Haile v Waltham Forest LBC  UKSC 34 is the second of the triptych of cases which are before the UKSC (We have yet to have the outcome of the third one, the eligibility appeals in Samin/Mirga). The first, Johnson/Hotak/Kanu, as NL wrote, is particularly significant because of its reworking of the vulnerability test, overwriting encrusted CA decisions. Haile, on the other hand, attempts to steer a line between accepting the jurisprudence on intentionality but distinguishing it on a narrow basis (Lord Reed, with whom Lord Neuberger, Lady Hale and Lord Clarke agreed – Lord Neuberger, in the majority, doing so with hesitation, at ; Lord Carnwath dissenting). Johnson/Hotak/Kanu will involve reworking vulnerability decisions and will undoubtedly provoke further litigation on the SC test. In theory, at least, Haile should not involve any great difference or require reworking; but, as I will try to explain, its consequences may well reverberate just as much as Johnson et al. Indeed, despite the best intentions of the majority, I think further litigation is almost inevitably the outcome.
We covered the facts and the Court of Appeal decision before (in which I held myself as hostage to fortune, concluding that, as regards the further appeal, “I fear that it is a hopeless cause” – thanks to SJM and Iain Wightwick for reminding me of that). In essence, Ms Haile left her tenancy of a bedsitter because of smells in the hostel. She was pregnant at the time she left. She subsequently had the baby. She was found intentionally homeless because her reason for giving up the accommodation (the smells) was rejected; her further argument on review, that she would have to have given up the accommodation anyway (because the accommodation was only for her), was regarded as irrelevant.
That was on the basis of the House of Lords decision in Din v Wandsworth LBC and the Court of Appeal decision in Dyson v Kerrier DC. This is, or was, the conventional approach. At the date of the decision, one looked at the causes of why the applicant left their last settled accommodation and whether there had been any intervening accommodation or act sufficient to break the chain of causation. Thus, in Din, the family were in significant rent/rates arrears and left their accommodation after a distress warrant had been served on them, but they were not at that time threatened with eviction (against the advice of the local authority) and took temporary accommodation. Their intentionality was caused by the act of leaving the accommodation , and the hypothetical that they would have to have left anyway was neither here nor there. As Lord Reed explains that decision in Haile, , “… if the definition was satisfied as at that time, it was irrelevant to that question to consider whether, if the applicant had not ceased to occupy the accommodation, it would have ceased to be available for his occupation by the time of the authority’s inquiry. I can say at once that, in relation to those matters, the decision appears to me to have been correct and to remain good law”. On that conventional view, which the majority accepted in Haile, the fact that Ms Haile had her baby subsequently was neither here nor there to the decision for the authority. But, the majority overturned the local authority’s decision.
The keys to the decision, it seems to me, are two points. The first is that one should give a purposive construction to the intentionality provision (see for example , . Its purpose is to stop applicant’s queue jumping. To my mind, that is a rather simplistic narrative behind the provision, but that is the way the courts have constructed it since Dyson. The second point is all about timing. There are two points at which causation needs to be considered. The first is the s. 191 question – did the deliberate act or omission cause the homelessness? However, the next is the s. 193 (and s. 202) moment, ie the decision as to duty requires a decision as to whether the applicant’s current homelessness was caused by that intentional conduct (see ). As Lord Reed puts it:
[S]ection 193(1) cannot be concerned only with the reason for the loss of accommodation which the applicant occupied immediately before he became homeless. If that were its effect, the legal consequences of becoming homeless intentionally could readily be avoided by obtaining temporary accommodation, so that the applicant ceased for a time to be homeless, and then waiting to be evicted from it, so bringing about a state of homelessness consequent on the involuntary loss of that accommodation. The aim of the provisions relating to intentional homelessness would then be circumvented. 
There are a number of subsidiary points made by Lord Reed at -: (1) the reaction to Puhlhofer involved symmetry being produced between homelessness and intentionality; (2) the affordability regs meant that the concession made in Din (which was probably wrongly made even at that time) that the family could have remained in the accommodation would not be made today; (3) in Birmingham CC v Ali, the House had held that the expression “reasonable to continue to occupy” meant that one needed to look to the future as well as the present; and (4) the s. 202 review meant that the relevant date was the date of the review decision itself (cf Lord Carnwath’s interesting point at ).
The analysis of Din by Lord Reed is also instructive. It is clear that it was always problematic – Lord Reed cites Lord Bridge’s comment on the concession that the Din’s temporary accommodation meant that the homelessness was continuous when they had an express or implied licence to occupy – the appeal was therefore decided “on a basis accepted as common ground which involved an erroneous conclusion of law from undisputed facts”. The appeal also proceeded on the basis only of the first causation question. But Lords Wilberforce and Fraser appeared to be crystal clear that hypotheticals were irrelevant. Lord Fraser appears unequivocal on this point:
It is … irrelevant for an applicant who is homeless at the date of his application, and who became homeless intentionally, to show that he would have been homeless by that date in any event. The material question is why he became homeless, not why he is homeless at the date of the inquiry. If he actually became homeless deliberately, the fact that he might, or would, have been homeless for other reasons at the date of the inquiry is irrelevant.
Not so, apparently. That passage needed to be read with an earlier passage in which he had clearly also argued for a continuing causal connection between the intentionality and the homelessness existing at the date of the inquiry.
All of this tended to justify the subsequent authorities – R v Basingstoke and Deane BC ex p Bassett (1983) 10 HLR 125; R v Brent LBC ex p Awua; R v Harrow LBC ex p Fahia; R v Camden LBC ex p Aranda (1997) 30 HLR 76; R v Hackney LBC ex p Ajayi (1997) 30 HLR 473 – in which different acts were said to have broken (or had the potential to break) the chain of causation from the earlier intentionality. Having to leave temporary accommodation because of fire, refusal of housing benefit to pay, relationship breakdown etc. Lord Reed’s explanation of these decisions is pivotal to the decision, and is what Lord Carnwath dissents on. Lord Reed, at -, says
55. The cases of Bassett, Fahia and Aranda are capable of being explained, as Lord Carnwath suggests, on the basis that the immediate cause of the applicant’s homelessness in each case was an event unconnected to the temporary nature of that accommodation. That aspect of the cases is not however sufficient in itself to provide a satisfactory explanation of the decisions. If, for example, an applicant deliberately gives up a secure tenancy, and takes on a short lease of temporary accommodation following which she is likely to be homeless, as in the case of Dyson, why should it necessarily be decisive whether her occupation of that accommodation comes to an end on the expiry of the lease, on the one hand, or one day earlier, as the result of marital breakdown, on the other hand? The importance of the marital breakdown, so far as the purposes of the legislation are concerned, is not that it resulted in a slightly earlier cessation of occupation of temporary accommodation than would otherwise have been the case. It is important because it is an involuntary cause of homelessness which may be regarded in certain circumstances as interrupting the causal connection between the applicant’s current homelessness and her earlier conduct, for example in surrendering a secure tenancy.
56. One situation where that is so is where, applying the words of Brightman LJ in the case of Dyson which were cited in para 30 above, it cannot reasonably be said of the applicant that “if she had not done that deliberate act she would not have become homeless”. Giving the legislation a purposive application, she has not therefore jumped the queue as a result of her earlier decision to surrender the tenancy. That might be the position, for example, in a case where a marriage broke down at some point after the couple had left secure accommodation, if it appeared that the marriage would probably have broken down, and the applicant would have been rendered homeless, in any event. The ordinary requirement that the cause of an event should be a sine qua non of that event would not then be satisfied.
57. Another situation where deliberate conduct in giving up earlier accommodation may not be regarded as the cause of current homelessness is where homelessness would probably not have occurred in the absence of some other, more proximate, cause, which arose independently of the earlier conduct: where, as it is sometimes put, there is a novus actus interveniens. That is again consistent with the purpose of the provisions concerning intentional homelessness, which is to prevent queue-jumping, not to deter people from moving out of secure accommodation. As counsel for the appellant submitted, that purpose does not require the adverse treatment of those who move out of secure accommodation and are subsequently rendered homeless by an event which is unconnected to their own earlier conduct, and in the absence of which homelessness would probably not have occurred.
By way of conclusion, Lord Reed seeks to simplify the conclusion by reference to a “but for” test (). Din did not need to be overruled (although they came as close to doing so as is possible: it concerned a “relatively narrow issue”, ; “… an early case in the history of the law on this subject”, ). The key point is that “… any consideration of intentional homelessness arises after it has been decided that a person is homeless, and looks backwards to determine the operative cause of that homelessness” (). I am afraid that this is deceptively simple and there are going to be fine-grained, detailed workings out of precisely what is meant by all this. It also appears to have been the case that the majority went off on a jurisprudential frolic of their own. Lord Carnwath said, in rather biting fashion, “Lord Reed has undertaken his own re-analysis of Din in a way which had not suggested by the parties before us, nor (to my knowledge) by anyone else in the three decades since it was decided. While he makes some interesting points, I find it hard with respect to accept that such a re-analysis is desirable or necessary” ().
On the facts, the reviewing officer had not considered whether the cause of Ms Haile’s current state of homelessness was her surrender of her tenancy of the bedsit. The baby’s birth meant that she would be homeless whether or not she left the hostel when and for the reasons that she did: “She had not therefore jumped the queue as a result of her earlier decision to surrender the tenancy” (). There is also an interesting little passage at :
It is not apparent whether consideration was given [by the reviewing officer] to the question whether the authority could have considered an application and found suitable accommodation within the four months or so before the baby was due. That has not however been made a ground of challenge: on the contrary, it was conceded that the review officer was right to accept that the accommodation was reasonable for the appellant to continue to occupy until she gave birth.
We have been scratching our heads at NL towers a bit. I mean we get kind of stuck between hypotheticals and factual hypotheticals. It is going to take a little time and not a little public money to resolve these. I think the majority’s reasoning is rather simplistic and potentially opens up the intentionality ballpark to any kind of intervening act which might have impacted on the original cause (even though we couldn’t possibly say so with any degree of certainty). Anyway, in the meantime, with congratulations to Kerry Bretherton and Laura Tweedy (I think), I’m off to eat my hat.