Oduneye v Brent London Borough Council (2018) EWCA Civ 1595 (not on Bailii yet – judgment on Lexis)

This was a second appeal from a s.204 appeal on Brent’s decision that Ms O was intentionally homeless. Ms O was in person. She had sought an adjournment to seek legal representation but this was a fortnight before the hearing and refused on the basis that she had known of the appeal hearing since permission on 21 October 2017.

Brent had found Ms O intentionally homeless on the basis that she had failed to respond to a request for further information which would have enabled her to continue to receive housing benefit for her secure tenancy and failed to pay the shortfall between the rent and her housing benefit when it was in payment.

By 2010, Ms O had arrears of £1900. She then started receiving jobseekers allowance and housing benefit. IN January 2013, the council received information that Ms O was self-employed and the DWP confirmed that JSA had stopped in December 2012. The council asked Ms O for means information to assess her claim. This was not provided in time and HB was ended with a letter setting out appeal rights. No appeal was made. Ms O’s MP then contacted the council and in June 2013, some information was provided and Ms O told to make a fresh claim. She did so in September 2013 and HB was backdated from March to December 2013, to give her time to provide the further information needed. This was not provided and HB ceased in December 2013.

Following a further letter from her MP in February 2014, Ms O was again invited to reapply, and to provide the information sought and how her self employment supported her. The information was not provided and the claim closed in April 2014, again no appeal was made. In September 2014, Ms O made a complaint about the handling of her claim and was told she could appeal late and it would be considered. No appeal was made.

Arrears had accrued and Ms O was evicted on a possession order in April 2015. On the same day she made an application for HB, providing information, and a request for a backdate. An award of HB was made, backdated to October 2014, totalling £3100 paid to the landlord. In May, Ms O went back to the council again and obtained a further HB decision for the period December 2013 to June October 2014, with a further payment of about £5,400 made to the landlord.

Ms O complained to the council about the handling of her HB claim and her eviction. The complaints were dismissed, outlining the history above. Ms O took it to the LGO, who investigated, found that the arrears would still have been about £2,000 so possession was still likely and there was no fault in the council’s actions.

In the meantime, Ms O applied to Brent as homeless, with the result of the intentional homelessness finding, upheld on review.

On her s.204 appeal, Ms O, represented by counsel, argued that

The back payments of nearly £9,000 showed that the council had had the required information to process her claim but had failed to do so.  Further such back payments could only have been made on the basis of official error. The homelessness inquiries had failed to address this.

Possession had been granted on arrears of £11,000 and the review officer could not reasonably decide that possession would have been granted on arrears of £2,000

The review officer’s decision was irrational as she failed to take into account that Ms O could not provide the accounts the council had requested for her HB claim when her business had not yet started trading.

The review was procedurally unfair as Ms O could not access her documents which were sealed in her former home.

The first instance judge found:

It could not possibly be said that the Council failed to make proper enquiries. To the contrary, the history showed that the Council did make proper enquiries and it took all relevant matters into account. Secondly, the reviewing officer was entitled to take into account both parts of the arrears, that is to say the part which was satisfied by the back-payments of over £9,000 and the part which remained after those payments had been made. Thirdly, there was nothing irrational about the reviewing officer’s approach or the findings she made. She took into account all of the matters upon which Ms Oduneye relied. And fourthly, there was nothing unfair about the process adopted by the Council. Ms Oduneye was given ample opportunity to make representations in support of her review request and no reason had been given for her failure to approach her landlord for access to the property if she needed to recover documents to support her position.

Ms O appealed to the Court of Appeal and was given permission. Ms O sought to rely on all of the same grounds and Gloster LJ’s reasons for giving permission, which was that it could be said that the first instance judge had not addressed the argument that the back payments of £9,000 showed official error and that if so, Ms O was not responsible for the accrued arrears and so not intentional homelessness. Ms O also sought to argue she had not been given a fair hearing at first instance.

The Court of Appeal was not impressed.

Ms O had been given plenty of opportunity to pursue her HB claim and to put it in order, missing an appointment, failing to respond to a letter or appeal in 2014 and then failing to take up an offered late appeal in 2015.

The backdated awards of £9000 had been made, but had then been cancelled as having ben made in error, although it had been decided not to reclaim them. When Ms O was evicted her arrears were rightly £11,000 and, as the LGO noted, the landlord would have pursued possession on arrears of £2000 anyway.

What decision a court might have made on possession had the back payments been made earlier was nothing to the point, as the back payments should not have been made.

The reviewing officer was plainly entitled to rely on Ms O not having provided the information required and she gave details of her reasons. Ms O did not agree with those details, but that did not make them irrational.

Ms O had time to make submissions on review but had not said why she had not approached her former landlord to seek access to her belongings and documents.

The first instance Judge had given Ms O a fair hearing. She was represented by counsel and nothing in the transcripts suggested that counsel’s submissions had not been heard or that the Judge had ignored documentary evidence. It was true that “at one point after judgment, the judge asked Ms Oduneye to “be quiet” but that was because she was interrupting the proceedings despite being represented by counsel.”

Drawing the threads together, I am satisfied that the reviewing officer was entitled to find that the original decision was correct and that Ms Oduneye accrued rental arrears because she failed to provide the Council with the information it needed to process her housing benefit claim and because she failed to pay the shortfall between the rent and her housing benefit. The reviewing officer was also entitled to find that the property was affordable; that Ms Oduneye was intentionally homeless because she deliberately failed to pay the rent; that she lost the property as a direct result of her failure to pay the rent; that she ceased to occupy the property following her eviction; that the property was suitable for her occupation; and that it was reasonable for her to continue to occupy the property. The reviewing officer has made no error in the way she approached the issues before her.

Appeal dismissed.