Homelessness, ‘settled’ accommodation and overcrowding

Liz Davies and Nick Bano of the Garden Court Chambers Housing Team, instructed by Grainne McCormack of Gillian Radford solicitors, have succeeded in a Court of Appeal case concerning when a period in accommodation can break the causal connection between an earlier finding that the applicant became homeless intentionally and a new incident of homelessness.

Bullale v Westminster CC [2020] EWCA Civ 1587 was handed down on 25th November 2020.

Facts of the case

Ms Bullale had been owed a homelessness duty by Hammersmith & Fulham council and had been accommodated with her three daughters. She had then refused a statutory offer of accommodation from Hammersmith & Fulham in January 2016, the accommodation was withdrawn and she was found to have become homeless intentionally.

She then found her own accommodation.  It was a single room ‘studio’ flat in a shared house, in Westminster’s district.  Ms Bullale lived there with her three daughters (two of whom were adults by the time the family eventually left). The property was statutorily overcrowded.

The family occupied the property under an assured shorthold tenancy, first in one studio flat and then in a different studio in the same building.  Both the landlord and Hammersmith and Fulham knew about the overcrowding from the start. Hammersmith & Fulham had provided a tenancy deposit.

The family lived there for a little over two years, before they were evicted under section 21.  At that point Ms Bullale made an application to Westminster Council for homelessness assistance.

Westminster decided that she had still  become homeless intentionally as a result of her decision to refuse Hammersmith & Fulham’s offer of accommodation in January 2016.   Westminster said that the chain of causation – between the decision to refuse the offer in January 2016 and her new application for homelessness assistance in November 2018 – had not been broken because the intervening accommodation had been statutorily overcrowded, had not been reasonable to continue to occupy and therefore was not “settled accommodation”. 

That decision was upheld on review, and the first appeal to the County Court was unsuccessful.

The Court of Appeal’s decision

Lewis LJ (with whom Bean and King LJJ agreed) considered the authorities on the causal connection between one finding of intentional homelessness and later homelessness.  The question is always one of fact and degree, and the judgment emphasises that reviewing officers must take into account all of the circumstances, bearing in mind the statutory purpose of section 191 (which is to prevent ‘queue jumping’).

The reviewing officer had made three errors.

First, the reviewing officer had failed to consider all of the relevant factors.  The authorities showed that the nature and length of a tenancy, the circumstances in which it was granted, whether the landlord-tenant relationship was ‘commercial’ (as opposed to personal), whether the accommodation was affordable, and the applicant’s understanding and intentions in respect of re-applying as homeless, are all relevant.  The reviewing officer had not considered any of those matters.

Second, the reviewing officer had failed to explain why the overcrowding mattered.  It was not enough to say that there was severe overcrowding, because the overcrowding did not necessarily mean that the accommodation would be temporary.  Instead, the reviewing officer was bound to explain how the overcrowding related to the overall questions of causation and ‘settled’ accommodation.

Third, the reviewing officer had not properly weighed the overcrowding in the balance of factors for and against.  Overcrowding is one factor, but the reviewing officer was required to look at all of the factors and decide whether, overall, the accommodation was ‘settled’.

There was another issue in the case, which was the status of the Court of Appeal’s decision in Doka v Southwark LBC [2017] HLR 786.  The Supreme Court had refused permission to appeal in Doka but – highly unusually – the appeal panel had noted that there “may be errors in the reasoning of the Court of Appeal”, which “should not be treated as authoritative”.

The parties in this case agreed – and the Court of Appeal held – that the ratio in Doka was that a person must establish a period of occupation which is likely to continue for a significant or indefinite period. The judgment in Doka had also referred to an assessment of the precariousness of the subsequent accommodation; that was no more than a description of the consequences of the facts arising in that case.

Comment

The judgment in Bullale establishes that statutory overcrowding is not determinative as to whether the applicant has obtained ‘settled’ accommodation.  It is very likely to be relevant, but any decision must both explain why it is relevant, and fit the overcrowding together with the other relevant factors.

This case also reminds us that reviewing officers cannot treat one aspect of a case as determinative.  They must weigh up all of the relevant factors, and the courts – including the Court of Appeal – will quash decisions where reviewing officers have failed to do so.

Finally, the judgment highlights the High Court’s guidance in R v Merton LBC ex parte Ruffle, as long ago as 1988, which encouraged local authorities to “interpret benevolently the character of accommodation secured by applicants after a finding of intentionality”.  That guidance has only become more important in recent years, as it has become increasingly difficult for applicants to find adequate accommodation.