Ain’t no going back – revisiting previous homeless decisions

Godson v London Borough of Enfield (2019) EWCA Civ 486

This is a rather odd second appeal, brought by Mr Godson in person. The brief facts were that Mr G was in temporary accommodation after Enfield accepted that it owed him the full housing duty under s.193 Housing Act 1996. Enfield then offered him a tenancy of another property, with the requisite warning that a refusal of a suitable property would mean the end of their duty. Mr G refused. Enfield discharged their duty and terminated the temporary accommodation. Mr G sought a review of that decision, the review upheld the decision. There was no further appeal. Mr G and family were evicted from the temporary accommodation.

Mr G and family then spent about 2 years in a B&B. Mr G then made a further homeless application to Enfield. He was provided with emergency accommodation until Enfield decided that he was intentionally homeless by reason of being evicted from the previous temporary accommodation. A review and s.204 appeal of that decision upheld it. Mr G made a second appeal to the Court of Appeal.

Mr G argued that:

i) he could challenge the lawfulness of the first termination of duty within his subsequent homelessness application

ii) the council was not entitled to terminate its duty on the first homelessness application as it did; and

iii) the termination of temporary accommodation on his refusal of an offer of a tenancy did not make him intentionally homeless because it was unlawful.

The Court of Appeal held:

On i), following Tower Hamlets LBC v Rahanara Begum (2005) EWCA Civ 116, that “Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later.”

Mr G’s attempt to argue that the lawfulness of the offer of the tenancy was not capable of review under s.202 did not go anywhere, because even if that were so (and see below), the discharge of duty was certainly subject to review and appeal, and that would have encompassed the lawfulness of the offer. (Suitability of the offer is, of course, subject to s.202 review, but that was not the issue).

On ii) Mr G argued that being accommodated in the temporary accommodation under the s.193 duty meant that he was no longer homeless. He had not become ‘homeless’ again from that accommodation, so the offer of the tenancy was not in discharge of the s.193 duty and Mr G could refuse it without consequence. This bold (in the Yes Minister sense) submission unsurprisingly failed.

there is a distinction to be drawn between discharging a duty (in the sense of bringing to an end) and performing it. Section 193 (3) is explicit. Once the duty is triggered by section 193 (1), Enfield remained subject to the duty until it ceased under the remaining provisions of that section. There is no other way in which the duty may be brought to an end.

The refusal of an offer brought the s.193 duty to an end. Being in temporary accommodation did not.

And then on iii) was it reasonable for the council to expect Mr G to continue to occupy the temporary accommodation, such that his decision made him intentionally homeless from it?

Yes.

The key point, in my judgment, is the reviewing officer’s conclusion that at the time of the offer the accommodation at 21c Bury Street was suitable accommodation that was available to Mr Godson; and that it was reasonable for him to continue to occupy that accommodation. Whether it is reasonable for someone to continue to occupy accommodation depends, at least in part, on how long they are expected to stay there. But there is nothing in the Act to preclude an authority from deciding that it is reasonable for an applicant to continue to occupy accommodation which is temporary: R (Awua) v Brent LBC at 68 per Lord Hoffmann, approved in Birmingham CC v Ali (2009) UKHL 36, [2009] 1 WLR 1506 at (41), and followed in Muse v Brent LBC at (8). Equally, accommodation may be suitable for temporary occupation even if it is not suitable for more permanent accommodation: Birmingham CC v Ali at (47). A person who is entitled to occupy suitable temporary accommodation is not homeless: R v Brent LBC ex p Awua at 67; Muse v Brent LBC at (35); Haile v Waltham Forest LBC at (48). The question under section 191 (1) is whether it was reasonable for Mr Godson to stay in the temporary accommodation at 21c Bury Street while Enfield considered his application and, if appropriate, looked for more suitable accommodation: Haile v Waltham Forest LBC at (21). It was, therefore, open to the reviewing officer to conclude that it was reasonable for Mr Godson to continue to occupy the temporary accommodation at 21c Bury Street until such time as the accommodation at 28B Church Street was made available to him.

Appeal dismissed on all grounds.

Comment

I’m not sure that this makes any difference to anything, apart from illustrating why legal advice can avoid wasting court time, but there we are, it is a Court of Appeal decision.

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 +.
Posted in Homeless, Housing law - All.

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