Royal Borough of Windsor and Maidenhead v Hemans

In a statutory homelessness appeal, accommodation held by one spouse may be available to the other where a joint application to live together and the domestic relationship imply consent to cohabit. Applicants cannot rely on the relationship to establish suitability while treating the spouse as a stranger when availability is assessed.

Whether it is reasonable to continue occupying accommodation requires a fair assessment of all material circumstances. The circumstances in which the accommodation was obtained, family reunification, employment, childcare and the child’s welfare may be relevant. A review decision must engage with material evidence and explain any rejection of it. If legally flawed, the usual relief is to quash the decision and require a fresh review based on present circumstances.

The council refused a joint homelessness application by a married couple. It decided that accommodation occupied by the wife in Banbury was available and reasonable for both spouses, because the husband could join her there.

On an appeal under section 204 of the Housing Act 2006, HHJ Harris QC held that the husband had no licence to occupy the property, but rejected the challenge to the review officer’s assessment of reasonableness. The judge varied the decision to declare the couple homeless.

The council appealed on the availability issue. The couple served a respondent’s notice challenging the finding on reasonableness. The central issues were whether the husband had an implied licence to occupy the property and whether the review officer had lawfully assessed whether it was reasonable for the wife to continue living there.

Appeal allowed in part. Toulson LJ gave the judgment, with the Chancellor of the High Court and Sullivan LJ agreeing. The county court’s positive declaration of homelessness was set aside and replaced by an order quashing the review decision.

1. Under s.175, accommodation is available only if the applicant has an entitlement, licence or statutory right to occupy it, and it is reasonable for the applicant to continue occupying it. A licence need not be express. In a domestic context it may be inferred from the relationship between the parties.
2. The joint homelessness application was made so that the family could live together. The wife’s willingness to cohabit therefore implied consent for the husband to occupy the Banbury property. It was impermissible to treat the spouses as a couple when considering suitable accommodation but to treat the wife as a singleton when considering whether the property was available to the husband. The court left open the technical legal nature of a joint application because it did not matter to the appeal.
3. The review officer’s assessment of reasonableness was seriously flawed. The circumstances in which the wife came to occupy the Banbury property were intimately connected with whether it was reasonable for her to continue living there after reconciliation with her husband. The review decision either misunderstood or rejected her account without explaining why. Her earlier housing applications were not necessarily inconsistent with that account, and she had not been given a proper opportunity to answer the contrary case or obtain evidence from social services.
4. The officer was also wrong to treat the wife’s employment and childcare difficulties as incapable of affecting the decision. The effect of living in Banbury on her employment, ability to care for her daughter and family life were relevant considerations. The defects were not technical or incidental; they went to the heart of the statutory question. The approach required by Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 was a fair, realistic and practical analysis rather than either excessive technicality or undue leniency.
5. The proper relief was to quash the review decision, not to make a positive declaration of homelessness. Any further review could not be retrospective and would have to consider the parties’ present circumstances. The council could make further enquiries about available accommodation, but the court expressed the hope that these would be pursued promptly and with appropriate consultation about the child’s welfare.

1. Court of Appeal (Civil Division): Allowed the appeal in part and varied the order to quash the review decision. [2011] EWCA Civ 374.
2. Oxford County Court: HHJ Harris QC allowed the appeal under section 204 of the Housing Act 2006 and varied the review decision to find the couple homeless. The Court of Appeal rejected the positive declaration but held that the review decision was legally flawed and should be quashed.