Royal Borough of Kensington & Chelsea v Danesh

For the referral provisions of the Housing Act 1996, violence means physical violence. Threats of violence likely to be carried out are separately addressed by the statute. Criminal-law concepts of assault do not enlarge that meaning.

The probability of future violence must be assessed objectively by the housing authority. An applicant’s fears may matter insofar as the underlying facts support them, but they do not determine the statutory assessment. A court considering an appeal on a point of law must not substitute its own factual assessment where the review decision is rational, carefully reasoned and open to the authority.

Royal Borough of Kensington & Chelsea v Danesh concerned a homelessness referral after Mr Danesh and his family, formerly accommodated in Swansea as asylum seekers, applied to the Royal Borough of Kensington and Chelsea for housing assistance. The borough concluded that they had a local connection with Swansea and referred the application to Swansea City Council.

Mr Danesh relied on verbal harassment and two incidents of physical violence in Swansea. A review officer held that the incidents were random and that it was not probable that similar violence would occur on return. On an appeal under section 204 of the Housing Act 1996, HHJ Cotran quashed that decision. The borough appealed, raising the meaning of violence and the rationality of the review officer’s assessment of future risk.

1. Appeal allowed unanimously. Lord Justice Neuberger, with whom Lord Justice Jacob and Lord Justice Mummery agreed, set aside the County Court order and restored the review officer’s decision of 2 December 2005.

2. In section 198 of the Housing Act 1996, violence means physical violence. It does not include acts, words or gestures which merely cause a person to fear physical violence. Section 198(3) separately includes threats of violence likely to be carried out. That structure would be undermined if violence itself included all conduct amounting to criminal assault.

3. The criminal-law meaning of assault did not assist the construction of this housing statute. The court declined to apply the proposition in R (The Queen) v Rolfe [1952] 36 Cr App R 6, and the similar criminal-law discussion in R v Ireland [1998] AC 147 162(A), to a different statutory word and context. Statutory guidance, to which housing authorities must have regard, also supported the distinction between actual violence, actionable threats, and non-violent harassment.

4. The probability of future violence was an objective question for the review officer. The fears of Mr and Mrs Danesh were relevant only through the facts on which they rested. The review letter accurately recorded those facts, gave rational reasons for treating the attacks as random, and reached a conclusion open to the reviewer. The legislation did not require the borough to guarantee safety or a life free from crime.

5. As a further point, the court observed that, on a second appeal of this kind, the usual question is whether the original decision was correct or was one the decision-maker could properly reach, rather than whether the first appellate tribunal was correct.

• Court of Appeal (Civil Division): Allowed the borough’s appeal, set aside the County Court order, and restored the review officer’s decision: [2006] EWCA Civ 1404.

• Shoreditch County Court: On 17 March 2006, HHJ Cotran allowed Mr Danesh’s appeal under section 204 of the Housing Act 1996 and quashed the borough’s review decision.