Ms Kaltun Bullale v City of Westminster Council  EWCA Civ 1587
Ms Kaltun Bullale v City of Westminster Council  EWCA Civ 1587
Court of Appeal 25 November 2020
Before Bean, King & Lewis LJJ
Lewis LJ, with whom King LJ and Bean LJ agreed, decided that when considering whether accommodation is ‘settled accommodation’ for the purposes of breaking the chain of intentional homelessness under s.191 Housing Act 1996, (the test as set out in Din v Wandsworth LBC, Court of Appeal, unreported and cited with approval in R v Brent London Borough Council, ex p. Awua  1 AC 55), required a reviewing officer to demonstrate a clear analysis of all the facts of the case and how they relate to the question of whether accommodation is settled or temporary. A clear explanation must be given in a decision letter as to whether as a matter of fact and degree the accommodation in question had been settled or not.
The court clarified, albeit obiter, that what appeared to be an additional threshold to be met by those seeking not to be found intentionally homeless as set out in Doka v Southwark LBC  HLR 786 (‘Doka’), namely, “the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed”, was not part of the ratio of that case. There is no requirement to carry out a comparison of precariousness between earlier and later accommodation in order to determine if the causal connection between the two had been broken. Having decided that that was not part of the ratio of the case, the court did not then need to consider the status of observations made by the Supreme Court when it refused permission to appeal in Doka but commented that “there may be errors in the reasoning in the Court of Appeal, which should not be treated as authoritative”.
The appellant applied to Hammersmith and Fulham LBC as homeless, and a full housing duty was accepted pursuant to s.193 Housing Act 1996. She was placed in temporary hostel accommodation, but then refused an offer of suitable accommodation. The suitability of that accommodation was upheld on review, the local authority’s full housing duty ceased, and she was evicted.
The authority, however, provided the appellant with a deposit for a bedsit in Westminster and she entered into an assured shorthold fixed term tenancy agreement on 19 September 2016, then another for a different room on 13 October 2016 for the total period of one year. Housing Benefit paid the rent, and a discretionary housing payment paid the shortfall.
The assertion of the appellant that it was always intended, and known by both Hammersmith and Fulham and the landlord, that she would live with her three daughters in the property was accepted by the respondent. The landlord, however, wrote to her in February 2017 to complain that the property had become severely overcrowded, asking her to remove her two eldest daughters or vacate the property. Two s.21 Housing Act 1988 notices were served, one in June 2017, and one in February 2018. Two of her daughters were adults by then. They were evicted on 12 November 2018 and the appellant applied to the respondent as homeless.
In June 2019, the respondent decided she was intentionally homeless because she had deliberately refused an offer of suitable accommodation from Hammersmith and Fulham LBC in January 2016 and there had been no settled accommodation to break the chain of intentional homelessness because from the outset the bedsit in Westminster was severely overcrowded. This s.184 Housing Act 1996 decision was upheld on review on 23 August 2019, and on a s.204 Housing Act 1996 appeal before HHJ Freeland QC. The appellant sought a second appeal to the Court of Appeal on the sole ground that, “the respondent’s reviewing officer erred by considering that the appellant had not obtained ‘settled accommodation’ for the purposes of section 191 Housing Act 1996 on the basis that the accommodation was overcrowded.”
One has to consider as a matter of “fact and degree”, bearing in mind the purpose of the legislation (inter alia to avoid queue-jumping), all the relevant facts to reach a lawful decision on whether accommodation is settled or temporary.
The facts in this case that the respondent had failed to consider, were:
The nature or length of the tenancy or the circumstances in which it was granted.
The assured shorthold tenancy was a commercial relationship which was not entered into as a means of enabling her to apply to a local authority for assistance.
The basis on which the property was let.
The rent was affordable, paid by housing benefit, the shortfall being met by a discretionary housing payment.
When a potentially relevant factor is identified, such as overcrowding, a local authority must consider how that fact is relevant to the analysis, alongside other facts, of whether the accommodation was settled or temporary. The overcrowding would not necessarily mean the accommodation was temporary if all the facts had been considered together to reach a composite conclusion.
As the reviewing officer had not undertaken the correct analysis of the facts, the decision was quashed and remitted to the local authority for reconsideration.
Although this case is one decided on its own facts it provides helpful guidance to local authorities. Consideration of what amounts to settled or temporary accommodation requires a decision letter to set out all the relevant facts such as the nature of tenure, the length of tenure, the views of the parties at the outset of the accommodation, and then weigh all the relevant facts in the round, with a clear analysis, and then an explanation as to why they have reached a particular conclusion.
It is helpful to have clarification on Doka. There is no additional test that requires a local authority or the court to compare the precariousness of two different properties when ascertaining whether the chain of causation has been broken. This must be right when one considers the example of a person who deliberately leaves a secure tenancy, but then obtains an assured shorthold tenancy and remains there for ten years. Although the assured shorthold tenancy is always a more precarious form of tenure than a secure tenancy, it may very well be settled. If the statement in Doka regarding the comparison of the nature of accommodation was right, it would almost be impossible, with the shortage of housing, and the main form of tenure in the private sector being an assured shorthold tenancy, to obtain less “precarious” accommodation.
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