Hemans & Anor v Windsor and Maidenhead Royal Borough Council (2011) CA Civ Div 2 March 2011 [Lawtel note of extempore judgment. Not on Bailii yet]

This was an appeal by Windsor of the first appeal of a Housing Act 1996 s.202 review decision  that it was reasonable for the wife to continue to occupy a private sector property, so that she was not homeless. At issue were:

i) whether a private sector tenancy that had been arranged for a wife by another local authority, following an incident of domestic violence, could be said to be available to the husband, following their reconciliation.

ii) whether the review officer was entitled to find that the circumstances in which the wife came to occupy that property were irrelevant.

The husband and wife, with their daughter, originally lived in army accommodation on Windsor’s area. The husband was a soldier and the wife worked locally. Following the husband’s return from a tour in Afghanistan, he experienced a breakdown. He was discharged from the army and they were given notice to quit the army accommodation. Following incidences of domestic violence, the wife and daughter were considered to be at risk and placed  in a refuge by the social services department of another local authority. The second local authority then accommodated the wife and daughter in a two bedroom house under an AST. The wife was granted a one year break by her employer. The husband underwent treatment and he and the wife wished to reconcile and for him to live with her. They applied as homeless to Windsor.

Windsor decided the wife was not homeless, that it was not unreasonable for the husband to share that accommodation, and that the circumstances concerning the wife’s departure were irrelevant in considering the suitability of her current accommodation. This was upheld on review.

On first s.204 appeal, the Judge found that the accommodation was not available to the husband, for the purposes of of s.175(1)(a), s.175(1)(b) or s.175(1)(c),  so that he was homeless. On the other hand, the Judge rejected the argument that the wife was homeless because it was unreasonable to expect her to occupy the two-bedroom house when that accommodation had always been intended to be temporary, that she had been placed there by social services for child protection reasons, and she would be unable to care properly for their daughter if she returned to her job some distance away.

On appeal by Windsor (and cross appeal by the applicants), the Court of Appeal held that it was clear that the husband and wife wished to re-unite, by making a joint homeless application. The wife had therefore implicitly consented to the husband living with her, which amounted to a licence for the husband to occupy the two bed private accommodation. There was no statement from the wife to the effect that she wished to be reconciled subject to the condition that the husband never stay at the property. The Court below had therefore erred in finding that the husband was homeless.

However, while noting that in determining the lawfulness of a review decision, the approach should be a ‘fair’ one, not technical (Holmes-Moorhouse v Richmond upon Thames LBC (2009) UKHL 7), in the present case, the review officer had misdirected himself in considering the circumstances in which the wife had come to occupy the two bed property as being irrelevant. That went to the heart of the decision as to whether it was reasonable for the wife to live in that property. The Judge below was in error to accept that the circumstances were irrelevant. The review decision was therefore fundamentally flawed and was quashed.