Munemo v City of Wolverhampton Council (2025) EWCC 4
This is quite the section 204 homelessness appeal of Wolverhampton’s review decision confirming the decision that Ms M was intentionally homeless.
Ms M had applied to Wolverhampton as homeless in 2020. The application was successful and she was given a secure tenancy. It then, in 2021, came to light that Ms M had previously (and in 2020) had a secure tenancy from Birmingham City Council, which was continuing. Wolverhampton brought possession proceedings on ground 5 Schedule 2 Housing Act 1985, and a possession order was made in 2022. In 2023, Ms M was evicted. She then applied as homeless to Wolverhampton.
the Respondent notified the Appellant that it considered her to be intentionally homeless from the Property, because she had fraudulently obtained the tenancy of the Property from Wolverhampton Homes, whilst maintaining a council tenancy in Birmingham. The officer concluded that the Property had been reasonable for the Appellant to continue to occupy and that it was her last settled accommodation. Neither of these conclusions were challenged on review (or, indeed, in the two previous statutory appeals). The review representations focussed on the questions as to whether the Appellant’s conduct was deliberate and whether she had acted in good faith whilst unaware of a relevant fact.
That decision was upheld on review, finding:
i) The Appellant had deliberately provided false and inaccurate information when she made her homeless application in January 2020 in that she had stated that she had never held a council tenancy previously, and had failed to mention the Flat.
ii) This had led the Respondent to grant her a tenancy of the Property.
iii) As a result of her act/omission, which amounted to obtaining a tenancy by deception, the Appellant was subsequently evicted from the Property, which was available accommodation.
iv) The Property was reasonable for the Appellant’s continued occupation.
On appeal, there were two main issues.
a) Could Ms M raise a new point on appeal not raised in submissions to the review officer?
b) Was Ms M intentionally homeless in law, and, in consequence, was the review decision flawed in law on this point.
On a) this was permissible where the new issue raised was the address to the law in the review decision, not the facts. It was incumbent on the review officer to consider how the law applied to their findings of fact, regardless of submissions or lack of submissions in that regard by the applicant.
I reach that conclusion on the basis that it must be permissible for an appellant to assert that certain factual determinations ought to be made by the review officer within the review process but then, the review officer having reached factual conclusions that the appellant does not agree with but cannot reasonably challenge, be able to raise a point of law on appeal arising from those factual determinations and the legal consequences of them. To put matters another way, it seems to me that it is incumbent on a review officer to consider the legal ramifications of their findings of fact within the review decision process. Once an appellant receives those factual findings and, in the absence of being able to challenge those factual findings on the grounds of irrationality or otherwise, the appellant must be able on appeal to challenge the legal analysis upon which the LHA bases their review decision following on from the factual findings that the LHA made.
(…)
In the present case, it seems that the review officer was cognisant of the need to consider whether the property was reasonable for the appellant to continue to occupy. As such, it was on the review officer’s ‘radar’ that consideration needed to be given to the legal framework surrounding reasonableness of continued occupation. Whilst not explicitly previously raised by the Appellant in this case within the review decision process, the issue of whether an appellant’s conduct impacts upon whether a property is deemed reasonable to continue to occupy, or indeed whether that appellant is intentionally homeless in circumstances in which their own conduct has caused a local authority or other landlord to seek possession of a property, is a legal issue that requires consideration and is not so nuanced or obscure that it can be said it need not have been considered by the Respondent.
On b) and following Chishimba v Kensington & Chelsea RLBC (2013) EWCA Civ 786 and R v Exeter City Council ex p Gliddon and Draper (1984) 14 HLR 103, the principle established was:
Where an applicant obtains a tenancy of a property by deception, and was not eligible to that accommodation from the start, it cannot be said that the applicant has accommodation that it was reasonable for them to continue to occupy.
It followed that the review decision, which did not address the legal question of whether it was reasonable for Ms M to continue to occupy the property, was flawed. The review decision was predicated solely on whether Ms M had deceived Wolverhampton.
It was not her conduct during the tenancy that had caused Ms M to lose it, it was her lack of legibility to be granted a tenancy and obtaining it by deception.
For the reasons that I have set out above, it was not reasonable for the Appellant to continue to occupy the Property. The Review Decision did not explicitly consider the question of how, in light of Mr Walker’s findings about the Appellant’s circumstances and tenancy of the Flat, it would have been reasonable for her to continue to occupy the Property when she never had any eligibility to obtain the Property in the first place. Mr Nabi argued that there had been no sensible attempt to grapple with the principle set out in Chishimba and, had Mr Walker considered the matter, he would not have concluded that it was reasonable for the Appellant to continue to occupy the Property. I accept that submission. Neither of the authorities of Chishimba or Gliddon were mentioned, nor is it apparent that this issue was given any consideration at all by Mr Walker. It may be said that the production of the witness statement by Mr Walker supports my finding in this regard, as it was identified that there was a gap in the Respondent’s reasoning within the Review Decision. To put matters another way, I am not satisfied that the Review Decision “stacks up” or “stands up” in light of the factual findings made about the Flat and the Appellant’s occupation of the same within the Review Decision and thus the Review Decision was reached without sufficient regard to those relevant factors.
Whilst Mr Walker did not have to demonstrate positively that he correctly understood the law, he did have to grapple with the relevant legal issue in light of the factual findings that he made. The reasoning within the Review Decision does give rise to a substantial doubt as to whether Mr Walker erred in law given the nature of the issues in this case.
The review decision was quashed.
Comment
We note, with sympathy, the Circuit Judge’s heartfelt comment that
Counsel informed me during the hearing that this area of housing law is particularly complicated; I tend to agree with that assessment. I heard nearly two days of legal argument, had detailed written submissions provided prior to the hearing and the parties felt it necessary to provide further written submissions to the court following the appeal hearing, despite the same not being requested.
But it has to be suspected that the complications will continue in the Court of Appeal. As it stands, the judgment is well reasoned.