Not looked into enough to be unaware

Trindade v London Borough of Hackney (2017) EWCA Civ 942

A second appeal of a homeless decision that Ms T was intentionally homeless, on the issues of whether Ms T’s actions were “an act or omission in good faith on the part of a person who was unaware of any relevant fact” as per s.192(2) Housing Act 1996.

Ms T and her disabled daughter had come to London from the island of Sao Tomé off the west coast of central Africa. She had had the tenancy of an apartment there. They came to London in February 2013 at the suggestion of Ms T’s sister, who lived in Hackney, in part for the better medical treatment for her daughter. They lived with the sister in her rented flat. In August 2013, the landlord gave notice as he wished to refurbish the flat and in September 2013, Ms T applied as homeless to Hackney.

Hackney found her intentionally homeless, upheld on review. The review stated in part:

“There is nothing to suggest that your client had an expectation that when she left Uba Flor for London she would have permanent housing in the UK. There was no offer of permanent housing made to your client by her sister which later failed due to her sister’s eviction from 19 Broad Common Estate.”

The review went on to find that while “the appellant maintained that when she left Uba Flor she had had no intention of making a homelessness application when she came to the United Kingdom and that she had acted in good faith. At paragraphs 58 to 64 of the decision, however, the reviewing officer set out his assessment that for the purposes of section 191(2) the appellant had not acted in good faith in deciding to leave Uba Flor to come to the United Kingdom. She had not even thought about or considered homelessness law in the United Kingdom when she decided to leave Uba Flor to come here. At para. 64 he wrote: “I am satisfied that your client had, by shutting her eyes to the obvious, not acted in good faith.”

On the issue of ignorance of a relevant fact, the review found:

An applicant’s appreciation of the prospects of future housing can be treated as ‘awareness of a relevant fact’ for the purposes of section 191(2) provided that it is (sufficiently) specific and provided it is based on a degree of genuine investigation, not mere aspiration. It is ignorance of a relevant fact which must not have been deliberate, not ignorance of the legal consequences.

The fact that your client did not fully explore with her sister the nature and extent of the accommodation she would be providing does not amount to a genuine investigation, and amounts to no more than a mere aspiration.

The fact that your client did not understand the English legal system in relation to being homeless is ignorance of the legal consequences and not ignorance of a relevant fact. Your client was aware at the time she left her home in Sao Tome she had not been offered permanent accommodation by her sister.”

Ms T appealed under s.204. The appeal court upheld the decision as to ‘ignorance of a relevant fact’, and found no decision on the ‘good faith’ element was therefore needed. At the first instance appeal, Ms T had argued that

i) at the time of leaving Uba Flor she did not know that her sister would be evicted from her accommodation when she was, i.e. it was put as ignorance of something which would happen in future; and (though less clearly put)

ii) that she was ignorant of a fact in existence when she left Uba Flor, namely that she did not realise that her sister could be evicted from her accommodation.

Ms T’s appeal to the Court of Appeal was on both these lines (and also on the good faith point)

The Court of Appeal was not impressed.

On the ‘ignorance of a future event’ point:

So far as concerns the submission that this phrase in section 191(2) covers a mistake about how future events transpire – the way (or the principal way) the appellant’s case was put to the judge below – I cannot accept it. The decision of this court in Najim was not decided per incuriam and is binding on us, as it was on the judge. In any event, I agree with Longmore LJ’s analysis of the operation of section 191(2) in Najim. (Najim v London Borough of Enfield [2015] EWCA Civ 319; [2015] HLR 19)

(…)

The proper approach to be derived from such authorities, and Tranckle (R v Exeter City Council, ex p. Tranckle (1993) 26 HLR 244) in particular, was summarised by Carnwath J (as he then was) in an influential passage in the Obeid case at (1996) 29 HLR 389, 398: “The effect of those judgments, as I understand them, is that an applicant’s appreciation of the prospects of future housing or future employment can be treated as ‘awareness of a relevant fact’ for the purposes of the subsection, provided it is sufficiently specific (that is, related to specific employment or specific housing opportunities) and provided it is based on some genuine investigation and not mere ‘aspiration'”. This statement of the relevant principle has been authoritatively endorsed more than once by this court: see Aw-Aden, F v Birmingham and Ugiagbe (see above).

Accordingly, an applicant who seeks to bring herself within section 191(2) where the future has not worked out as expected by her, has to show that at the time of her action or omission to act referred to in section 191(1), she had an active belief that a specific state of affairs would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration. Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of section 191(2).

On the ‘ignorance of the fact her sister could be evicted’ argument:

In my view, on the facts as found by (the review officer), he was clearly entitled to decide that the appellant had not made a proper investigation of her prospects of accommodation in the United Kingdom at the time she left Uba Flor. Therefore, her case did not fall within the scope of section 191(2). Analytically, the appellant’s case was equivalent to Aw-Aden, as the reviewing officer correctly recognised. The reviewing officer’s reference at para. 47 of the decision to the appellant’s having left Uba Flor “on a ‘wing and a prayer’ …” was plainly drawn from the judgment of Maurice Kay LJ in that case.

In view of this, the ‘good faith’ issue did not need to be decided, but in any event:

In my judgment, contrary to the submission of Mr Vanhegan, the question of good faith for the purposes of section 191(2) has to be judged within the scheme of the 1996 Act and by reference to the matters which the Act regulates. As Lloyd LJ said in Ugiagbe at (27), in a judgment with which the other members of the court agreed:

“(Subsection 191(2)) provides relief against the otherwise potentially harsh consequences of subsection (1), as Sedley LJ said in O’Connor’s case (2004) HLR 601, for those who act in relevant ignorance, but subject to the safeguard of the requirement of good faith. It seems to me that the use of the phrase ‘good faith’ carries a connotation of some kind of impropriety, or some element of misuse or abuse of the legislation. It is aimed at protecting local housing authorities from finding that they owe the full duty under Part 7 of the 1996 Act to a person who, despite some relevant ignorance, ought to be regarded as intentionally homeless. Its statutory purpose is analogous to that of subsection (3). Dishonesty is the most obvious kind of conduct which it would catch, and wilful blindness in the Nelsonian sense comes close to that. The conduct of Mr Beattie, which was considered by Webster J to amount to a device (see R v Eastleigh Borough Council, ex p. Beattie (No. 2) (1984) 17 HLR 168), is fairly seen as in the same category.”

Accordingly, what is relevant is good faith by the applicant in relation to her housing position and requirements for accommodation. Good faith in this context does not turn on whether the applicant acted (or omitted to act) with a laudable or understandable motive, judged by reference to wider social or personal concerns which have nothing to do with her housing requirements. In this case, the appellant’s laudable motive in wishing to obtain good medical treatment for her daughter does not mean that she acted in good faith for the purposes of section 191(2) when she left Uba Flor.

It is clearly relevant to the question of good faith that the appellant did not cynically leave Uba Flor with knowledge that she would be homeless in the United Kingdom and intending to make a call on the limited social housing resources here. However, in my view, if she left with reckless disregard of what her housing prospects would be in the United Kingdom, or shutting her eyes to how she would in practice meet the obvious need for accommodation when she came here (as it was put in O’Connor at (34), and see F v Birmingham City Council at (17), set out above), that would not have been an act in good faith for the purposes of section 191(2). Despite the reservations of the judge, I think that it is tolerably clear that this was the point being made by the reviewing officer in para. 64 of the decision. I also think that this was a lawful conclusion for him to arrive at.

And in conclusion, any decision on what amounted to as unawareness of a relevant fact was very likely to subsume any question of good faith. Anyone who has genuinely acted with unawareness of a relevant fact will almost always have acted in good faith.

Appeal dismissed.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

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