R v Harrow London Borough Council, Ex parte Fahia (Fahia, Ex parte)

When a person makes a further homelessness application, the mandatory duty of inquiry under section 62 of the Housing Act 1985 arises if there is an application for accommodation and the authority has reason to believe that the applicant may be homeless or threatened with homelessness.

A local authority cannot avoid that duty through a preliminary, non-statutory inquiry merely because it previously found the applicant intentionally homeless. A further application based on a relevant change of circumstances must receive the statutory inquiry. An application based on exactly the same facts may fall outside that requirement.

The respondent and her six children were evicted from an assured shorthold tenancy. Harrow found her homeless, in priority need and intentionally homeless. It provided temporary accommodation for the period required by section 65(3) of the Housing Act 1985. She then remained in a guest house for a year as a licensee, with the rent reimbursed through housing benefit.

When reduced housing benefit threatened her continued occupation, she reapplied for accommodation. Harrow conducted non-statutory inquiries and refused to undertake the statutory procedure. It reasoned that she had obtained no intervening settled accommodation capable of ending the causal effect of her original intentional homelessness.

A deputy High Court judge and the Court of Appeal, reported at 29 H.L.R. 94 and 29 H.L.R. 974 respectively, held that Harrow had erred on the issues pursued before the House. Harrow appealed. The principal issue was whether a local authority could subject a repeat application to a preliminary threshold assessment instead of conducting the inquiries required by section 62.

1. Appeal dismissed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lord Mustill, Lord Nolan, Lord Clyde and Lord Hutton agreed with his reasons.

2. Per Lord Browne-Wilkinson, section 62 of the Housing Act 1985 imposes a mandatory duty to inquire where a person applies for accommodation and the authority has reason to believe that the person may be homeless or threatened with homelessness. Its clear wording provided no basis for Harrow's proposed preliminary threshold procedure for repeat applicants.

3. The respondent's further application was not identical to her earlier application. It relied upon threatened eviction after she had occupied the guest house for a year as the proprietor's direct licensee and had paid rent, albeit with reimbursement through housing benefit. That amounted to a relevant change of circumstances. Harrow therefore could not avoid the statutory procedure by conducting what it called non-statutory inquiries.

4. Lord Browne-Wilkinson recognised narrow situations in which no application arises for section 62 purposes. A purported applicant may lack capacity to apply. In addition, an applicant who has received temporary accommodation and has then been found intentionally homeless cannot make a further application on exactly the same facts. Neither situation applied here.

5. The House declined to decide whether obtaining settled accommodation is the sole means of breaking the causal link between earlier intentional homelessness and later homelessness. Harrow conceded that the link could be broken by other means, and the point had not been argued to the contrary. The appeal proceeded on that concession. The House nevertheless recognised that obtaining settled accommodation is an established sufficient means of breaking the causal link.

6. Lord Browne-Wilkinson observed that legislation might provide a streamlined process for repeat applications. The courts could not create such a process from the existing statutory language. Harrow's appeal was accordingly dismissed.

1. House of Lords: Dismissed Harrow's appeal unanimously and upheld the conclusion that the further application required the statutory inquiry.

2. Court of Appeal: Leggatt, Roch and Aldous L.JJ. held for the respondent on the two issues pursued in the House; 29 H.L.R. 974. They also rejected her challenge to the original finding of intentional homelessness.

3. High Court, Queen's Bench Division: Mr Roger Toulson Q.C., sitting as a deputy judge, held for the respondent on the later authority's error of law and failure to conduct statutory inquiries; 29 H.L.R. 94. He rejected her challenge to the original intentional-homelessness determination.