Intentional Homelessness

March 25th, 2019

In Godson v Enfield LBC [2019] EWCA Civ 486 Lewison LJ identified the principal intentional homelessness issues on the appeal under the Housing Act 1996, as amended by the Localism Act 2011, as being:-

  1. If a local housing authority purports to discharge its duty to a homeless person such as to terminate that duty, and the homeless person does not appeal against an unsuccessful review of that decision; is he entitled to challenge the lawfulness of that review decision on a subsequent application for assistance as a homeless person?
  2. If so, was the housing authority entitled to terminate its duty in the manner in which it purported to do?
  3. If the termination of the housing duty and the homeless person’s consequent eviction was caused by the homeless person’s refusal of an offer of temporary accommodation, is he thereby rendered intentionally homeless?

When setting out the statutory framework, Lewison LJ said, at paragraph 6:-

“The statutory provisions relating to homelessness have gone through a number of iterations since they first made their appearance in the Housing (Homeless Persons) Act 1977. This must be borne in mind in considering authorities decided on previous versions of the statutory code.”

From paragraph 21, Lewison LJ addressed the first issue, whether the appellant, not having appealed to the County Court, could challenge the reasoning of the first review decision, by which the Council had decided that its full housing duty had been discharged, and argue that the full housing duty was still operative, because the offer of a tenancy was an unlawful offer and therefore refusal of it could not have been a deliberate act which caused the homelessness. The Court of Appeal held that the appellant could not challenge the reasoning of the first review decision or the lawfulness of the tenancy offer.

The second issue, whether the first review decision was lawful, therefore did not arise. Nevertheless, Lewison LJ addressed it, from paragraph 27. The Court of Appeal concluded that it was lawful. Lewison LJ said:-

“28. …there is a distinction to be drawn between discharging a duty (in the sense of bringing to an end) and performing it. Section 193 (3) is explicit. Once the duty is triggered by section 193 (1), Enfield remained subject to the duty until it ceased under the remaining provisions of that section. There is no other way in which the duty may be brought to an end.”

“38. “…even though a person is temporarily housed, the authority has a continuing duty under section 193. That is wholly inconsistent with the notion that once a homeless person is temporarily housed the duty has been discharged, in the sense of brought to an end.”

“40. At the root of the argument is whether a housing authority, in performing its duty under section 193 (2), is entitled to choose how to perform it. In particular whether it is entitled to require an applicant to move from one set of temporary accommodation to another, even if the applicant would prefer to stay where they are. The answer to this question has a number of strands. First, where a person is placed under a duty that can be performed in several different ways, as a matter of principle it is up to them to choose how to perform it. Second, I do not consider that it is correct to regard an applicant as having a right to be housed in any particular accommodation, provided that the accommodation is suitable; and it is reasonable for them to occupy it.”

Lewison LJ addressed the third issue, whether the appellant was intentionally homeless, from paragraph 47. Given that the Council had a continuing duty to a homeless person notwithstanding that the individual had been temporarily housed, and given that the Council could require that individual to move from one set of temporary accommodation to another, where an individual housed in temporary accommodation refused a tenancy at different accommodation and was subsequently evicted, a finding of intentional homelessness could not be challenged. Lewison LJ said, in relation to whether it is reasonable to continue to occupy accommodation:-

“49. … Whether it is reasonable for someone to continue to occupy accommodation depends, at least in part, on how long they are expected to stay there. But there is nothing in the Act to preclude an authority from deciding that it is reasonable for an applicant to continue to occupy accommodation which is temporary: Equally, accommodation may be suitable for temporary occupation even if it is not suitable for more permanent accommodation: A person who is entitled to occupy suitable temporary accommodation is not homeless: …

50. When Mr Godson was required to leave 21c Bury Street he was threatened with homelessness; and when he actually left he became homeless:… His homelessness was not interrupted by temporary accommodation in bed and breakfast accommodation at the Railway Inn. He therefore remained homeless; and had been homeless ever since he left 21c Bury Street. Indeed, the foundation of Mr Godson’s second application to Enfield was that he was homeless; despite having a roof over his head at the Railway Inn. So, the next question for the reviewing officer was: what caused him to lose the accommodation at 21c Bury Street, thereby becoming homeless? The immediate or most proximate cause may be the effective cause; but that need not be so: …

51. In this case the immediate cause of Mr Godson’s homelessness was the council’s decision to evict him from 21c Bury Street. But causation does not necessarily stop there. It is necessary to go on to ask: what caused the council to take that step? The answer is: because Mr Godson deliberately refused the temporary accommodation at 28B Church Street.

52. I do not consider that the reviewing officer can be faulted in concluding that the operative reason why Mr Godson was living in bed and breakfast accommodation at the Railway Inn was the result of his refusal of the tenancy at 28B Church Street. The reviewing officer was, in my judgment, entitled to conclude that that refusal was the effective cause of Mr Godson’s homelessness. Since the refusal was a deliberate act, he was intentionally homeless.

53. Indeed, in my judgment this case is on all fours with Awua in which the applicant was living in temporary accommodation and refused an offer of a tenancy of a flat. In consequence of her refusal of that offer, she lost the temporary accommodation. On the making of a fresh application under section 193 (9) to a different housing authority, she was held to have become intentionally homeless.

54. Moreover, it would produce an inconsistency in the scheme of Part 7 if an expressly provided way in which an authority can discharge its duty under section 193 (2) is rendered ineffective as a result of a refusal by an applicant of an offer of accommodation that complies with the statutory scheme. That is unlikely to have been Parliament’s intention: …”

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