Amanda Carthew v Exeter County Council (2012) CA (Civ Div) 4 December 2012 [Not on Bailii, on lawtel only as a note – if anyone has more information or a transcript of judgment, we’d be very grateful…]

Where a homeless applicant had previously transferred their interest in a property to a former parter during a relationship breakdown, can the Local Authority take this as becoming intentionally homeless? Not, it would seem, without more.

This was a second appeal from a s.204 appeal. Ms C and her partner had bought a property in joint names. In 2008 they separated and made an agreement that the partner would buy Ms C’s share in the property. The partner paid £15,000 for Ms C’s share. Ms C continued to live in the property, paying the partner rent, while the partner paid all of the outgoings including the mortgage. In 2010, they reconciled and the partner moved back into the property, which was formally transferred into the partner’s name.

The relationship broke down again and Ms C left the property. She made a homeless application to Exeter CC, which refused a duty on the basis that Ms C had made herself intentionally homeless by transferring her rights to the partner when she knew it would put her at risk of homelessness. The decision was upheld on review, Exeter deciding that the relationship breakdown in 2010 did not break the chain of causation, since the volatility of the relationship meant a further breakdown was foreseeable. The causal point for her homelessness was Ms C’s transfer of property rights, not the breakdown in the relationship. The s.204 appeal against that decision was dismissed. Ms C appealed to the Court of Appeal.

Ms C argued that it was the breakdown of the relationship that had caused her homelessness. It was improper for the Authority to bring in ‘foreseeability’ into its assessment of intentionality. In addition, the Authority had failed to consider whether it would have been affordable for Ms C to remain in the property alone in 2008 meeting all the obligations as sole owner. Also, after the partner had paid the £15,000 he had a right to claim the entire beneficial interest amounting to a proprietary estoppel.

The Court of Appeal held:

The Authority was entitled to find that the relationship was turbulent, and to take into account the fact that the relationship had broken down in 2008 and within months of the 2010 reconciliation. It was not wrong for the Authority to assess intentionality by reference to the likelihood that the relationship would or might break down again, with consequent risk of homelessness.

However, the review and decision only referred to the financial situation before 2008, talking about Ms C and her partner’s joint incomes, rather than Ms C’s sole income. The Authority had not found that Ms C could afford the outgoings, including mortgage payments, on the property by herself after 2008. This was a critical defect.

The proprietary estoppel argument was unsustainable because the 2008 agreement for sale was not in writing and unenforceable and there was not enough evidence to suggest how any estoppel might be satisfied in equity in any event.

However, the failure to consider affordability for Ms C to remain in the property as a sole proprietor in 2008 meant that the review decision had to be quashed, as this was a crucial factor for intentionality.

Matter remitted to the Authority for a fresh review decision, to address affordability.

Comment

I would really like to see the full judgment because there are a number of elements in the note that leave me uneasy.

The finding on foreseeability of breakdown of a turbulent relationship strikes me as odd, not least as the agreement to transfer title to the partner, and the £15,000 payment, were made after the first break up. Ms C then rented the property for nearly two years. Technically Ms C may have retained legal title, but it isn’t clear from the note to when the Authority were dating her giving up the property. The suggestion is 2008, but it isn’t clear.

The estoppel finding also seems odd, without more. Since when did proprietary estoppel require a written agreement? Whether the other elements of an estoppel were made out, we can’t tell.

So, more information needed – and gratefully received.