Ekwuru v Westminster, City of

Under section 204(3) of the Housing Act 1996, an appeal court is not confined to quashing an unlawful homelessness decision and remitting it. In highly exceptional circumstances, it may determine the matter itself where further inquiries have no real prospect of producing material capable of supporting the authority’s conclusion. In rent-arrears cases, the authority must consider whether there is a sufficient nexus between the cause relied on and the failure to pay, such that the failure was deliberate: [1994] 1 WLR 1442. The court may assess the existing material to decide whether the statutory threshold could lawfully be met.

Mr Ekwuru, homeless and in priority need, challenged Westminster’s repeated finding under the Housing Act 1996 that he had become intentionally homeless. The authority accepted that its third decision was unlawful. On appeal under section 204, the Central London County Court, presided over by Recorder Davies QC, quashed the decision but ordered a fourth review, declining to substitute its own decision. The issue before the Court of Appeal was whether, given the history of inquiries and the evidence concerning rent arrears and travel to Nigeria, the recorder should have varied the authority’s decision rather than remitting the case.

Lord Justice Schiemann gave the leading judgment. Lord Justices Jonathan Parker and Latham agreed.

1. Disposition. The appeal was allowed. The authority accepted that its third decision was unlawful and had rightly been quashed. The issue was whether the recorder was confined to ordering a further review.
2. Power under section 204(3). Section 204(3) of the Housing Act 1996 permits the appeal court to confirm, quash or vary the authority’s decision. In highly exceptional circumstances, the court may examine the existing material and determine that the authority could not lawfully be satisfied that the applicant was intentionally homeless. A further review is unnecessary where there is no real prospect of further inquiries producing material capable of supporting that conclusion.
3. Rent arrears. Under section 191(1), intentional homelessness requires a deliberate act or omission causing the applicant to cease occupying accommodation which was available and reasonable to continue occupying. If departure followed landlord pressure caused by arrears, the authority had to consider the legal test identified in [1994] 1 WLR 1442: whether there was a sufficient nexus between the cause relied on and the failure to pay to establish that the failure was deliberate. The evidence did not support any realistic finding that Mr Ekwuru had private funds with which to pay the increased rent.
4. Timing of departure. The authority was entitled to place no weight on Mr Ekwuru’s inconsistent account. However, the county court and magistrates’ court material meant that it could not lawfully conclude that he had left the country in November 1997 or that he was absent in January 1998. The passport entries were unhelpful. Further inquiries had no realistic prospect of establishing intentional homelessness on either basis.
5. In those exceptional circumstances, the matter should not have been remitted for a fourth review. The respondent was ordered to pay the appellant’s costs of the appeal, subject to assessment.

• Court of Appeal (Civil Division), [2003] EWCA Civ 1293: appeal allowed. The court held that no useful purpose would be served by ordering a further review.
• Central London County Court: Recorder Davies QC quashed the authority’s third review decision and ordered a fourth review, declining to substitute the court’s own decision under section 204(3).