Aw-Aden v Birmingham City Council

For the good-faith protection in section 191(2) of the Housing Act 1996 to apply, an applicant’s mistaken appreciation of future employment or housing prospects must concern a particular and specific state of affairs. The prospects must relate to specific opportunities and rest on genuine investigation rather than general hope or aspiration.

An appeal to the county court under section 204 is confined to points of law and is substantively equivalent to judicial review. The court must not hear evidence and substitute its own factual findings. Any error must be material.

The appellant left suitable accommodation in Belgium and came to England hoping to obtain employment. Birmingham City Council accepted that he was homeless, eligible for assistance and in priority need, but decided that he had become intentionally homeless by voluntarily relinquishing the Belgian accommodation without first arranging settled accommodation in England.

A review panel upheld that decision. Mr Recorder Cleary dismissed the appellant’s appeal under section 204 of the Housing Act 1996. On the ensuing second appeal, the central issue was whether the appellant had acted in good faith while unaware of a “relevant fact” within section 191(2), namely his true prospects of obtaining suitable employment and accommodation in Birmingham. The court also considered the proper procedure and scope of a section 204 appeal.

1. Appeal dismissed. The appellant’s general expectation of obtaining suitable employment in England was not a “relevant fact” for section 191(2) of the Housing Act 1996. Maurice Kay LJ held that future employment or housing prospects may qualify only when they are sufficiently specific, relate to identifiable opportunities and are based on genuine investigation rather than aspiration. Carnwath J’s analysis in R v Westminster City Council, ex p Obeid was approved as the correct exposition of the law. Laws LJ agreed that the subsection requires a particular and specific state of affairs, not a general assessment of a regional job market. The appellant’s good faith did not cure the absence of the required specificity. The council therefore made no legal error by declining to apply section 191(2).

2. A county court appeal under section 204 is, in substance, equivalent to judicial review. The recorder should not have heard evidence and made fresh findings of fact. His task was to decide whether the review decision disclosed a material error of law. The procedural error did not affect the result because section 191(2) could not apply on the appellant’s case. Brooke LJ added that, where a material error is found, the county court should remit the matter to the original decision-maker rather than decide the facts itself.

3. Maurice Kay LJ observed that a housing authority may have to consider section 191(2) without an express submission invoking it where the material makes the point obvious or plainly puts the authority on warning. No wider duty should be imposed. That qualification did not assist the appellant because the proposed relevant fact was legally insufficient.

4. Brooke LJ held that the review procedure had been unlawful because the authority decided the review without supplying reasonably requested interview material to the appellant’s solicitors or allowing a reasonable opportunity for representations. The unlawfulness was immaterial to the outcome. He emphasised that housing authorities must conduct the necessary inquiries, give reasoned decisions and respect an applicant’s procedural entitlement to make representations.

1. Court of Appeal (Civil Division): The second appeal was dismissed by [2005] EWCA Civ 1834. The court upheld the conclusion that the appellant was intentionally homeless, although it held that the recorder should not have received evidence and made factual findings.

2. Birmingham County Court: Mr Recorder Cleary dismissed the appellant’s section 204 appeal on 22 March 2005.

3. Homeless Review Panel: On 4 November 2004 the panel upheld Birmingham City Council’s decision that the appellant had become intentionally homeless.