Gilby v City of Westminster

For the purposes of intentional homelessness, later accommodation is settled only where the occupier has solid grounds reasonably to expect that occupation will continue for the foreseeable future or a significant period. The legal label of the occupation as a lease or licence is relevant but not decisive. The assessment is factual and includes the terms of occupation, the grantor’s ability to grant it, the parties’ relationship, and the expected continuity of occupation.

A review procedure under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 is not triggered by an immaterial change in legal characterisation. It applies where an important aspect of the case was omitted or inadequately addressed in the original decision.

Mrs Gilby and her husband had become intentionally homeless after leaving their former settled home. They later occupied a council flat held by Mrs Gilby’s step-sister under an informal and undisclosed arrangement. Westminster decided that this occupation had not ended the continuing consequence of intentional homelessness because it was not settled accommodation.

On a review under section 202 of the Housing Act 1996, Westminster upheld that conclusion, treating Mrs Gilby as a bare licensee under a temporary arrangement. The Central London County Court dismissed her section 204 appeal. She appealed on the sole ground that the change from the original description of her occupation as an unlawful subtenancy to a bare licence was a deficiency or irregularity requiring the notice and representation procedure in regulation 8(2).

1. Appeal dismissed. Lightman J held, with whom Sedley and Mummery LJJ agreed, that the Flat was not settled accommodation and that regulation 8(2) was not engaged.

2. Under section 191 of the Housing Act 1996, the continuing consequence of intentional homelessness ended only when Mrs Gilby acquired settled accommodation. Settled accommodation meant reasonably secure or permanent accommodation. The question was factual: whether there were solid grounds for a reasonable expectation that occupation would continue for the foreseeable future or a significant period. A lease or licence was relevant evidence, but neither its existence nor its legal label was decisive.

3. The relevant enquiry included the terms of the arrangement, whether the grantor could lawfully grant it, the relationship between the parties, the nature of the accommodation, and its expected and actual duration. Whether Mrs Gilby was an unlawful subtenant or a bare licensee, her occupation under the informal arrangement with her step-sister was precarious. She had no solid basis for expecting continued occupation. Westminster was therefore entitled to find that it had not interrupted the chain of intentional homelessness.

4. The court applied the approach in Hall v Wandsworth LBC [2005] 2 All ER 192. Regulation 8(2) is engaged where, viewed broadly and without technicality, an important aspect of the case was not addressed or adequately addressed in the original decision. Here the legal characterisation of the occupation was not the issue that determined whether it was settled. Both the original and review decisions addressed, and permissibly resolved, that decisive factual issue. There was consequently no deficiency or irregularity requiring notice or further representations under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999.

• Court of Appeal (Civil Division): Dismissed Mrs Gilby’s appeal: [2007] EWCA Civ 604.

• Central London County Court: HHJ Knight QC dismissed Mrs Gilby’s appeal under section 204 of the Housing Act 1996 against Westminster’s review decision.