O'Connor & Anor v Royal Borough Of Kensington & Chelsea

For intentional-homelessness decisions, a local housing authority must apply the distinct questions in Housing Act 1996, section 191. It must identify an act or omission which was an operative cause of the loss of accommodation, rather than a merely historical or “but for” cause.

Where the applicant acted in good faith and was unaware of a relevant fact, section 191(2) prevents the act or omission from being treated as deliberate. The subsection does not require the unawareness to have been reasonable, although wilful ignorance may show absence of good faith. A decision based only on the applicant’s lack of reasonable care fails to answer the statutory questions.

The appellants lost an assured tenancy after leaving their home in the care of another person while they were in Ireland. Rent arrears accrued, possession proceedings were taken, and the person left in charge later excluded them from the dwelling. The respondent authority decided on review that the appellants had become intentionally homeless.

His Honour Judge Behar in the Wandsworth County Court dismissed their statutory appeal on 23 April 2003. The appellants appealed to the Court of Appeal, contending that they had become homeless before their formal eviction and that the authority had misapplied section 191(2) of the Housing Act 1996.

The central issue was whether the review decision had addressed the statutory requirements for intentional homelessness, rather than making a general assessment of the appellants’ prudence.

1. Appeal allowed unanimously. Lord Justice Sedley and Lord Justice Waller concluded that the review decision could not stand because it did not address the questions required by section 191(2) of the Housing Act 1996. Lord Justice Carnwath agreed that the appeal should be allowed for Lord Justice Waller’s reasons.

2. The appellants became homeless by mid-2002 when they could not secure entry to the dwelling, within section 175(2)(a), rather than only when the warrant of eviction was executed. Their original arrangement that another person should look after the home did not itself amount to abandonment. The earlier date would not, however, alter the outcome if intentional homelessness were otherwise established.

3. Section 191(1) requires an act or omission which was an operative cause of homelessness. There can be several causes. It is sufficient if one operative cause cannot benefit from section 191(2), but a remote event which is merely a factual occasion for what followed is not enough.

4. Section 191(2) qualifies the deliberate act or omission, rather than breaking causation. An applicant’s unawareness of relevant facts need not have been reasonable. Unreasonable conduct may therefore coexist with good faith. The statutory boundary is crossed where the applicant’s conduct, such as shutting their eyes to the obvious, means that it was not in good faith.

5. The authority had treated the failure to safeguard the tenancy and to contact the housing trust as causative, but had not determined whether that omission was made in good faith and in ignorance of relevant facts, including non-payment of rent and the possession proceedings. A broad conclusion that the appellants should have acted more reasonably elided sections 191(1) and 191(2). The decision was therefore legally flawed. The court did not resolve the broader question whether a county court may withhold relief where a challenge has become pointless; on these facts, no such fallback could justify confirmation.

• Court of Appeal (Civil Division) — allowed the appellants’ appeal: [2004] EWCA Civ 394.
• Wandsworth County Court (His Honour Judge Behar) — on 23 April 2003, dismissed the appellants’ statutory appeal against the local authority’s intentional-homelessness decision: WL306189.