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Nelsonian ignorance

By Dave

Iyekekpolor Ugiagbe is a dream appellant – or, rather, an appellant whose homelessness story is a dream for a neo-liberal Court of Appeal who allowed her appeal against Southwark’s finding that she was intentionally homeless (Ugiagbe v Southwark LBC, [2009] EWCA Civ 31).

Ms Ugiagbe and her two small children rented privately. Her landlord sought to terminate the tenancy. She went to the Peckham one stop shop where she was advised to go to the Southwark HPU. She was also told that they would provide temporary accommodation for her but that she should arrange for her belongings to be stored with friends. “She said she was shocked and did not want to be treated as homeless. She did not take the advice to visit the HPU”. Her landlord allowed her to stay in the property whilst she bid for accommodation under Part VI. Eventually, he asked her to go and she did.

Southwark found her intentionally homeless because, had she gone to the HPU, they would have told her that her landlord needed a court order to obtain possession. She claimed that she was unaware of a relevant fact (viz. that her landlord needed a court order to evict her) and that she had acted in good faith – thus, under s. 191(2), her act should not be treated as deliberate. The Court of Appeal agreed with her.

The question boiled down to the meaning and extent of good faith. After reviewing the case law, and referring to s. 191(3), Lloyd LJ said that the requirement of good faith “… carries a connotation of some kind of impropriety, or some element of misuse of abuse of the legislation” (at [27]). This would catch dishonesty and “wilful blindness in the Nelsonian sense comes close to that”. But Ms Ugiagbe was not turning a blind eye: “On the contrary, she had been led to think that she would be treated as within the scope of the homeless duty, and wanted to avoid that if she possibly could. Foolish or not, her subjective motivation seems to me to be the opposite of bad faith” (at [28]).

One little, but important, postscript was given by Lloyd LJ in relation to the remedy. Ms Ugiagbe had found alternative privately rented accommodation subsequent to the decision on the county court appeal, which she had lost. In breach of the “elementary rule”, her solicitors told the court but not Southwark, who only found out shortly before the appeal at which point it argued that the appeal was academic (a point dismissed, on the basis that should she become homeless again the Council might be entitled to rely on its original decision, but did affect the order to be made on appeal).

1 Comment

  1. house

    A most helpful case that I can see myself using in future section 202 reviews. Thanks Dave.


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