01/12/2020

Intervening but overcrowded accommodation

Bullale v City of Westminster Council [2020] EWCA Civ 1587

An important Court of Appeal judgment on when intervening accommodation is settled so as to end the effect of a previous finding of intentional homelessness, including a careful revision of Doka v Southwark London Borough Council [2017] H.L.R. 786 (our report here) in view of the Supreme Court’s statement when refusing permission to appeal.

Ms B and her three daughters had been given temporary accommodation as homeless by LB Hammersmith and Fulham in 2015, in a hotel/B&B. Ms B was offered accommodation in Barking, refused it, and LBH&F discharged duty on the basis that it was suitable at the end of 2015. Ms B spent a few months living with friends, then in September 2016 obtained an assured shorthold tenancy of an HMO room in a property in City of Westminster.

Flat 7 Bravington Road in London (which was in the area of Westminster City Council). The term was for 1 year at a rent of £302.33 a week. The property comprised a single room, with a kitchen area, and containing bunk beds and a mattress. There was a toilet and shower room shared with other residents (there being 10 such flats at the property). The appellant lived there initially with her two younger daughters and was joined by her eldest daughter. Hammersmith and Fulham provided financial assistance to pay the deposit. The rent was paid from housing benefit and discretionary payments made by the local authority.

This was, by any standard, overcrowded. In October 2016, Ms B moved to flat 9 Bravington Road. This was also a one room studio flat, but slightly larger, with a rent of £302.33 per week. It was, by any measure, still overcrowded.

Ms B:

contends that the landlord knew at the outset that the flat would be occupied by her and her three daughters. The review officer in her decision accepted that. There is a letter dated 13 February 2017 from the director of the landlord stating that the property had been let on the understanding that the appellant and one daughter only would live there. The letter stated that the appellant and her three daughters now lived there and the property had become severely overcrowded. The letter said either two daughters would have to leave or the premises would have to be vacated. We were told a notice seeking possession was served in June 2017. In any event, the landlord did not seek to recover the property at that stage. The appellant and her three daughters continued to live there. The tenancy continued as a periodic tenancy after the end of the agreed term.

In fact it was not until February 2018 that a s.21 notice was served. A possession order was made in May 2018 and Ms B evicted in November 2018. She applied to Westminster CC as homeless.

Westminster found that she had become intentionally homeless in 2016 on her refusal of suitable alternative accommodation and that the Bravington Road flat was not settled accommodation as it was overcrowded so could not be seen as suitable. Ms B sought a s.202 review. The review decision upheld the decision, statting

“12. I have considered your submissions, and I am not satisfied that the accommodation at Flat 7, 180 Bravington Road, London W9 constitutes settled accommodation. As stated above, the accommodation was a studio flat, that was occupied for 4 people, 2 of whom were adults. The accommodation was statutorily overcrowded, from the onset of the tenancy, I am satisfied that the level of overcrowding rendered the accommodation unreasonable.
13. I acknowledge that both Hammersmith and Fulham Council and the landlord were aware of the family size when they moved into the property However, I am not satisfied that this fact renders the accommodation suitable. As stated above the accommodation was severely overcrowded from the onset. I am therefore satisfied that it was unreasonable for Ms Bullale to occupy.
14. Although I acknowledge that Ms Bullale resided in the property for 2 years, I do not accept that the length of time she spent in the property makes the accommodation any more settled. Firstly, I cannot consider the length of time Ms Bullale spent in the property in isolation and have to consider all the facts of her case together. I am also aware that it is possible to occupy insecure, unreasonable or temporary accommodation for an extended period.”

Ms B appealed to the County Court under s.204 Housing Act 1996, but the appeal was dismissed. Ms B appealed to the Court of Appeal.

The Court of Appeal set out the determining factors in assessing whether intervening accommodation could be ‘settled’ so as to break the chain of causation from an instance of intentional homelessness:

the factors that may be relevant include the basis on which the accommodation is occupied (whether it is occupied under a lease or a licence), the expectations of the parties as to the period of occupation, whether the arrangement is a commercial one or one between family members or friends, its affordability, whether the accommodation is overcrowded, the context in which the person concerned took the accommodation (in particular whether it was done with a view to a subsequent application for accommodation) and any other relevant factor. (…)

in assessing whether accommodation is settled it is necessary to have regard to all relevant circumstances “bearing in mind the purposes of the legislation”. The legislative purpose is to prevent persons who, having become intentionally homeless, would by obtaining temporary accommodation obtain priority in the provision of housing to which they are not entitled (see per Lord Reed in Haile v Waltham Forest London Borough Council [2015] AC 1471 at paragraphs 61 and 22).

Then the Court of Appeal turns to Doka v London Borough of Southwark [2017] EWCA Civ 1532 and the Supreme Court’s comments in refusing permission to appeal.

Both parties drew attention to the terms upon which the Supreme Court refused permission to appeal. The Supreme Court considered that the applicable principles were authoritatively established in the cases of Din v Wandsworth London Borough Council and Haile v Waltham Forest London Borough Council and this was not a case where they needed to be reviewed “even though there may be errors in the reasoning in the Court of Appeal, which should not be treated as authoritative”.

This is not a case where it is necessary to consider the status of a decision of the Court of Appeal in circumstances where permission to appeal is refused in those terms for this reason. In Doka, Patten LJ, with whom Lord Briggs agreed, said that:

“What the applicant needs to establish is a period of occupation under either a licence or a tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed”.

In my judgment, the ratio of the decision is contained in the first part of that sentence, that is, that the person must establish a period of occupation which is likely to continue for a significant or indefinite period. That approach is consistent with the existing case law of the Supreme Court and of this Court. The ultimate question is whether the causal link between the earlier and the later periods of homelessness has been broken. One situation where that may occur is where there has been a period of settled, or non-temporary accommodation after the earlier homelessness. Whether that is the case is a question of fact and degree to be determined having regard to all the facts of the case and bearing in mind the legislative purpose. The reference in the second part of the sentence to whether the applicant’s position was more precarious than it was previously is a description of the consequences on the facts of that case of applying the established approach. I do not read the judgment as requiring the court to carry out some kind of comparison of the precariousness of the earlier and the later accommodation in order to determine if the causal connection between the two has been broken. That does not form part of the ratio of the decision. Both parties submit, and I agree, that the observations of the Supreme Court were directed at that part of the judgment. In the circumstances, as that element of the reasoning does not form part of the ratio, it is not binding. It is not necessary to consider what the status of the observations would be if they were part of the ratio of the decision.

That said, the Court of Appeal turned to the review decision in the present case.

The review officer had wholly focused on the accommodation being overcrowded, without any further consideration.

The review officer has not considered all the relevant facts to determine whether, as a matter of fact and degree, and bearing in mind the purpose of the legislation, the accommodation at Bravington Road was in fact a settled arrangement not a temporary one. The review officer does not refer to the nature or length of the tenancy of 9 Bravington Road or the circumstances in which the tenancy was granted. There is no reference to the fact that it was a commercial relationship or that a tenancy agreement of just under a year was entered into after it was made clear to the appellant that she would not be eligible for assistance from the authority (and not as a means of enabling her to apply for assistance from the local authority). The review officer does not refer to the fact that the rent was affordable and paid from housing benefit and discretionary assistance.

Secondly, it is not enough simply to identify a potentially relevant factor. It is necessary to identify how that factor is relevant to the question of whether the accommodation is settled or temporary. In the present case, there is no real analysis either of the relevance of the overcrowding on the facts of this case or its relationship with the other factors. On the facts as accepted by the review officer, the landlord, the previous local authority (Hammersmith and Fulham), and the tenant all knew at the outset that the flat would be occupied by four people when the appellant moved in: see paragraph 13 of the decision letter. Hammersmith and Fulham provided a deposit. The rent was paid for out of housing benefit and discretionary payments made by the local authority. I do not accept that in those circumstances, the arrangement was doomed to fail or that the landlord would inevitably have sought to recover possession. It may well be that the accommodation, unsuitable though it was, was the best that the appellant could find for herself and her family, given their limited financial resources and the shortage of accommodation in London. The overcrowding in the flat would not necessarily mean that the accommodation would be temporary.

Thirdly, the review officer does not relate the overcrowding to the other factors to assess whether those other factors mean that, taken overall, the accommodation could properly be seen as temporary or not settled. In paragraph 14, the review officer acknowledges that the appellant spent two years in the property but did not consider that that made the accommodation any more settled. No explanation for that view is given. The review officer says that she cannot have regard to the length of occupation alone but must look at all the facts of her case. That is correct – but she does not, however, refer to any other facts (other than the overcrowding previously referred to). The review officer states that she is aware that it is possible to occupy insecure, unreasonable or temporary accommodation for an extended period of time. That may be correct but does not provide an analysis, or explanation, of why the accommodation in this case was temporary rather than settled. Nor does the review officer consider all the relevant facts, including the tenancy, the length of occupation, the commercial nature of the relationship, and the basis upon which the property was let (i.e. that it was known that all four family members would be living there or, at the very least, that was known from February 2017).

Appeal allowed and decision quashed.

Comment

Well, thank goodness for that. The apparent finding in Doka was, as we noted at the time, deeply troubling.

“for someone who lost a secure or assured tenancy, the court of appeal’s decision would suggest that they can never have ‘settled accommodation’ sufficient to break the chain of causation again, as any PRS tenancy would be more precarious than a secure or assured tenancy. This is, frankly, ridiculous. It is also not what the prior case law says. Not even Knight v Vale.”

Clearly, the Supreme Court was also troubled, though not sufficiently to give permission to appeal. And now the Court of Appeal has managed to helpfully distinguish the troubling part of Doka as technically obiter and not binding.

In the context of housing in London, the judgment is also a helpful recognition that taking a tenancy of accommodation that will be overcrowded from the outset is not necessarily (if ever) a matter of choice, whatever the review officer might have thought, and that it is often a long term and potentially ‘settled’ situation.

 

 

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.

1 Comment

  1. Ben Reeve-Lewis

    ” a helpful recognition that taking a tenancy of accommodation that will be overcrowded from the outset is not necessarily (if ever) a matter of choice”. Spot on observation of the reality of renting for people on low incomes in London particularly and glad to see it recognised in Part VII.

    Reply

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