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Amy KnightThe Supreme Court has held that, for the purposes of Housing Act 1996, s 191(1), an applicant who had initially become intentionally homeless would be treated as intentionally homeless until such time as he could show that, in the light of a subsequent specific event or series of events, he would on the balance of probabilities have become involuntarily homeless anyway. At that point he would no longer be treated as being intentionally homeless. That approach was consistent with the reasoning of the majority of the House of Lords in Din (Taj) v Wandsworth LBC [1983] 1 AC 657, HL.

Introduction

Homelessness

The Housing Act 1996, Pt 7 governs the provision by local housing authorities of assistance to homeless persons. Pt 7 replaced the Housing Act 1985, Pt 3, which had previously consolidated the provisions of the Housing (Homeless Persons) Act 1977 (since 27 April 2015, the relevant provisions in Wales are contained in Housing (Wales) Act 2014, Pt 2, subject to transitional and saving provisions).

Where an authority decide that a person is: eligible for assistance, homeless, in priority need and not homeless intentionally (s 193(1) of the 1996 Act), they have a duty to secure that accommodation is made available for his occupation (see s 193(2) of the 1996 Act; and also ss 73 & 75 of the 2014 Act, in relation to Wales).

If, however, the authority is satisfied that an applicant in priority need became intentionally homeless, they only have a duty to secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation (s 190(2)(a)) and to provide him (or secure that he is provided) with advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation (s 190(2)(b)). (See also ss 73 & 75 of the 2014 Act. In Wales, a duty applies to secure that accommodation is available for certain categories of priority need applicants who are found to be intentionally homeless, provided that the same duty has not applied in the previous five years: s 75(3) of the 2014 Act).

Intentional homelessness

S 17(1) of the 1977 Act, provided:

“(1) … for the purposes of this Act 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 equivalent provision to s 17 is now s 191 of the 1996 Act (s 77(2) of the 2014 Act is in similar terms).

The House of Lords considered the effect of s 17(1) in Din (Taj) v Wandsworth LBC [1983] 1 AC 657, HL. In 1977, the appellants had moved into a flat above a shop, both held on a lease by a relative. There was a loose partnership in the shop business between Mr Din and the relative, although Mr Din retained his full-time employment. In 1978, the relative withdrew from the business. The business was running into serious financial difficulties, and arrears built up. Legal proceedings were threatened, but not actually commenced. In June and July 1979, the appellants took advice from the respondent authority and were warned that they should remain in occupation pending a court order. In August 1979, notwithstanding this advice, they quit the accommodation, as a result of a demand for rates which they could not meet, and in fear of running up further expenses. They went to stay with the relative in another flat, but in December 1979, they applied for assistance under the 1977 Act.

The authority decided that the appellants had become homeless intentionally, because they had left their accommodation before the owners sought a court order, contrary to the advice they had been given, and had moved into what they knew to be temporary accommodation with their relative. The appellants challenged this decision, by way of county court action for breach of statutory duty. In those proceedings, the authority accepted that the appellants would not have been able indefinitely to remain in occupation and that by December 1979, the appellants would have been (unintentionally) homeless in any event. A majority of the House of Lords held that the authority had to consider whether the appellants were intentionally homeless at the point that they left their accommodation. As the homelessness had been intentional at its inception, the authority’s decision was correct.

Factual background

In June 2010, the appellant was the tenant of a bedsitting-room in a hostel. Under the terms of her tenancy agreement, only one person was allowed to occupy the room. In June 2011, she became pregnant. On 25 October 2011, she moved out of the hostel and went to stay temporarily with a friend. On 11 November 2011, the appellant applied to the respondent authority for assistance under Pt 7 of the 1996 Act. The appellant told the authority that she had left the hostel because of unpleasant smells.

On 15 February 2012, the appellant gave birth to a daughter.

On 1 August 2012, the authority notified the appellant that they had decided that she was intentionally homeless. The appellant requested a review of that decision. On 31 January 2013, the authority’s reviewing officer upheld the decision that she was intentionally homeless, concluding that, notwithstanding the smells in the hostel, it had been reasonable for her to remain there.

The appellant appealed to the county court, contending, inter alia, that it had not been reasonable for her to continue to occupy the bedsitting-room because she would not have been able to remain there after her daughter’s birth. The circuit judge dismissed the appeal, holding that he was bound by Din to find that the birth of the appellant’s daughter was irrelevant as it happened after the appellant had left the hostel.

The appellant further appealed to the Court of Appeal, contending that the decision in Din was no longer good law. The Court of Appeal held that the decision in Din remained good law and dismissed the appeal ([2014] EWCA Civ 792): the authority had to decide whether the appellant became intentionally homeless when she left the hostel; the fact that she would not have been able to remain in the hostel after her daughter’s birth was irrelevant.

The appellant appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal by a majority. The majority of the House of Lords in Din had decided that the questions whether the accommodation was available, and whether it would have been reasonable to continue to occupy it, were to be considered as at the time when the applicant ceased to occupy it. It followed that, if the definition was satisfied as at that time, it was irrelevant to that question to consider whether, if the applicant had not ceased to occupy the accommodation, it would have ceased to be available for his occupation by the time of the authority’s inquiry. In relation to those matters, the decision in Din was correct and remained good law. If the definition is satisfied as at that point in time, it is immaterial under s 191(1) of the 1996 Act to consider subsequent hypothetical events.

That analysis of Din was not, however, determinative of the present appeal. The House of Lords in Din had considered that there must be a continuing causal connection between the deliberate conduct referred to in s 17(1) of the 1977 Act and the applicant’s homelessness at the time of the inquiry. That conclusion also remained good law in relation to s 191(1) of the 1996 Act. A later event constituting an involuntary cause of homelessness will, however, supersede the applicant’s earlier deliberate conduct, where in view of the later event it cannot reasonably be said that, but for the applicant’s deliberate conduct, he would not have become homeless. In such cases, the applicant would not be homeless intentionally as the causal connection between the applicant’s current homelessness and his earlier conduct will have been interrupted. Where, however, the deliberate conduct remains a “but for” cause of the homelessness, and the question is whether the chain of causation should nevertheless be regarded as having been interrupted by some other event, the question will be whether the proximate cause of the homelessness is an event which is unconnected to the applicant’s own earlier conduct, in the absence of which homelessness would probably not have occurred. The Supreme Court considered that where homelessness has been caused by giving up secure accommodation and subsequent accommodation is only unsettled or temporary, the applicant could still be considered intentionally homeless.

In the present case, the consequence of the birth of the appellant’s daughter was that it could not be said, in relation to the appellant’s earlier conduct in leaving the hostel, that “if she had not done that deliberate act she would not have become homeless”. The birth of the baby meant that the appellant would be homeless, at the time when her case was considered, whether or not she had left the hostel when and for the reasons that she did. This analysis did not involve departing from the reasoning of the majority in Din, in which there had been no such later causative event, merely a possibility that one might have occurred.

Lord Carnwath, in the minority, would have dismissed the appeal. In his judgment, Din had been accepted for more than 30 years as authority at the highest level for the proposition that in deciding whether an applicant had become homeless intentionally, the housing authority had to look to the time of his action in leaving the accommodation he occupied and a subsequent hypothetical cause of homelessness did not supersede the actual cause represented by that action. The majority’s decision involved a re-analysis of Din that had not been contended for by the appellant.

Case Comment

Local authorities are left with how best to grapple with intentionality, in what is now a rather artificial two-stage process requiring a distinct approach to be taken to ss 191(1) and 193(1) of the 1996 Act respectively. The first stage – determination of whether the applicant became homeless intentionally pursuant to s 191(1) – requires a focus on the actual, rather than hypothetical, cause of homelessness as at time when the applicant ceased to occupy the accommodation. This affirms the law as stated in Din, requiring no departure from the approach as applied for over 30 years.

The challenge following Haile, is what is to be made of the second stage, which concerns whether an applicant is intentionally homelessness for the purposes of s 193(1) or s 190(1). Whilst at the first stage, whether an applicant is able to show that he would have been homeless by the date of local authority inquires is irrelevant, at the second stage, authorities are to consider events right up until the date inquires are made. Where an authority is satisfied that a later event would have caused the applicant to become homeless anyway, it may be said to have broken the chain of causation such that homelessness at the date of the inquiry is not intentional homelessness for the purposes of s 193(1). This is going to require rather neat mental gymnastics on the part of those who are required to apply the legislation. Further, given that decisions on intentionality can be determinative of the scope of assistance owed to an applicant, Haile seems to have opened up fertile ground to challenge which ‘future’ actual acts are sufficient to break the chain of causation.

Finally, an additional issue to watch out for is the Supreme Court’s application of the principles of statutory interpretation. Haile is the third recent Supreme Court decision concerning housing law (see also Hotak and CN) in which the Court has turned its attention to the Barras doctrine (Barras v Aberdeen Sea Trawling and Fishing Co ltd [1933] AC 402) and related issues, and it may be indicative of a developing line of jurisprudence.

This case summary originally featured on Arden Chambers’ website and is republished with kind permission of Andrew Arden QC and Robert Brown who appeared for the London Borough of Waltham Forest. The original can be found here.

Case comment added by Amy Knight.