25/05/2011

You win some, you lose some

Oxford City Council v Bull [2011] EWCA Civ 609

In which the Court of Appeal had to consider whether the homeless applicant had made himself intentionally homeless and whether he was in priority need.

Mr Bull separated from his wife in June 2009 and left the home, where she was a secure tenant of the local authority, and moved into a room in a shared house. After a couple of months their three children moved in with him into the shared house. Mr Bull’s landlord then gave him notice to quit. Upon an an application to Oxford as homeless, he and the children were given temporary accommodation. Oxford subsequently issued its Housing Act 1996, s.184 decision, to the effect that Mr Bull’s children did not reside with him, and he was therefore not in priority need, and that he was intentionally homeless, as it was inevitable that NTQ would be served once he had let the children move into a property that became overcrowded. That decision was upheld on a s.202 review, but Mr Bull’s subsequent s.204 appeal was allowed by HHJ Harris QC, who varied the Council’s decision to declare that Mr Bull was not homeless intentionally and was in priority need.

Oxford appealed to the Court of Appeal. Pill, Jackson and Tomlinson LJJ allowed Oxford’s appeal on the question of intentional homelessness, but not on priority need.

Jackson LJ gave the lead judgment. Unsurprisingly there is plenty of reference to Holmes-Moorehouse (our note), and also to Mohamed v Hammersmith & Fulham [2001] UKHL 57. In this case the review decision was carried out in February 2010, some four months after Mr Bull and his children had been accommodated together by Oxford in temporary accommodation. It was clear that the review officer had got this question wrong. Jackson LJ said at [39] that:

“… Whatever may have been the position at [the shared house], once Mr Bull and the children moved to [the temporary accommodation] that was where the children resided. It was where they kept their clothes and possessions. It was their main home, from which they went to school. It is quite true that the children went to stay with their mother regularly, but that does not detract from the fact that they resided at their father’s house.”

Lord Hoffmann’s speech in Holmes-Moorehouse did not assist Oxford on this point. His analysis in that case had been concerned with the second limb of s.189(1)(b) of the 1996 Act; i.e. whether dependent children might reasonably be expected to reside with the applicant. This case turned on the first limb of s.189(1)(b) – whether dependent children did reside with him. Oxford’s appeal to the scarcity of their resources was not relevant when the first limb of the s.189(1)(b) test.

Oxford’s second ground of appeal was that HHJ Harris QC had erred in finding that Mr Bull was not intentionally homeless. Jackson LJ agreed. The judge below had reached the conclusion that Mr Bull could not have been criticised for having his children come to live with him in the circumstances, but that conclusion was inconsistent with findings of fact that the review officer had made. Allegations had been made about Mrs Bull’s ability to look after the three children, but the review officer had reached fair findings of fact that she was well able to look after them properly, and there was no necessity for Mr Bull to take the children in to live with him. The judge had erred in substituting his own finding of fact.

However, Mr Bull argued that it was not reasonable for him to continue to occupy a room in a shared house once the children had come to live with him. It was not accommodation that he could be treated as “having”. He could not be considered to be intentionally homeless from accommodation that was no longer “available” to him.

The Court of Appeal was not persuaded by this line of argument. Jackson LJ considered that the children had somewhere else to live (their mother’s house), where they could and should have lived. There was no reason for them to live with their father and they were not reasonably expected to do so. Therefore, at the point when he moved the children in with him (leading to the inevitable NTQ), they were not persons who might reasonably be expected to reside with him. As it was Mr Bull’s own conduct that had led to his having to leave the shared house, he was intentionally homeless.

Pill LJ added a further comment on the issue of intentional homelessness. In his judgment Lord Hoffmann’s reasoning in Holmes-Moorehouse was equally applicable to the question of whether a person might reasonably be expected to reside with an applicant for the purposes of deciding whether accommodation was available to them (s.176(b)). Tomlinson LJ agreed with both judgments.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

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