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Reported Case

R Mcdonagh –v- LB Watlham Forest (Admin) (6 December 2016)

Date: 06/12/2016
Duncan Lewis, Reported Case Solicitors, R Mcdonagh –v- LB Watlham Forest (Admin)

Most local authorities operate a blanket policy that where a homeless applicant leaves their tenancy prior to the landlord obtaining an order for possession and warrant for eviction that applicant will be deemed to have made his/herself intentionally homeless and therefore will not be owed a housing duty under section 193 of the Housing Act 1996 Part VII. This case effectively overturned that blanket policy in circumstances which are not unique.

The matter concerned an appeal brought by the applicant against her local authority pursuant to section 204 of the Housing Act 1996 (the Act) against a decision that she made herself intentionally homeless when she left her assured short-hold tenancy at the end of the fixed term, on expiry of a valid notice seeking possession but did not wait for her landlord to obtain an order for possession and a court bailiff warrant for her eviction.

By sections 191(1) and 196(1) of the 1996 Act, a person becomes homeless intentionally or threatened with homelessness intentionally, if:
i) the person deliberately does or fails to do anything in consequence of which the person ceases to occupy accommodation (or the likely result of which is that the person will be forced to leave accommodation);
ii) the accommodation is available for the person’s occupation; and
iii) it would have been reasonable for the person to continue to occupy the accommodation.

The Act further provides that “.. an act or omission made in good faith by someone who was unaware of any relevant fact must not be treated as deliberate.”

Paragraph 11.24 of the Homelessness Code of Guidance for Local Authorities provides as follows:

“ Acts or omissions made in good faith where someone was genuinely unaware of a relevant fact must not be regarded as deliberate. Provided that the applicant has acted in good faith, there is no requirement that ignorance of the relevant fact be reasonable. 11.25. A general example of an act made in good faith would be a situation where someone gave up possession of accommodation in the belief that they had no legal right to continue to occupy the accommodation and, therefore, it would not be reasonable for them to continue to occupy it. This could apply where someone leaves rented accommodation in the private sector having received a valid notice to quit or notice that the assured shorthold tenancy has come to an end and the landlord requires possession of the property, and the former tenant was genuinely unaware that he or she had a right to remain until the court granted an order and warrant for possession.”

In reaching his decision His Honour judge Saggerson held that the local authority had failed to consider whether the appellant has acted in good faith and in ignorance of a relevant fact in so far that she was not aware that she had a legal right to remain in occupation of her assured shorthold tenancy on expiry of the fixed term and the section 21 notice until such time that her landlord obtained an order for possession, the appellant was also ignorant of the fact that she could have attended the local authorities housing department where she would have received advice as to her right to remain in occupation of the tenancy until such time that the landlord obtained a court order for possession.

HH Judge Saggerson further found that the local authority had misdirected itself in law when it failed to address the matter set out in paragraph 11.24 of the Code of Guidance for Local Authorities and failed to apply any adequate explanation as to why they departed from the code of guidance. There was no finding of fact that advice was made available to the appellant before she moved out of her assured shorthold tenancy and as such she could not be found to be intentionally homeless when acting in a group ignorance and in good faith of her legal right to continue to occupy her tenancy pending the landlord obtaining an outright order for possession.

HH Judge Saggerson found that there had been a material change in the basis for justifying the section 202 review decision from that of the section 184 decision yet the local authority failed to comply with regulation 8 and provide the appellant with a “minded to” decision letter to give her the opportunity to address the new adverse findings on which the local authority intended to rely in.

Further, HH Judge Saggerson found it bizarre why someone who was complying with her contractual duty to give up possession on the expiry of the fixed term of the tenancy and the notice seeking possession should be thus be punished in oppose to someone who remains in situ in breach of the terms and condition of their tenancy agreement

Facts of the case

On 15 July 2014 the appellant a single mother obtained an assured shorthold tenancy of a 1st floor flat for a fixed term of 12 months. On 15 July 2014 the landlord served on the tenant a section 21 notice informing her that her tenancy would end on 15 July 2015. The private landlord attended the premises on the 15th day of each month to collect his rent.

On 15 June 2015 the landlord informed the tenant that he did not intend to renew her tenancy therefore she would need to give vacant possession on 15 July 2015. The tenant remained in the property and on 15 July 2015 landlord attended as usual and informed her that she to leave the premises failing that, he would call the police and have evicted from the property. The tenant did not move out of the property nor, did she seek any legal advice.

On or around 14 August 2015 the landlord returned and informed the tenant that he was going to get the police to evict her and she had not left the premises. The tenant generally believed that the landlord was going to evict her therefore, she took what possessions she could carry and left the property and returned the keys to the landlords letting agent. The tenant left behind several items of her own furniture because she was unable to take it out of the property.

The appellant went to stay with her mother who was staying in accommodation secured for her by the local authority as a result of the mother’s earlier homelessness application to the local authority. The appellant’s mother informed her that she would only be allowed to stay at the mother’s home for 2 weeks after which time she would have to leave. The appellant remained at her mother’s home until almost almost 5 months later the tenant’s mother took her to the local authority’s housing office to assist her with making a homelessness application. The initial interview was conducted between the local authority and the applicant’s mother. It was noted that the housing officer only addressed the client to verify her name and date of birth.

The local authority secured interim accommodation for the applicant pursuant to section 188 (1) of the Housing Act 1996.

On 10 March 2016 the local authority provided the appellant with their Housing Act 1996 section 184 decision in which they concluded that she was homeless, eligible for assistance, in priority need but she had made herself intentionally homeless when she left her assured shorthold tenancy prior to the landlord having obtained an order for possession or a court bailiff warrant for her eviction. In reaching its decision the local authority took the view that the client should have known that

On 20 May 2016 the London Borough of Waltham Forest upheld their initial decision that the appellant made herself intentionally homeless when she left her assured shorthold tenancy at the end of the fixed term of the tenancy and following expiry of the section 21 notice served on the appellant by her landlord.

An appeal pursuant to section 204 of The Act was issued in Central London County Court on behalf of the appellant. On 21st October counsel Mr Stephen Cottle of Garden Court Chambers instructed by myself represented the appellant in a Housing Act 1996 s.204 substantive appeal before His Honour Judge Saggerson at Central London County Court. His Honour Judge Saggerson allowed the appeal on all 3 grounds and further ordered that the section 202 decision dated 20th May 2016 be quashed and the matter be remitted to the Respondent local authority for a fresh decision. On 25 October 2016 the local authority reached a fresh decision that the appellant had not made herself intentionally homeless and was therefore owed the full housing duty under section 193 of the Housing Act 1996.

Bernadette P E Sylvester specialises in Housing Law with Duncan Lewis and is a Supervisor in the Housing team.

 

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