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Cases

Court of Appeal decides on power to move a homeless applicant

25.03.2019

Godson v the London Borough of Enfield [2019] EWCA Civ 486 is of particular significance to local housing authorities who manage their housing stock by providing temporary accommodation to a homeless applicant when discharging their main housing duty but later wish to move them into different accommodation.

Since the Court of Appeal decision in Muse v Brent LBC [2008] EWCA Civ 1447, [2009] PTSR 680 it has been unclear whether a local housing authority performing its duty under section 193(2) can lawfully move a homeless applicant from one temporary address to another absent a change of circumstances making the first accommodation unsuitable. This is something that many authorities need to do when managing their housing stock.

Lewison LJ, with whom Newey LJ agreed, has held that the answer to this question is yes, they can. It is up to a local housing authority how it performs its main housing duty under section 193(2) of the Housing Act 1996.

The Court of Appeal also held that where Enfield had already determined on a previous homelessness application that an offer of accommodation was lawful and that its duty to the applicant had ceased, and that applicant had not appealed the decision to the County Court, it was not open to him to raise the matter again when trying to argue that he had not made himself intentionally homeless on a subsequent application: Tower Hamlets LBC v Rahanara Begum [2005] EWCA Civ 116, [2006] HLR 9 applied.

The Court of Appeal judgment

Mr Godson applied to Enfield as homeless in 2012. Enfield decided that it owed him the main housing duty and provided him with temporary accommodation. Later it wanted to move him and made him a single offer of alternative temporary accommodation.

Mr Godson refused the offer but did not appeal to the County Court against Enfield's decision that its duty had ceased pursuant to section 193(5) after Mr Godson's refusal of the offer of alternative accommodation.

Years later Mr Godson reapplied as homeless, but Enfield decided that Mr Godson had not resided in settled accommodation since he refused the alternative accommodation and he had made himself intentionally homeless by refusing that accommodation.

Lewison LJ held that:

(1) Neuberger LJ's dicta in Rahanara Begum at [33] that:

"[33] Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case s.193, without taking the concomitant burden, namely the procedure and time limits in ss.202–204."

was plainly right. Enfield's decision on a previous homelessness application was that it ceased to be under the duty contained in section 193 (2) in consequence of Mr Godson's refusal of the offer of the alternative accommodation. That was a decision that no duty under that sub-section was owed to him. The decision therefore fell within section 202 (1) (b) which applies to a decision whether the authority owes any duty under section 193. The lawfulness of the offer was a matter that could have been decided on the review and, if necessary, appealed to the county court. It was not open to Mr Godson to raise the matter on the present appeal when trying to argue he was not intentionally homeless. See paragraphs [22]-[26].

(2) 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. It was up to Enfield to decide how to perform its duty. An unintentionally homeless person could be offered alternative accommodation by a local housing authority performing its main housing duty. The comments of Lord Hoffman at page 71 of R (Awua) v Brent LBC [1996] AC 55 (with references to the duty under section 193(2) of the Housing Act 1996 substituted) could be applied to the facts of this case:

"An unintentionally homeless person, on the other hand, cannot be required to leave the accommodation provided under section [193 (2)] unless either he is provided with alternative accommodation or there is a reason why his consequent homelessness will not give rise to a further duty under section [193 (2)]. In this sense the duty to accommodate is indefinite, but it is not in my view legitimate to construe it as a duty to provide permanent accommodation."

Furthermore, there was no right for Mr Godson to waive and, in any event, public interest reasons would preclude him from waiving any right which did exist. See paragraphs [28]-[32] and [43]-[46].

(3) The reviewing officer was entitled to find Mr Godson intentionally homeless because the operative cause of his homelessness was the refusal of the alternative accommodation. The facts of this case were on all fours with those in Awua [52]-[53].

Click here for a copy of the transcript of the Court of Appeal's judgment.

David Lintott appeared for the successful Respondent local authority, the London Borough of Enfield. He regularly acts for Local Authorities in a wide range of public law, housing and planning matters. For more information please contact 020 7242 4986 or email clerks@cornerstonebarristers.com.