My grateful thanks to Nick Bano of Garden Court for a copy of this judgment. He sent it to me some time ago, but I then misplaced it, so the delay in this appearing is entirely my fault.

Following the the Court of Appeal judgment in Bullale v City of Westminster Council (2020) EWCA Civ 1587 (our note) quashing Westminster’s review decision, Westminster had another go at a review decision as to whether Ms Bullale was intentionally homeless or not. In fact they had a further two goes. The second review decision went against Ms B, but the following s.204 appeal was compromised and a fresh, third, review decision undertaken. That also went against Ms B, and this is the resulting s.204 appeal judgment.

Bullale v City of Westminster Council, Central London County Court, 8 April 2022 (HHJ Roberts) (copy of judgment).

You may recall that Westminster had originally found Ms Bullale to be intentionally homeless because they did not accept that two years Ms B and her three daughters had lived at a studio flat at Bravington Road on an assured shorthold tenancy was settled accommodation, on the basis that it was overcrowded from the start. In the course of subsequent proceedings, up to the Court of Appeal, Westminster accepted that the landlord had known of the overcrowding from the start of the tenancy.

By the time of the third review decision, however, Westminster’s review officer had changed position and was now saying that the landlord had not known at the start of the tenancy, and that the landlord becoming aware caused the eviction. This was on the basis of a telephone call by the review officier to the landlord, the officer’s note of which read

“I asked why he evicted Ms Bullale from Bravington Road. He stated that Ms Bullale was evicted as she had allowed her older children to move into the studio flat. He stated that she initially moved into the property with her youngest child, however he later found our (sic.) that she had moved her oldest daughters into the property. He stated that the accommodation was a studio property, which was only suitable for up to 2 people. He stated that he did not consent to Ms Bullale (sic.) other daughters residing in the property.”

On Ms B’s solicitors objecting that the review officer had not asked the landlord when he knew about the children being present, the review officer emails the landlord to ask this, but never received an answer to the question.

Despite this, the review decision held that the accommodation was not settled because it could not have been occupied for an indefinite period because it was overcrowded from the start.

Ms B appealed on 4 grounds.

i) The review erred in law in that the officer:

failed to consider whether the Appellant’s occupation had, at its outset or during its term, a real prospect of continuation for a significant or indefinite period of time. The reviewing officer (wrongly) focused on the fact that period of occupation was not indefinite, and failed to consider whether the period spent in occupation was a ‘significant’ one”.

The CJ agreed. The test of ‘significant or indefinite period of time’ was a disjunctive test – the officer was required to consider both, not just whether it was ‘indefinite’. The review decision did not address whether the period was significant. It was clear from Knight v Vale Royal BC (2004) HLR 9 that even 6 months occupation under an AST was ‘likely to be settled not temporary’. Occupation here was for two years and one month. This was a material error of law.

This ground succeeded.

ii) Ms B argued that Knight v Vale Royal BC (2004) HLR 9 was no longer good law in view of the amendments to Housing Act 1996 that allowed for a) discharged of duty by a six month AST (Localism Act 2011) and discharge of prevention or relief duty by way of a 6 month AST (Homelessness Reduction Act 2017), such that “an assured shorthold tenancy should generally be treated as something that ‘breaks the chain of causation’ between one period of homelessness and another.”

This did not succeed

I find the Appellant has not demonstrated that the case of Knight no longer remains good law. The reasons given in Knight by the Court of Appeal for deciding that an assured shorthold tenancy would not automatically amount to settled accommodation still remain extant, despite the changes in the Housing legislation.

The Court of Appeal had referred to Knight without demur in Bullale. It remained a question of fact and degree on any tenancy.

iii) The reviewing officer erred in failing to resolve any doubt or uncertainty in the applicant’s failure. Specifically with regard to the point of when the landlord knew of the children being with Ms B in the property.

The CJ agreed. Westminster had changed their position, having previously accepted that the landlord knew from the outset, but the note of the telephone call didn’t take things any further as to when the landlord knew. A Hammersmith & Fulham AST register entry that the review officer had also relied on was plainly wrong as it misidentified the number of dependent children Ms B had at the time. There was no rational support for the review officer’s change of position.

Ground succeeded.

iv) Ms B argued that the review officer had failed to consider all relevant facts, failed to explain how factors were relevant to the question of settled accommodation, and failed to relate her conclusion that eviction was ‘inevitable’ to the question of whether Ms B did occupy the property for a significant time.

The CJ found:

I accept Mr Bano’s submission that the reviewing officer did not consider al the relevant factors as identified by Lewis LJ in Bullale at paragraph 36. The reviewing officer did not even mention, let alone consider the following relevant factors, despite them being listed for her by the Court of Appeal:

The Appellant’s occupation by way of an assured shorthold tenancy was likely to be settled rather than temporary.
The assured shorthold tenancy was entered into after it was made clear to the Appellant that she would not be eligible for assistance from the local authority, and not as a means of enabling her to apply for assistance from the local authority.
The assured shorthold tenancy was a commercial relationship;
The rent was affordable and paid from Housing Benefit and discretionary assistance.
As the Appellant’s solicitors said in their letter of 20 January 2021, Flat 9 was the only accommodation that the Appellant was able to afford. This point was made by Lewis LJ in Bullale at paragraph 37,
“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.”
This factor is further supported by the fact that prior to moving to Flat 7, the Appellant and her three daughters lived in one room at 33 Seagrove Lodge.
The landlord knew from the outset that there would be overcrowding. I repeat my findings under Ground 3 above herein. The Respondent accepted this in the first review decision and in the Court of Appeal, and I have found should not have departed from this decision in her third review decision, but given the Appellant the benefit of the doubt.
However, even if the landlord did not know at the outset, the reviewing officer says in her review decision
“I am satisfied that her occupation did not have a prospect of continuation on an indefinite basis. This is demonstrated by the fact that the landlord began possession proceedings once he became aware that Ms Bullale (sic) daughters were residing with her in the property.”

But the evidence was to the contrary, after the letter of February 2017 and S.21 notice of June 2017, the landlord took no action and indeed permitted Ms B to remain on a statutory periodic tenancy after the end of the fixed term in September 2017. In fact the landlord did not take steps to evict until starting possession proceedings in May 2018

These factors were not considered by the review officer in relation to whether the accommodation was settled.

Finally, the review officer

did not relate the overcrowding to the other factors listed at paragraph 139 above to assess whether those other factors mean that, taken overall, the accommodation could properly be seen as temporary or not settled. If the reviewing officer had related the overcrowding to the other factors, I am in no doubt that she could only have concluded that the accommodation at Flat 9 was settled.

This ground succeeded.

Given the Court’s conclusions, it was proper to make a varying order rather than just quashing the review decision. The review officer’s decision was varied “to state that the Appellant’s occupation of Flat 9 was settled accommodation.”