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Cornerstone Success In London Borough Of Enfield Housing Act Appeal

The Court of Appeal holds that a relevant fact under s.191(2) of the Housing Act 1996 had to be an existing fact and could not be a belief in the happening of a future event in London Borough of Enfield v Najim [2015] Court of Appeal (Civil Division) - Longmore, Kitchin, Floyd LJJ.

David Lintott successfully appeared for the Appellant local authority. The Court of Appeal has allowed the Appellant's appeal and held that Enfield had been entitled to find that the Respondent's eviction was a reasonable consequence of the withholding of rent, so that the respondent was intentionally homeless. The Court also held that a relevant fact under s.191(2) of the Housing Act 1996 had to be an existing fact such as the fact that a person was a secure tenant or a belief that the rent was being paid by a third party, and could not be a belief in the happening of a future event.

Upon an application being made under Part 7, Housing Act 1996, the local housing authority must determine whether the applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally. At that point they have a duty to secure that accommodation is available for occupation by the applicant (unless they refer to another authority) (s.193(2), Housing Act 1996). 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 (s.191).

Facts
The appellant local authority appealed against a judge's decision that a local authority reviewing officer had erred in law in finding that the respondent was intentionally homeless. The respondent had an assured shorthold tenancy for one year. She had withheld rent on three occasions: on the first in order to purchase some floor tiles and on the second in order or pay for the installation of some garden fencing. She said that the landlord had consented to the withholding of rent. The landlord had served a notice to recover possession but had used the wrong form and did not pursue the matter. On the third occasion the respondent withheld the money to purchase a replacement washing machine. The landlord then said that the tenancy would not be renewed because of the withholding of rent and because the property was needed for the landlord's own occupation. Possession proceedings resulted in the respondent's eviction a year later at which point the landlord relet the premises. The respondent applied to the local authority for housing assistance.

The local authority determined that she was intentionally homeless and that decision was confirmed by the reviewing officer who found that the cause of non-renewal of the tenancy was the withholding of rent. The judge held that the reviewing officer had erred in two respects: in wrongly taking into account the reletting as negating the landlord's stated intention to return to the property, and in failing to consider whether the eviction was a reasonable consequence of the withholding of rent in accordance with the Homelessness Code of Guidance for Local Authorities. The local authority appealed and the respondent contended by respondent's notice that the act of withholding rent to pay for a replacement washing machine was an act done in good faith and in ignorance of the fact that it would lead to eviction such that the respondent was entitled to the protection of the Housing Act 1996 s.191(2).

Appeal allowed
(1) It was for the reviewing officer to determine the operative reason for the landlord's decision not to renew the tenancy. The landlord had said that she wished to return to the property. However, when the eviction took place a year later new tenants had moved in and the wish to return could no longer be an operative reason. The reviewing officer had not considered the wrong time period in coming to her conclusions. She was entitled to consider the reasons over the whole period. The landlord could have taken steps to evict at any time after the tenancy had expired, even if the original intention to resume occupation was no longer held. It was clear that the reviewing officer had not erred in finding that the operative reason was the withholding of rent and the judge had been wrong to find an error in that decision.

(2) Although the reviewing officer had failed to mention in terms para.11.11 of the Code of Guidance she had in substance dealt with the respondent's argument based on para.11.11 to the effect that a possession order would not have been made on the basis of the amount withheld so that it was not reasonably foreseeable that the withholding would lead to eviction. The withholding was a breach of the terms of the tenancy in the absence of the landlord's consent. The fact that a court would not have made a possession order was beside the point since by that time the tenancy was at an end. The landlord was not bound to renew. The reviewing officer was entitled to find that non-renewal was the reasonable result of the failure to make payment when due. It was necessary to give the reviewing officer's decision a benevolent interpretation, Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, [2009] 1 W.L.R. 413 applied.

(3) The respondent could not show that she was unaware of any relevant fact within s.191(2). The relevant fact had to be an existing fact such as the fact that a person was a secure tenant or a belief that the rent was being paid by a third party, and could not be a belief in the happening of a future event, O'Connor v Kensington and Chelsea RLBC [2004] EWCA Civ 394, [2004] H.L.R. 37 and Ugiagbe v Southwark LBC [2009] EWCA Civ 31, [2009] P.T.S.R. 1465 considered. The respondent's failure to foresee that withholding a small part of the rent would lead to the non-renewal of her tenancy was not a fact of which she was unaware for the purposes of s.191(2).