[amended on 4/7/12]

This is a note of a homelessness appeal which was heard on 9/3/2012 by HHJ Worster in Birmingham County Court. The case was run by the Community Law Partnership and by counsel, James Stark, who kindly provided a transcript of the judgement.

Essex v Birmingham CC  concerns the exercise of a court’s power to vary a finding of intentional homelessness in a s.202 review decision. Mr E was the assured tenant of a property let by Midland Heart and he was admitted to hospital in October 2010 having suffered an abscess in his foot, which prevented him from signing-on at the Jobcentre, with the result that his JSA claim stopped. Once he was discharged from hospital, Mr E went to convalesce at his mother’s address, where he stayed until February 2011.

Mr E believed that despite the stoppage of his JSA claim, his housing benefit would continue. Unfortunately, he was wrong about this and with remarkable swiftness, Midland Heart served a s.8 Notice, commenced possession proceedings and obtained an outright possession order on 31/1/11. Mr E returned home to find a letter from the landlord telling him he had to be out by the 15/2/11 and that he ought to apply to the council as homeless.

Mr E accordingly surrendered the tenancy and applied to BCC as homeless with his 9 year old son daughter. BCC found Mr E intentionally homeless, Mr E requested a review and the decision was upheld on review. The review decision contained the following finding: “I do not accept that it was reasonable for you to assume that your housing benefit would continue to be paid despite the fact that you were not resident at the property for 3 months“.

On appeal to the County Court, Mr E argued that the reviewer had applied the wrong test to the issue of good faith and that it was irrelevant that the council considered his belief that HB would continue unreasonable, so long as it was honestly held.

BCC conceded in advance of the hearing that the decision was flawed but disagreed with Mr E that the Court ought to vary the decision to record that he was not intentionally homeless. BCC did not concede that Mr E assumed that HB would continue and argued that the review decision was ambiguous on this issue. This meant there were lines of enquiry open to the council and the decision ought to be quashed.

The judge disagreed and, applying LBTH v Deugi, concluded that there was no real prospect that any further enquiry might satisfy the council that Mr E was intentionally homeless. Interestingly, the judge found that BCC was not entitled to the benefit of the doubt in the review decision (in a Holmes-Moorhouse sense). The finding that Mr E assumed that HB would continue was carefully reasoned, it was not ambiguous and there was no suggestion of any impropriety on Mr E’s part. The judge therefore varied the review decision.