Housing - Intentional homelessness - Priority needs - Temporary accommodation

Oxford City Council v Darren Bull: CA (Civ Div) (Lord Justices Pill, Jackson, Tomlinson): 18 May 2011

The appellant local authority appealed against a decision that it was under a duty to provide accommodation for the respondent (B) under part VII of the Housing Act 1996.

B had three children.

He had lived with them and their mother (M) in local authority accommodation.

When he and M separated he rented a single room in a shared house.

Shortly afterwards, the children came to live with him because they did not want to stay with M.

Consequently, B’s landlord gave him notice to quit, because the room was completely unsuitable for four people.

He then applied to the local authority to house him.

While it investigated his need it provided temporary accommodation under section 188(1) of the act.

B and the children went to live there.

The children kept their clothes and possessions there, although they also regularly stayed with M.

The local authority decided under section 184 that it had no duty to accommodate B because he was not in priority need under section 189 as the children did not reside with him, and further that he was intentionally homeless because he had let the children move into his small room in shared accommodation, with the inevitable result that notice to quit was served.

The local authority upheld that decision on review, finding that there was no reason why the children should not live with M, so B’s allowing them to move in with him meant he had made himself intentionally homeless.

B appealed to the county court, which reversed the decision on both residence and intentional homelessness.

The local authority submitted that: (1) the children’s period of residence at the temporary accommodation should not be taken into account, and it would be illogical if its performance of a statutory duty under section 188 caused it to come under a duty to provide long-term accommodation which would not otherwise arise;

(2) the judge’s decision about intentional homelessness was inconsistent with the findings of fact made by the review officer.

B submitted that the temporary accommodation was not suitable for a family of four, so section 175(3) was triggered when the children moved in, and by section 176 it was no longer ‘available’, so his conduct in precipitating the notice to quit could not fall within section 191(1); in other words, he could not become intentionally homeless from accommodation which was not available to him.

Held: (1) A period of residence in section 188 temporary accommodation should be taken into account for the purpose of determining under section 199 whether a local authority came under a duty to provide accommodation under section 193, Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] 1 AC 547 followed.

The same approach should be adopted to determining questions of priority need under section 189, so the children’s period of residence in the temporary accommodation should be taken into account. It was their main home at that time.

Scarcity of the local authority’s resources was not a relevant consideration when determining if the children ‘resided’ under section 189(1)(b); it was relevant to the other limb of section 189(1)(b), namely ‘might reasonably be expected to reside’, but that was not in issue, Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, [2009] 1 WLR 413 distinguished (see paragraphs 38-42 of judgment).

(2) The local authority’s review officer had been quite entitled to find on the evidence that there had been no need for B to take the children to live with him.

There was no error of law in that finding so the judge should not have substituted a different finding of fact, Holmes-Moorhouse followed.

In answer to B’s submission, the children had a home with M where they could and should have lived.

There was no need for them to move in with B.

Therefore it was reasonable for him to continue to occupy the single room: that property was ‘available’ within the meaning of section 176.

By his own deliberate conduct he had created a situation in which he was forced to leave that property, R v Hillingdon LBC Ex p Islam (Tafazzul) [1983] 1 AC 688 HL distinguished.

Further, in the months following the children’s move into B’s home, it would have been reasonable for them to remain with M, R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36, (2009) 1 WLR 1506 distinguished.

Accordingly, B was intentionally homeless and the local authority did not owe him the full duty set out in section 193 (paragraphs 45, 48, 49, 51-58).

Appeal allowed.

Andrew Arden QC, Lindsay Johnson (instructed by in-house solicitor) for the appellant; Kerry Bretherton, Andrew Lane (instructed by Turpin Miller) for the respondent.