a private tenancy. In that tenancy, there was a shortfall of £25 per week between housing benefit and rent. The applicant received Income Support and child tax credit. The Council found intentional homelessness, up held on review. Neither decision refereed to the Homeless Code of Guidance para 17.40, which states that accommodation should not be considered affordable if residual income (after costs of accommodation) would be less that the level of income support (or income based jobseekers) applicable or that would be applicable if entitled to claim it.

On s.204 Housing Act 1996 appeal, the applicant argued that ‘income support’ in the Guidance should be read as including tax credits, as otherwise the applicant would be in a worse position than someone receiving income support with a childcare element, or an adult on income support with no children. The Council argued ‘income support’ should be given its natural meaning and limited to the amount actually paid to the applicant for herself.

HHJ Mitchell held that the Council’s interpretation would lead to ‘unprincipled results’ which could not have been the intention of the Secretary of State.. The decision maker was obliged to consider paragraph 17.40 and clearly had not as no reasons were given for departing from that recommendation. But the appeal was dismissed as the applicant’s unnecessary expenditure was very high, such that the rent was actually affordable.

Connors v Birmingham CC Birmingham County Court 15/01/2010

Ms C was owed the main housing duty by Birmingham. She declined an offer of permanent accommodation. Birmingham sent a letter saying it had discharged duty but gave no reasons why the property was considered suitable. On review, the review officer acknowledged the failure to give reasons, but sent a ‘minded to’ letter asking for further representations within 7 days. Ms C did not make representations in the 7 days and the decision was upheld. On appeal, the review decision was quashed. Ms C would have had 21 days to consider and respond to reasons if the original decision had contained them as it should. She had been deprived of that opportunity and setting a limit of fewer than 7 days for representations in the ‘minded to’ letter was unfair on that basis.

Our thanks as always to Jan Luba QC and HHJ Madge for gathering and circulating these cases. The May issue also contains a useful article by Robert Latham on the new TSA regulatory framework. However, there is a suggestion that the TSA might not be long for this world, making it probably the shortest lived housing regulator ever. We shall see.

Print This Post Print This Post

Advice and assistance

Published
by
NL
on 03/02/2010
in FLW case note, Homeless and Housing law - All
. 0 Comments

R(Savage) v LB Hillingdon [2009] EWHC Admin 88 [not on Bailii yet, available on Lawtel].

Ms S applied to Hillingdon Council as homeless following a possession order on her private rented accommodation on grounds of rent areas. Hillingdon provided temporary accommodation then found she was homeless, eligible and in priority need, but intentionally homeless (it didn’t help that Hillingdon housing advice had previously told her to set up a direct debit for her rent). Ms S did not ask for a review and it was accepted that she was intentionally homeless.

Hillingdon’s s.184 letter quite rightly stated that Hillingdon had a duty to offer her ‘advice and assistance’ to find her own accommodation. Ms S contacted their housing options team. She was then told that she was not eligible for the finders fee scheme (in which the council provides the deposit/rent in advance on a private tenancy up to £1500) because she was intentionally homeless.

Ms S, via solicitors, first sought a late review – which was refused – then, once evicted from temporary accommodation and once social services had said that they would take her son but not accommodate her, and on a further refusal to provide fee finders assistance, she applied for JR of the refusal to consider her for the fee finders scheme. Interim relief included accommodation, continued on permission.

The Claimant argued that
i) the Council did not carry out any proper assessment of C’s housing needs in accordance with s.190(4) Housing Act 1996
ii) The Council failed to provide any or proper advice and assistance to C pursuant to s.190)2)(b) HA 1996
iii) The Council adopted a rigid approach or fettered its discretion with regard to the advice and assistance provided, including in regard to the fee finders scheme.
iv) the Council had failed to secure accommodation ‘for a reasonable period’, pursuant to s.190(2)(a) HA 1996.

Hillingdon’s argument was
i) the issues raised could have been raised on s.202 HA 1996 review, so JR was not appropriate
ii) excessive delay
iii) none of the Claimant’s argument were the case.

Held:
although there was no formal written assessment of housing needs, there didn’t have to be. Hillingdon has carried out the required assessment, even though it mostly pre-dated the s.184 decision. It was ‘wholly unrealistic’ to expect a wholly fresh assessment.

Advice and assistance did not have tone such as will ensure that suitable accommodation is available, s.192(2) HA 1996. S.206(1)(c) deals with the provision of accommodation under s.193 and does not qualify s.192. Advice and assistance may indeed not lead to accommodation. There may be litle advice and assistance that can be offered, but that little was offered here.

The Art. 8 argument advanced did not assist the claimant. Even when social services offered to take her son but not accommodate her, the claimant retained a choice – to remain homeless and keep the family together (!).

The Council, as shown by the s.184 letter, was well aware of the Claimant’s personal circumstances. It could not be said that they had not been taken into account.

On fettering of discretion, however, the fee finders scheme option was not considered flexibly. There was evidence that the Council had simply refused to consider her for the scheme due to the finding of intentional homelessness and advised her so. The initial decision was not reconsidered and the case was not discussed with a team leader, as set out in the Council’s policy, in the light of the Claimant’s circumstances. While the policy was not rigid in stating that the intentionally homeless would not usually be eligible for the scheme, the policy was applied as if it were rigid. In this respect the provision of advice and assistance under s.190(2)(b) was unlawful.

On the reasonable length of time to be provided for the claimant to find alternative accommodation, Conville v Richmond Upon Thames [2006] 1 WLR 2808 provides that it is for the Council to decide what is a reasonable opportunity. It is not a duty to provide long term accommodation and the efforts of the applicant to find accommodation are relevant. There was no evidence that the Council had applied a fixed period here, in view of the information it had about the Claimant. In fact the stated 28 days given had been far exceeded. The Claimant had had something like 8 months by the time she was evicted.

On the s.202 review issue, s.202(1)(b), raised by the Council, appears to relate to the existence or not of duties under s.184 and not with the discharge of those duties – in that case s.202(1)(f) would be otiose.

Further Conville had proceeded by Judicial review without any suggestion that s.202/s.204 was the appropriate route. However R (Ahmed) v Waltham Forest LBC [2001] EWHC Admin 540 appeared to find the opposite.

It was not necessary to decide in this case as the Council had accepted it would be helpful to have guidance on these statutory provisions and grant of permission had not been opposed for that reason. Further it was not clear that s.202(1)(b) would permit the determination of such issue on review and county court appeal.

Delay in bringing the claim did not pertain to the issue of advice and assistance – it was an on-going duty.

Overall, the Council’s failure to comply with its own policy on the fee finder scheme was unlawful and capable of remedy.

Hillingdon have amended the fee finders scheme policy in the interim. How is not stated.

Print This Post Print This Post

Intentional homelessness and badly behaved children

Published
by
NL
on 13/10/2008
in FLW case note, Homeless and Housing law - All
. 16 Comments

This is somewhat belated – I’d missed these and the court of appeal isn’t on Bailii to link to – so thanks to Legal Action for the heads up.

White v Southwark LBC [2008] EWCA Civ 792 was an application for permission for a second appeal from a s.204 appeal. Ms White was excluded from her mother’s home when she was 15. her mother said she had behaved unreasonably and broken house rules. Ms White later applied as homeless (apparently when over 18 with no settled interim accommodation – I may be wrong here). She was found intentionally homeless for her actions that resulted in her being excluded from the mother’s home.

The second appeal was on the basis that her acts while a dependent child should not have been considered as the statutory regime did not envisage consideration of either homelessness of dependent children or applications by them.

Held – permission refused. Neither statute nor authorities prevented the consideration of the deliberate acts and omissions of children even at 13, 14 or 15. This conduct can be taken into account in applications by those now non-dependent.

N v Allerdale BC Carlisle County Court 4/08/2008, on the other hand, concerned a finding of intentional homelessness based on the behaviour of the applicant’s child. Ms N was given notice to leave her private rented accommodation due to the behaviour of her son, then 14. The landlord was quite clear it was not a problem with her conduct personally.

Allerdale decided she was intentionally homeless, upheld on review. On s.204 appeal HHJ Peter Hughes allowed the appeal and varied the decision to not intentionally homeless.

  • The s.184 was silent on the acts or omissions of the applicant that had rendered her homeless.
  • The reviewing officer had failed to identify this fundamental flaw, triggering the requirements of reg 8(2) of Allocation of Housing and Homelessness (Review procedures) Regs 1999. SI no 71.
  • The correct question was not whether the applicant could show she had not acquiesced in her son’s misconduct, but whether, on assessment of the all the available material, was there material that indicated she had not acquiesced.
  • The reviewing officer should make clear that the applicant was being held responsible for the acts of another and give clear cogent reasons for this finding.
  • Where credibility was at issue, fairness meant that the reviewing officer should have personally interviewed the applicant.

(Counsel, instructed by Shelter, was my new crush, James Stark of GCN)

Print This Post Print This Post

Women's refuges and homelessness

Published
by
NL
on 17/04/2008
in FLW case note, Homeless and Housing law - All
. 0 Comments

Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378

This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.

These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.

In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.

In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.

In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.

Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.

The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later  judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996.  Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 – reasonable to continue to occupy).

Following Awua, the Court held that reasonable to occupy was not equivalent to ‘settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).

In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.

The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.

Manchester’s appeal granted. Richards’ appeal dismisssed.

The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute – an order by the Secretary of State.

The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.

(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ‘suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)

This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position

As far as I can see, there are three options from here:

i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.

ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.

iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.

The Guidelines – matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 – are at paras 49 and 50:

49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(c) her ability to afford it;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.


Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.

Martin Hodgson, instructed by Anthony Gold, for Richards.

Martin Chamberlain for the SoS.

Clive Freedman QC and Zoe Thompson for Manchester

James Findlay and Wayne Beglan for Ipswich

Print This Post Print This Post

Be good to your mother

Published
by
NL
on 05/07/2007
in FLW case note, Homeless and Housing law - All
. 0 Comments

So, Denton v London Borough of Southwark [2007] EWCA Civ 623.

This won’t take long, as the case rests almost entirely on its own facts.

Applicant, a 21 year old male, applied as homeless after being thrown out by his mother. First decision, upheld on review, was that he was intentionally homeless because his bad behaviour had led to his mother telling him to go.

The County Court apparently thought a bid of leeway should be given to a 21 year old man living with his mum – some friction and chafing at rules was to be expected, and the decision had erred in not considering the behaviour as part of a history of friction between mother going back to when he was 18 or so. The reviewer had also failed to consider the mother’s situation and actions as a cause of his leaving. (The Court heard the argument that the son was entitled, as an independent person, to distance himself from his mother’s rules) Decision overturned as Wednesbury unreasonable.

The Court of Appeal gave this idea a sound spanking and send it to bed without any supper. The rules set by the mother for living in the home were not excessive or unduly harsh. It would have been reasonable for the applicant to remain in the property if it were not for his behaviour, and the mother was indeed prepared to have him back if he behaved. The Authority’s failure to make further detailed enquiries was not unreasonable and did not give a basis for a public law based challenge. And, the Court emphasised, this judgment did not set any general principles for dealing with situations where a young person leaves or has to leave the family home.

Print This Post Print This Post