Johnston v City of Westminster  EWCA Civ 554
A curious case on the effect of a s.198 Housing Act 1996 referral of a homeless applicant to another Authority.
Mr Johnston had applied to Westminster as homeless in 2011.”For 7 years from 2004 until 2011 he lived in Eastbourne. In early 2011 he had to leave his rented property in Eastbourne because the landlord required it to be returned. Mr Johnston came to London because, he says, he felt harassed and intimidated in Eastbourne. He started sleeping on the streets in Victoria”. On that application, Westminster accepted that he was owed the full housing duty, but that he had a local connection to Eastbourne and none to Westminster. Mr J’s application was referred to Eastbourne. Some two years later in 2013, Eastbourne accepted the referral and a housing duty to Mr J.
Mr J sought a review, then brought a s.204 appeal of that decision. Each went against him. A second appeal to the Court of Appeal was compromised on these terms:
“Upon the Respondents having agreed to accept a fresh application from the Appellant under section 183 of the Housing Act 1996
IT is ordered by consent
1. The Appellant seeks to withdraw his application for permission to appeal which stands dismissed without further formality”.
Mr J’s fresh application was then refused by Westminster on the basis that he was not homeless, Eastbourne having accepted the housing duty and, if Mr J applied to Eastbourne, it would house him somewhere. That decision was upheld on review _
I note your comments, and I acknowledge that Mr Johnston has not been offered accommodation by Eastbourne. The fact remains that if he were to approach Eastbourne, they would make an offer of accommodation to him. As stated above, Eastbourne currently have a duty towards Mr Johnston, as such they are responsible for providing him with assistance.
At s.204 appeal, the Judge appeared to have accepted Westminster’s argument that there was, at worst, an implied licence in prospective accommodation in Eastbourne which would satisfy s.175(1)(b). Alternatively, the Judge appeared to accept that the outcome would be no different if Westminster did accept Mr J as homeless, as another s.198 referral to Eastbourne would be the result.
Mr J brought a second appeal to the Court of Appeal. The grounds were:
i) the fact that an applicant might be offered accommodation by another authority which might satisfy section 175(1) did not entitle the decision maker to find that the applicant was not homeless; and
ii) section 175(3) could not be satisfied where the relevant accommodation was hypothetical and unidentified.
The Court of Appeal agreed with Mr J. Following Fletcher v Brent LBC  EWCA Civ. 960, hypothetical accommodation could not be enough.
First, the language of section 175 (1) is simply not apt to refer to unspecified accommodation which may in the future become available, if the applicant were to apply to another authority. Section 175(1)(a) refers to “accommodation which he is entitled to occupy by virtue of an interest”; likewise Section 175(1)(b) refers to “accommodation which he has an express or implied licence to occupy”. That implies the present tense.
In the present case there was no such accommodation available to Mr Johnston at the date of the decision. The fact that Eastbourne was willing to provide unspecified accommodation did not prevent Mr Johnston from qualifying as homeless for the purposes of section 175(1).
On the apparent second basis for the Judge’s decision – that Westminster could simply have referred Mr J to Eastbourne again – this was also a hypothetical view, and it was not what had happened. It should not be the basis for the Judge’s decision.
Mr J was therefore homeless at the date of the review decision.
But the factual position remained that “once Eastbourne had accepted that the conditions of referral were met, Westminster’s housing duty towards him had come to an end and the section 193 housing duty was owed to him by Eastbourne: see sections 200(1), (2),(4) and (5) of the Act”.
There was nothing in the previous consent order, or correspondence between the parties “to support the claim that Westminster, by agreeing to accept a fresh housing application from Mr Johnston, had, for example, agreed to accept that Mr Johnston no longer had any connection with Eastbourne (whether because he had resided in Westminster for three out of the last five years or otherwise), or that the previous referral to Eastbourne was of no effect, or that Eastbourne was no longer under a housing duty to Mr Johnston”.
While Westminster’s review decision had wrongly stated that Mr J was not homeless, it had also correctly stated that Eastbourne had and continued to have a housing duty to Mr J. It followed that by operation of s.200 Housing Act 1996, Westminster no longer had a duty.
The Court of Appeal could uphold the review decision on another basis, by virtue of s.204(3), and that is what it proceeded to do, making an order:
i) dismissing the appeal;
ii) confirming Westminster’s review decision to the extent that it concluded that Eastbourne had accepted a duty to house Mr Johnston, and were under a continuing duty to house him;
iii) varying by deletion that part of the decision which concluded that Mr Johnston was not homeless; and
iv) substituting a finding that in the circumstances Westminster no longer owed any housing duty to Mr Johnston.
I’m not wholly sure what to make of this. While the decision on ‘hypothetical’ accommodation not satisfying the requirements of s.175 is surely right, the finding on the effect of s.200 would seem to give s.200 a permanent effect, so long as the notified authority continue to accept that it owes the s.193 duty. But what of a situation where there had been a change in circumstances in the intervening period? (And it took Eastbourne 2 years to accept the duty in this case!). I’m not convinced that a fresh application could, or should, be determined simply and solely on the basis of s.200 having ended the notifying Authority’s duty.