Chishimba v RBKC, Court of Appeal, March 25, 2013, [from a lawtel note – not on bailii yet] concerned an appeal brought by a homeless applicant. The issue was whether Ms Chishimba had become intentionally homeless.
Ms Chishimba approached the authority for assistance under Part 7. When asked about her immigraiton status she supplied the authority with a British passport. The passport was, however, a counterfeit and Ms Chishimba was not eligible for assistance. She therefore committed, at the very least, the criminal offence under s.214, Housing Act 1996.
The authority, however, were unaware it was a counterfeit passport and appear (it is not entirely clear from the note) to have accepted that she was owed the full housing duty under s.193(2) and provided her with a non-secure tenancy.
Subsequently, however, the UK Border Agency discovered that Ms Chishimba had been using the counterfeit passport and notified the authority. On being made aware of this, the authority decided that Ms Chishimba was not eligible for assistance, told her that the duty under s.193(2) had ceased and served her with a notice to quit determining her tenancy. She was subsequently evicted.
For reasons that are not clear from the lawtel note (but presumably after a fresh application was made to the UK Border Agency on human rights grounds) Ms Chishimba was granted three years leave to remain in the UK and she became eligible for assistance under Part 7. She re-approached the authority for such assistance.
The authority decided, however, that she had become intentionally homeless; Ms Chishimba had, by using the counterfeit passport, committed a deliberate act, in the absence of good faith, which had resulted in her losing her non-secure tenancy, which had been available for her occupation and which was reasonable to continue to occupy. Ms Chishimba appealed to the county court and her appeal was rejected.
On a second appeal, the Court of Appeal allowed Ms Chishimba’s appeal. The cause of Ms Chishimba’s homelessness was the authority’s discovery that she had obtained the property fraudulently. The authority was not entitled to take into account acts that occurred prior to Ms Chishimba obtaining her accommodation, i.e. it could not take into account the use of the passport to obtain the accommodation.
In any event, even if Ms Chishimba had committed a deliberate act that had led to her homelessness, she could not be found intentionally homeless because the property had not been reasonable for Ms Chishimba to continue to occupy; she was not eligible for housing assistance and should not have been provided the accommodation. Once the deception arose there was no possible justification for the continued occupation.
Comment
It is hard to know where to start with this decision. When I first read it I had to re-read it to make sure that I had understood the result. To put it mildly this is a pretty surprising decision (not only policy wise, but also legally). I’m not entirely sure what the authority did to lose this.
It is pretty trite law that the question of what act caused a person’s homelessness is one for the authority, which can only be overturned if it is Wednesbury unreasonable. Moreover, I don’t see why an authority cannot determine the operating cause to have taken place prior to the tenancy being granted. Section 191 does not provide that the deliberate act must occur after the applicant has occupied their accommodation and it would be odd if it did. On the Court of Appeal’s analysis someone who defaults on a mortgage after having obtained it fraudulently, i.e. by declaring an income that is greater than they actually receive, would not have become homeless intentionally if they subsequently lost their home because they could not afford to pay it.
Nor should there be any difficulty finding that the operating cause is the criminal or fraudulent conduct. In Stewart v Lambeth LBC [2012] EWCA Civ 753, the applicant became homeless after he was evicted for rent arrears. The rent arrears arose, however, after he had been imprisoned for dealing heroin and his sister failed to pay his rent. The Court of Appeal held that the authority was entitled to find that the operating cause of the applicant’s homelessness was his criminal conduct, i.e. but for dealing heroin he would not have been imprisoned and would have been able to pay his rent.
In this case it was plainly open to the authority to determine that the operating cause of Ms Chishimba losing her non-secure tenancy was the fact that she had obtained it fraudulently. But for committing fraud she would have been able to remain living in the property and she would not have lost it. Yes, it was only when the fraud was discovered that the steps were taken to evict her, but the cause of those steps was the fraud not the discovery of it.
The second basis for the decision is even more hard to comprehend. In Birmingham CC v Qasim [2009] EWCA Civ 1080 (our note here – a case that was as equally surprising to some), the Court of Appeal held that a tenancy granted by a local authority subsisted even if it had been granted contrary to the authority’s allocation scheme (and therefore contrary to Part 6, Housing Act 1996). The unlawful act did not vitiate the tenancy because the power to grant tenancies derived from Part 2, Housing Act 1985 not Part 6.
The same must apply equally to Part 7. The power to grant tenancies comes from Part 2 and it does not prohibit an authority from granting a tenancy to someone who is not eligible for assistance. As such, Ms Chishimba’s teancy was lawful and she had every right to remain there until it was determined by a notice to quit, i.e. like anyone else occupying a non-secure tenancy. It is hard to see on what basis that accommodation could be considered unreasonable to continue to occupy.
I’d love to see a note of judgment on this because it may be that the lawtel note has done the Court of Appeal an injustice. Irrespective of that, I can safely say that Ms Chishimba’s legal team did a cracking job.
[Edit – We have changed the title after receiving an email suggesting it was causing upset to the applicant in this case. This was certainly not my intention and therefore I have changed it. That does not mean I did not think the original title was unfair or unjustified.]
My flabber is well and truly ‘Gasted’
Ceasing to occupy accommodation is not the reasonable result (Robinson v Torbay BC) of deception because an unlawful act would not vitiate the tenancy (Birmingham CC v Quasim); nor does it bring the Part VII duty to an end. There are criminal sanctions elsewhere in the 1996 Act which deals with the consequences of false statements. On the other hand ceasing to be eligible for assistance will bring the main Part VII duty to an end.
The operative cause, according to the council, was the deception but that cannot be right.
The duty under Part VII, when it ceases because a person is not eligible for assistance, comes to an end by operation of law. It does not require a decision by the local authority before the duty ceases. Either a person is eligible for assistance or he is not. So when the council accepted it was subject to the main housing duty it ceased straight away because she had ceased to be eligible for assistance -even if the council had not realised that that was the case.
Thereafter, reasonableness of continued occupation was an issue.
It does not follow that deception can never be a deliberate act leading to intentional homelessness and, according to a report on Lexis, the Court of Appeal allowed her appeal on the ground that the authority’s review officer had made two errors of law in his determination. The matter was referred back to the authority for a fresh decision.
Would like to see the judgment.
Dear me, thought I was reading the daily mail, as part of the crackpot legal team for Ms Chishimba I would suggest readers wait for the actual judgment which contains a helpful summary of cases where issues of “causation” arise in circumstances where there may be multiple causes of homelessness. In this case on the main issue, it was held that the reviewing officer erred in law in identifying the proximate cause rather than the basis “real or effective” cause which was the applicant’s lack of eligibility throughout; which was the basis upon which the section 193 duty had been discharged. As for the other arguments as said better to read the judgment rather than a five line summary on lawtel
Do you have a copy of the judgment you could let us have? We can then make a more informed posting.
Ed, as I indicated in the note, I would be grateful for a transcript because the lawtel (and the All ERs digest note) i have read may well have done the actual judgment an injustice.
As I read the notes, the CA decided the cause of her homelesness was the discovery of her ineligibility. Did they actually find it was her ineligibility all along, i.e..prior to the fraud?
P.S. I think crackpot is a little harsh. I concede you both did an excellent job. No complaints here. I was just very surprised by the result.
Better still Ed, can you give us your summary of the CA’s findings?
a couple of thoughts came to mind after reading note and comment. tyhe court was right to state
“she could not be found intentionally homeless because the property had not been reasonable for Ms Chishimba to continue to occupy; she was not eligible for housing assistance and should not have been provided the accommodation. Once the deception arose there was no possible justification for the continued occupation.”
this is not about technical legal rights needing a NTQ but whether it was reasonable to continue to occupy accommodation opbtained by fraud. this just takes the homelessness being from the accommodation prior to that obtained by fraud .
the second thought related to
“The second basis for the decision is even more hard to comprehend. In Birmingham CC v Qasim [2009] EWCA Civ 1080 (our note here – a case that was as equally surprising to some), the Court of Appeal held that a tenancy granted by a local authority subsisted even if it had been granted contrary to the authority’s allocation scheme (and therefore contrary to Part 6, Housing Act 1996). ”
the difference is that in Qasim “none of the respondents was implicated in such wrong-doing” [para5] but here that is not the case and traditionally the courts have held that “fraud unravels all”. (albeit not without exceptions)
The Supreme Court has refused RBKC permission to appeal, but commented that “the Panel [Lady Hale, Lords Toulson & Hodge] would not want to be taken necessarily to approve the last sentence in paragraph 14 of the Court of Appeal’s judgment.”
At [14] Lewison LJ had said in the last sentence:
“In my judgement the reviewing officer was wrong to extrapolate from these cases the general principle that acts committed before acquiring the accommodation could be equated with acts carried out after the accommodation had been lawfully occupied and enjoyed.”