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30/11/2021

Not unaware enough – intentional homelessness in the Court of Appeal

Ciftci v London Borough of Haringey (2021) EWA Civ 1772

A second appeal to the Court of Appeal on Haringey’s decision that Ms Ciftci was intentionally homeless.

Ms C lived in Switzerland, where she had a rented flat, which was suitable and affordable for her. She is a single parent. She is a double amputee, has prosthetic legs and walks with crutches. In January 2019, Ms C ended her tenancy and together with her son moved to the UK, where she and her son stayed with a family friend. In October 2019, the family friend asked her to leave and Ms C applied to Haringey as homeless.

Ms C’s reason for the move, insofar as accepted by the review officer was that:

she moved to England because she had been told by her sister that she could stay with a family and that there was a job in the UK for her. The job that her sister had found for her was at Rainbow Meats. But it was short-lived and Ms Ciftci was unable to do the work because of her disability. The accommodation was with the Tosun family and amounted to being able to sleep on a sofa-bed with her son and their dog.

The review officer decided that Ms C had made insufficient inquiries about the nature of the work and whether she would be capable of doing it, and

“I am satisfied that you were fully aware of the need to find settled accommodation before relinquishing your tenancy. You would know that moving into someone’s living room with a child and a dog, and making the property overcrowded would be precarious and temporary.”

And further

“I am satisfied that you have not acted in good faith. Despite being fully aware of the consequences of acting in surrendering your settled accommodation you continued to do so. This despite having the capability to act appropriately.”

Ms C’s appeal (after an unsuccessful s.204 appeal), was on the basis that

i) the review officer had failed to make sufficient enquiries; and if he had
ii) the review officer should have found that that “Ms Ciftci’s plan was that she would stay in the accommodation with her sister’s friends for a period of time and then when her finances allowed move to alternative accommodation. Her misappreciation of the nature of the job and her ability to do it was a relevant fact of which she was unaware.”

The Court of Appeal was quite brief in dealing with this.

The reviewing officer had plainly asked himself the right questions as to whether there was a relevant fact of which Ms C was unaware, and whether she acted in good faith. So the issue was as to the thoroughness of the officer’s investigation.

The duty to make inquiries is to make necessary inquiries, not all possible inquiries. The parameters of such a duty were summarised in R (Balajigari) v Secretary of State for the Home Department (2019) EWCA Civ 673:

“First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge… , it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken…. Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient.”

This also applied to Part VII Housing Act 1996 inquiries – R v Kensington and Chelsea LBC, Ex p Bayani (1990) 22 HLR 406; Cramp v Hastings BC (2005) EWCA Civ 1005, (2005) HLR 48 at [58]; Williams v Birmingham City Council (2007) EWCA Civ 691, (2008) HLR 4. Further, a review was an opportunity for the applicant to raise matters, and the court should be wary of imposing a duty to inquire into matters not raised.

The issue of what investigations or planning Ms C had made before giving up the Swiss flat had been raised during the review in a ‘minded to’ letter, and also in a quetionnaire so there had been an opportunity to refute the assertion it was ‘on a wing and a prayer’, but Ms C had not done so. Ms C had replied

“I knew I have a family to help me and my sister find me a job before I come to UK, I knew I had a job a friend to stay with and family to help and support me.”

There was not enough in this to alert Haringey to a real possibility that Ms C’s decision to give up her settled accommodation was for the reason that

she had an active belief that a specific state of affairs (i.e. her continuation in the job that her sister had found) would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration; let alone that continuation in that job would enable her to find accommodation in due course.

The process undertaken by Haringey was not procedurally unfair simply because a questionnaire had been sent between the ‘minded to’ letter and the final decision. There was no basis for a further ‘minded to’ letter to be required.

Ms C’s expectation about the move to England was not an “active and informed understanding”. She had not made any inquiries about the job. She had not articulated any plans for her future accommodation based upon that job, and the loss of the job was not the reason she had been asked to leave the friend’s house. Ms C had simply looked at the short term. If Ms C had tied the employment and her plans for future accommodation together, then the loss of the job (or her mistken belief as to the sustainability of the job) might have been a relevant fact.

The reviewing officer was entitled to make the findings that he did.

In my judgment, the reviewing officer was fully entitled to conclude, on the information that he had, that Ms Ciftci gave up her settled accommodation in Switzerland and came to England “on a wing and a prayer”.

In those circumstances, the reviewing officer was also entitled to find that Ms Ciftci was not unaware of any relevant fact; and that the cause of her homelessness was her decision to give up her settled accommodation in Switzerland. The consequence of those findings was that the reviewing officer was entitled to find that Ms Ciftci was intentionally homeless.

Appeal dismissed.

 

 

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.

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  1. Housing Law Update December 2021 | William Flack Blog - […] The council were held to be entitled to find that Ms Ciftco was intentionally homeless because she gave up…

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