Hodge v Folkestone and Hythe District Council (2023) EWCA Civ 896
A second appeal to the Court of Appeal on Folkestone’s decision that Ms Hodge as intentionally homeless because she had left a room in a hostel run by a charity that she was occupying under licence.
S.191 Housing Act 1996 provides that a person is intentionally homeless when:
‘(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
The factual history was as follows:
A was 24 years old when the reserved judgment was handed down. She had a significant history of difficulties with her mental health. She was diagnosed with personality disorders in 2011, and with an ’emotionally unstable personality disorder’ in 2011. She had attempted suicide and had had visual and auditory hallucinations. She left home when she was 12. She went to live with her grandmother. Social services were involved. In March 2015, she moved to young person’s accommodation provided by Porchlight. In August 2015, she moved into the Room (a studio flat), which was also provided by Porchlight.
She occupied the Room under a written licence dated 3 August 2015. Page 1 of the licence described the aims of the project run by Porchlight. They were to provide ‘high quality, temporary supported accommodation for single homeless’, to assess their needs so that they could get appropriate support services, and to plan to help them to move into longer-term accommodation.
Clause 2 of the licence added that Porchlight provides temporary accommodation while residents look for more permanent accommodation. Porchlight helps people to find, but cannot guarantee access to, permanent housing. The maximum length of stay would depend on the licensee’s needs. Staff supported residents, and each was given a key worker. Clause 8 of the licence was headed ‘Ending the licence’. Porchlight would normally give not less than seven days’ notice, but could give shorter notice in the case of ‘seriously disruptive or violent behaviour’. Clause 1 of the licence provided that it was an excluded licence under section 1 of the Protection from Eviction Act 1977.
A left the Room on 10 August 2016 ‘of her own accord’. She then moved in with members of her family ‘for some time’. In 2020 she rented a flat from a friend. She left that flat on 20 May 2021. She said that the tenant had become aggressive and had told her to leave. She slept in a car. On 24 May 2021 she applied to the Council for accommodation as a homeless person.
Folkestone decided that she was intentionally homeless from the Porchlight studio. This was upheld on review and on s.204 appeal.
Ms Hodge argued that:
a) The Porchlight room was not accommodation; and if it was
b) It was not settled accommodation.
The Court of Appeal reviewed the main authorities R v Hillingdon London Borough Council ex p Puhlhofer (1986) AC 484 (‘Puhlhofer‘), which concerned the interpretation of sections 1 and 4 of the Housing (Homeless Persons) Act 1977 (‘the 1977 Act’), R v Brent London Borough Council ex p Awua (1996) AC 55 (‘Awua‘), which concerned Part III of the 1985 Act, and Birmingham City Council v Ali  UKHL 36; (2009) 1 WLR 1506 (‘Ali‘), which was about Part VII of the 1996 Act.
From Puhlofer – accommodation is not a defined term in statute. It is a question of fact for the local authority (subject to Wednesbury irrationality).
From Awua – Accommodation did not have to be a ‘settled home’, but reasonable to continue to occupy. It was the local authority’s decision (subject to Wednesbury irrationality) as to whether it was reasonable to continue to occupy. ‘Settled’ accommodation was relevant to breaking the chain of intentionality, but was not a reasonable to remain issue.
From Ali – A refuge could possibly be accommodation. The question for when the person would become homeless while in the accommodation was how long it would be reasonable for them to continue to occupy it. Accommodation that might be reasonable in the very short term may not be if considered in the longer term. Whether it was reasonable to continue to occupy was a question for the local authority to decide (subject to Wednesbury irrationality).
On this basis, the Court of Appeal dismissed the appeal.
In my judgment, the author of the Decision correctly understood, and applied, three propositions.
i. The question whether the Room was ‘accommodation’ was for the Council to decide, and the fact that the Room was occupied pursuant to a licence was not decisive.
ii. The concept of ‘settled accommodation’, relied on in the representations, was only relevant as an analytical tool, in effect, if it helped the LHA on the issue of causation.
iii. Whether it was reasonable for A to continue to occupy the Room, rather than leaving it, was a question for the Council to decide.
I consider that the Council were entitled to decide that the Room was ‘accommodation’. The Council were also entitled to decide, in response to the representations, that the Room had been ‘settled accommodation’ and that A had made a deliberate decision to leave it. If she had stayed, she would have got an offer of secure accommodation. The Council were, further, entitled to find, as they did, that it would have been reasonable for A ‘to continue to occupy the Room rather than giving it up’.
I should make clear that I also accept Mr Hutchings’s submission that, in this case, it was only necessary for the Council to answer two questions. They were whether the Room was ‘accommodation’, and whether it would have been reasonable for A to continue to occupy it. The Council addressed the question whether or not the Room was ‘settled’ accommodation because that question was raised in the Representations, but, on the facts of this case, it was unnecessary for the Council to examine that question.
For those reasons, the Council were therefore also entitled to decide that A was intentionally homeless.
There would appear to be a bit of a disjuncture here with the case law on ‘intervening settled accommodation’, where Knight v Vale Royal BC (2004) HLR 9 is still good law, to the effect that an assured shorthold tenancy of 6 months or more is not necessarily settled accommodation, and via Bullale v City of Westminster Council  EWCA Civ 1587 (our note) the test is establishing a period of occupation which is likely to continue for a significant or indefinite period. Tenure has often been argued on ‘significant or indefinite’ and such a situation is much harder to establish on a licence. It would, in short, appear to be much easier to have left ‘accommodation in which it would be reasonable to remain’ than to have intervening accommodation sufficient settled to break the ‘intentional homeless’ chain of causation.
But ‘intervening settled accommodation’ doesn’t have the weight of House of Lords authority that available ‘accommodation’ does for the purposes of homelessness. It is worth recalling the implied correction to the Court of Appeal in the Supreme Court refusing permission to appeal in Doka v LB Southwark… .