F v Birmingham City Council

On a statutory homelessness review, a local housing authority must consider section 191(2) of the Housing Act 1996 where it sensibly arises on the facts, even if the applicant has not expressly invoked it. A future housing prospect may be a relevant fact only if it is sufficiently specific and based on genuine investigation. Mere aspiration is insufficient.

Good faith, rather than the reasonableness of ignorance, is the statutory issue. An applicant who proceeds without investigating obvious affordability risks, or who shuts their eyes to them, cannot satisfy the good-faith requirement. A review notification is fair if it sufficiently identifies the factual finding the authority is likely to make.

The appellant, a young mother, surrendered an affordable and suitable council tenancy. She then accepted a larger private tenancy which she could not afford and later lost possession of it. Birmingham City Council decided that she was intentionally homeless and therefore did not owe the main housing duty under Part VII of the Housing Act 1996.

Following further review, the Council confirmed that decision by letter dated 4 August 2005. HH Judge Brunning in Birmingham County Court dismissed the appellant’s county-court appeal on 6 December 2005. The appellant appealed to the Court of Appeal, contending that the review had failed to address section 191(2) and that an earlier notification letter had not fairly identified the likely affordability finding.

Decision

1. Appeal dismissed. Lord Justice May held, with whom Lord Justice Gage and Lady Justice Hallett agreed, that the county-court judge had reached the correct conclusion.
2. A section 204(1) appeal is confined to a point of law. The statutory scheme gives the local housing authority the primary decision-making role, and a challenge to factual findings is a public-law challenge. The appellant could contend that the findings were incomplete, but could not invite the appellate court to supplement or recast them.
3. The court accepted the synthesis of the authorities on section 191(2). A reviewing authority must consider the subsection where it is sensibly capable of arising. The applicant’s understanding of future housing may be a relevant fact only where it is sufficiently specific and follows genuine investigation. The question, once ignorance is established, is good faith rather than whether that ignorance was reasonable. Wilful ignorance or shutting one’s eyes to the obvious fails that test.
4. The review findings rejected both asserted factual bases for section 191(2): that a social worker had said housing benefit would meet the rent and that the appellant believed it would do so. At their highest, the findings showed that she accepted an unaffordable tenancy without knowing whether benefit would cover the rent and without investigating the matter. That was no more than proceeding on a wing and a prayer. Section 191(2) therefore did not arise, and her conduct could properly be characterised as wilful ignorance.
5. The Council’s letter of 22 June 2005 gave adequate notice that it was likely to find that she had not properly considered how the rent would be paid. The procedural-fairness ground was insubstantial.

• Court of Appeal (Civil Division): Dismissed the appellant’s second appeal and upheld the conclusion that section 191(2) of the Housing Act 1996 did not assist her.
• Birmingham County Court: HH Judge Brunning dismissed the appeal from Birmingham City Council’s review decision on 6 December 2005.
• Birmingham City Council: On further review, the Council confirmed by letter dated 4 August 2005 that the appellant was intentionally homeless.