Settled accommodation – Doka revisited

Bullale v City of Westminster Council [2020] EWCA Civ 1587
25 November 2020
 
B, the homeless applicant, was owed the main housing duty by Hammersmith and Fulham LBC. Pursuant to this, she was accommodated, together with three daughters (two of whom were adults), in a hostel. The council offered her accommodation in Barking which she refused following which the council discharged the duty to her.

B left the hostel in January 2016. In September 2016, she was granted an AST of a single room flat with shared facilities. She lived there with her two younger daughters (17 and 21 at time of the appeal to the Court of Appeal) and the older daughter moved in with them after a time. In October 2016, B was granted a tenancy of a slightly larger bedsit in the same building, with exclusive use of a toilet and shower. The landlord knew at outset that flat was overcrowded. In November 2018 the landlord obtained possession of the flat. By that time B had been there for two years and one month.
 
B then applied to Westminster CC as homeless but was found to have become homeless intentionally from the hostel back which she had left in 2016. The two years she had spent living in the flat, it was said, did not amount to a period of settled accommodation sufficient to break the causal chain between her deliberate act (refusing the accommodation in Barking) and her current homelessness. The decision, in substance, focussed only on fact that flat had been overcrowded.
 
B’s appeal to the county court was dismissed. The Court of Appeal allowed a second appeal. The reviewing officer had erred in focussing only on  the issuing of overcrowding and had failed to consider all the relevant facts when assessing whether the accommodation was settled.
 
“21.  Secondly, one of the ways in which the causal connection can be broken is if the applicant has obtained settled, in the sense of non-temporary accommodation, following the earlier homelessness. What amounts to such settled or non-temporary accommodation is a question of fact and degree having regard to all the circumstances of the individual case bearing in mind the purpose of the legislation.
...
24. Thirdly, the factors that may be relevant include the basis on which the accommodation is occupied (whether it is occupied under a lease or a licence), the expectations of the parties as to the period of occupation, whether the arrangement is a commercial one or one between family members or friends, its affordability, whether the accommodation is overcrowded, the context in which the person concerned took the accommodation (in particular whether it was done with a view to a subsequent application for accommodation) and any other relevant factor.

25. The case law gives a number of examples of how local authorities, and courts reviewing decisions, have considered these factors. By way of example only, the grant of an assured shorthold tenancy of six months or more, which is currently the prevailing tenure in the private sector, is likely to be settled rather than temporary, accommodation. Other factors, however, such as the expectations of the parties as the outset, may indicate that it was temporary, not settled, accommodation, such as where the parties expressly agreed at the outset that the tenancy would not be renewed as the landlord would wish to sell the property at that time. See Knight v Vale Royal Borough Council [2003] H.L.R. 9 at paragraphs 12 and 24-26. A local authority was also entitled to reach the conclusion that a six month shorthold tenancy was not settled accommodation, in circumstances where the accommodation was overcrowded, was not affordable and the context in which the applicant entered the tenancy was to enable her to re-apply for accommodation from the local authority. On that combination of factors, the local authority was entitled to conclude that the accommodation was not settled: see Mohammed v Westminster City Council [2005] H.L.R. 47 , per Wilson J, as he then was at paragraph 20, Rix LJ at paragraphs 22 to 23, and Tuckey LJ at paragraph 29 who agreed with the reasons given in both judgments.

26. Fourthly, in assessing whether accommodation is settled it is necessary to have regard to all relevant circumstances "bearing in mind the purposes of the legislation". The legislative purpose is to prevent persons who, having become intentionally homeless, would by obtaining temporary accommodation obtain priority in the provision of housing to which they are not entitled (see per Lord Reed in Haile v Waltham Forest London Borough Council [2015] A.C. 1471 at paragraphs 61 and 22)....”

As to the decision of the Court of Appeal in Doka v Southwark London Borough Council [2017] H.L.R. 786 (my note here) on settled accommodation – which the Supreme Court had refused permission to appeal against while simultaneously questioning the validity of the decision – the court had this to say:

“30. This is not a case where it is necessary to consider the status of a decision of the Court of Appeal in circumstances where permission to appeal is refused in those terms for this reason. In Doka , Patten LJ, with whom Lord Briggs agreed, said that:

"What the applicant needs to establish is a period of occupation under either a licence or a tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant's transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed".

31. In my judgment, the ratio of the decision is contained in the first part of that sentence, that is, that the person must establish a period of occupation which is likely to continue for a significant or indefinite period... The reference in the second part of the sentence to whether the applicant's position was more precarious than it was previously is a description of the consequences on the facts of that case of applying the established approach. I do not read the judgment as requiring the court to carry out some kind of comparison of the precariousness of the earlier and the later accommodation in order to determine if the causal connection between the two has been broken. That does not form part of the ratio of the decision.”

The Judgment is available here.
 

Comment

I’m pleasantly surprised to see this issue sorted out in such a straightforward manner. I’m not aware of any case other than Doka where the Supreme Court has refused permission to appeal while at the same time suggesting that aspects of the decision may be wrong. I had assumed that this conundrum would not be resolved until the Supreme Court decided that they were ready to consider intentional homelessness again (potentially years from now) and until then the county courts would be left to grapple with a decision which had been said not be “authoritative” but which was, nevertheless, binding. Instead, the issue has been sorted out relatively quickly and, it seems, with the agreement of the parties in this case. In considering whether accommodation is settled, there is no need to compare the “precariousness” of the applicant’s accommodation with that which he or she has lost previously: an approach which would effectively mean that a person who lost a tenancy of social housing would be unlikely to ever subsequently acquire accommodation which a decision maker could regard as settled. Rather, whether accommodation is settled is a question of fact and degree involving consideration of various factors such as the likely duration of occupation, overcrowding, affordability, whether the arrangement is a commercial one etc., while also keeping in mind the “legislative purpose” which is to “prevent persons who, having become intentionally homeless, would by obtaining temporary accommodation obtain priority in the provision of housing to which they are not entitled”. Something which the applicant in this case could not fairly be accused of.