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Recent Cases and Legislation

 

Housing Law Updates

Homelessness & Temporary Accommodation

Click on the links below to see recent cases in each area of law:

Yemshaw v Hounslow LBC

LTL 15/12/09

Waller LJ, Laws LJ, Etherton LJ

When determining whether it was reasonable for a person to continue occupying accommodation in accordance with a LA's obligations under the HA 96, 'violence' referred to in s.177(1) required physical contact

Held : After Y fled her matrimonial home due to alleged emotional, psychological and financial abuse from her husband, the LA was entitled to refuse her request for accommodation. s.177(1) HA 96 referred to 'violence' but, following Danesh v Kensington and Chelsea [2006] EWCA Civ 1404, this was to be given a narrow interpretation, requiring physical contact. In spite of s.182 of the Act and the secretary of state's recent guidance that 'violence' should be interpreted widely, this guidance was persuasive only. Although the meaning of statutes could change over time, there was insufficient evidence that the meaning of violence had changed since Danesh.

Francis Osei v Southwark LBC – 25/07/2007

[2007] EWCA Civ 787

Clarke LJ MR, Arden LJ, Hooper LJ

A Spanish citizen who had surrendered his tenancy of a property in Spain was lawfully deemed to be intentionally homeless

The Court of Appeal so held in dismissing the appeal of the tenant (T), a Spanish citizen working in the UK , who had occupied a flat with his family in Spain . T brought his family to the UK and surrendered his tenancy in Spain . The LA found that T was eligible for housing assistance but that he was intentionally homeless due to his surrendering a tenancy of a property that was available and reasonable for him to continue to occupy.

Held : The LA was entitled to conclude that it was reasonable for T to continue to occupy the Spanish flat until he has secured other arrangements in the UK . Consequently, there was no error of law in the LA's decision that T was intentionally homeless .

Watchman v Ipswich Borough Council – 8/2/2007

LTL 8/2/2007

CA (Laws LJ, Carnwath LJ, Moore-Bick LJ)

A local authority tenant was deemed intentionally homeless after she took on a mortgage knowing the repayments could not be kept up

The Court of Appeal so held in dismissing an appeal by the tenant (W) who had rented a property from the LA. In spite of a history of rent arrears, she purchased the property with a mortgage with higher monthly repayments than the current rent. The mortgagee obtained possession of the property following considerable mortgage arrears and W applied to the LA for accommodation. The reviewing officer assessed W as intentionally homeless.

Held : The reviewing officer was entitled to make his decision that W was intentionally homeless as a result of her taking on a mortgage knowing the repayments could not be kept up. He had not asked himself the wrong question and the fact that W's partner had recently lost his employment did not displace his conclusion.

 

F v Birmingham City Council – 02/11/2006

[2006] EWCA Civ 1427

CA (May LJ, Gage LJ, Hallett LJ)

A council tenant may be deemed intentionally homeless if she gives up her tenancy to take privately rented accommodation from which she is subsequently evicted for failure to pay rent

The Court of appeal so held in dismissing the appeal of the tenant, F, against a decision that her Local Authority did not owe her a duty to house her under s193(2) HA 1996. F was granted a council tenancy and provided with housing benefit to fully cover the rent. After only a few weeks, and ignoring advice that she risked being intentionally homeless, F gave up the tenancy to move to a larger property with a higher rent. F was unable to pay the rent and was accordingly evicted. Subsequently, F sought assistance from the LA but was deemed intentionally homeless.

Held : The Authority's decision was correct. F had voluntarily given up her tenancy and moved into a property, larger than she required, which she could not afford. The issue of intentional homelessness had to be examined in the context of the events when F moved; at the time, F did not think that her housing benefit would cover the increased rent and had ignored advice that by giving up her tenancy she risked being intentionally homeless. F's conduct was akin to wilful ignorance or shutting ones' eyes to the obvious, and thus she had not acted in good faith.

 

Therese Conville v Richmond-Upon-Thames LBC – 08/06/2006

[2006] EWCA Civ 718

CA (Civ Div) Pill LJ, Keene LJ, Gage LJ

When providing temporary accommodation to a person with priority need pursuant to s190(2) HA 1996, the LA should not have regard to considerations peculiar to it, such as the extent of its resources and other such demands; the question is rather ‘what is reasonable from the applicant's standpoint in the context of the accommodation potentially available.'

The Court of Appeal so held in allowing the appeal of TC, who had lost her accommodation and applied to the LA for assistance. TC was determined a priority need but intentionally homeless and the LA gave TC notice to leave her temporary accommodation. The Judge at first instance held that the LA had discharged its duty to provide temporary accommodation under s190(2)(a) Housing Act 1996 for such period as the LA considered would give TC a “reasonable opportunity of securing accommodation for [her] occupation” as this duty permitted the LA to have regard to the resources available to it.

Held : s190(2)(a) provided a duty on the LA to make available accommodation for such period the LA considered would give the applicant a reasonable opportunity of securing accommodation for his occupation. What is reasonable should be considered from the applicant's perspective, having regard to his circumstances and in the context of the accommodation potentially available. However, the duty to provide a ‘reasonable opportunity' did not require the LA to provide long term accommodation.

Slater v Lewisham London Borough Council – 12/04/2006

[2006] EWCA Civ 394

CA (Civ Div) Ward LJ, Sir Martin Nourse, Sir Charles Mantell 

A Local Authority, when discharging its homelessness duties under Housing Act 1996, must have regard to the applicant's subjective circumstances and personal characteristics before considering whether or not it is objectively reasonable for the applicant to refuse an offer of accommodation under s193(7F) 

The Court of Appeal so held in dismissing the appeal of a local housing authority (LA). The applicant (S) had applied for rehousing following the birth of her second child. The LA offered S a property in New Cross which S had rejected, inter alia, on the basis that the children's father, who S had separated from, frequented this area and posed a threat to S and her family. The LA conducted a review and determined that the offer of accommodation was not unsuitable as F was of no fixed abode and therefore posed no extra risk to S than if she had been accommodated elsewhere.

Held: Section 193(7F) of the 1996 Act contains two separate elements; requiring the LA to be satisfied that the accommodation is both suitable and reasonable for the applicant to accept. That one element is made out does not necessitate that the other follows automatically. When considering whether it is reasonable for an applicant to refuse an offer of accommodation, the LA must have regard to all subjective factors and personal characteristics of the applicant before determining whether it is objectively reasonable for the applicant to accept the offer. In the instant case, there was no real prospect that the LA, acting rationally, could conclude that it was reasonable for S to accept the offer of accommodation.

 

SHARON GRIFFITHS v ST HELENS COUNCIL – 7/3/2006

[2006] EWCA Civ 160

CA (Civ Div) May LJ, Rix LJ, Coleridge J

A Local Authority's homelessness duties were satisfied once it had made an offer of suitable accommodation under s193 Housing Act 1996. The suitable accommodation can include Assured Shorthold Tenancies or other temporary accommodation.

The Court of Appeal so held in affirming the decision of the lower court that the LA's duty to provide accommodation for G had ceased under s193(5) HA 1996 after she refused the offer of an Assured Shorthold Tenancy from a private landlord. G applied for assistance under HA 1996 Pt VII (Homelessness duties); the LA accepted it had such a duty towards her and made an offer of an Assured Shorthold Tenancy from a private landlord. The Tenancy had an initial fixed term of six months with no guarantee of continuance thereafter. G submitted that the Homelessness Act 2002, which made amendments to HA 1996, prevented an Assured Shorthold Tenancy from being ‘suitable accommodation' pursuant to s193 as it provided only a temporary solution. The LA submitted that its homelessness duties would be satisfied in such circumstances provided the offer of an Assured Shorthold Tenancy was not offered as a permanent solution.

Held : The LA's duty under s.193 HA 1996 did not require it to provide permanent accommodation. The requirement was to provide ‘suitable accommodation'. Suitable accommodation could be in the form of temporary accommodation including, inter alia , an Assured Shorthold Tenancy from a private landlord. If and when the temporary accommodation ceased to become available, the LA's homelessness duties would recommence and the applicant would have to be provided with further suitable accommodation.

Tower Hamlets London Borough v Rikha Begum – 23/03/2005

[2005] EWCA Civ 340

CA (Civ Div) Pill LJ, Keene LJ, Neuberger LJ

 

A Local Authority should re-consider any new application for housing assistance under Housing Act 1996 Part VII unless it is “identical” or based on “exactly the same facts” as the previous application.

The Court of Appeal so held in determining an appeal from a Local Authority. B made an application for housing assistance in 2000 and was provided with temporary accommodation. In 2001 B had another child and thereafter, in 2002 the local authority offered B a secure tenancy of another property. B refused this offer following which the Council evicted B from the temporary accommodation. In 2004 B re-applied for housing assistance; this application was rejected on the ground that there had been no material change in B's circumstances. On appeal the judge held that the Council, in dealing with the second application, had applied the wrong test. The Council appealed the decision; B cross-appealed.

Held: The Council failed to adequately deal with the second application. The only basis on which a Local Authority can decide that a renewed application is invalid is where it is based on exactly the same facts as the earlier application. B's circumstances had changed since the first application and therefore the Council should have re-examined her application. The Court of Appeal gave guidance as to the approach housing authorities should adopt to subsequent applications under Part VII of the 1996 Act:

  1. It is for the applicant to identify in the subsequent application the facts which render it different from the previous application, without this the authority should reject it;
  2. If the application purports to reveal new facts but these are not new, fanciful, or trivial, the authority should reject it;
  3. If the application does reveal new facts, the authority should treat the application as valid (R v Harrow LBC, Ex parte Fahia [1998] 1 WLR 1396).

Appeal dismissed, cross-appeal allowed

Comment: This case clarifies the House of Lords decision of R v Harrow LBC, ex parte Fahia [1998] 1 WLR 1396 which moved away from the old requirement of an applicant proving a ‘material change in circumstances', to a new applicant-friendly test requiring a Local Authority to re-consider any application unless ‘identical' or based on ‘exactly the same facts' as the previous application.

Clearly this imposes a significant legal and administrative burden on local authorities; more so considering that an applicant with a revised application will be entitled to temporary accommodation under s.188(1) HA 1996. As a result of this case, Local Authorities should consider implementing a 3-stage assessment of such renewed applications along similar lines of inquiry as were advised in the Begum case.

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