Noel & Anor v London Borough of Hillingdon

For intentional homelessness under section 191 of the Housing Act 1996, the applicant’s deliberate act or omission must have played a causative part in the loss of accommodation. Where there are several operative causes, it is sufficient that one was deliberate. The question is the real or effective cause, assessed practically and in a common-sense manner; it is more than a simple “but for” inquiry. Where a further deliberate omission contributes to homelessness, the authority must assess the counterfactual position without that omission. It must then decide whether it would have been reasonable to continue occupying the accommodation on the assumption that the omitted step had been taken, including the housing benefit position required by article 2 of the Homelessness (Suitability of Accommodation) Order 1996.

After the possession of his privately rented home, Patrick Noel applied to the London Borough of Hillingdon as a homeless person. Hillingdon concluded that he was intentionally homeless because he had taken an unaffordable tenancy, failed to pay rent and housing benefit, and omitted to claim an increase in housing benefit when his household increased. The review decision treated the latter omissions as operative causes and found that the accommodation would have been reasonable to continue occupying if the appropriate higher housing benefit claim had been made.

The County Court upheld the review decision. The appellants appealed to the Court of Appeal, arguing principally that the homelessness resulted solely from the original tenancy decision and that the accommodation was never accommodation for the purposes of the Act. The central issue was whether Hillingdon had lawfully identified more than one operative cause and applied the appropriate counterfactual reasonableness assessment.

1. Appeal dismissed. Lord Justice Lewison, giving the judgment with which Lord Justice Richards and Mr Justice Coleridge agreed, held that section 191 of the Housing Act 1996 requires a deliberate act or omission of the applicant to play a causative part in the applicant ceasing to occupy accommodation which it would have been reasonable to continue occupying.
2. The statutory phrase “in consequence of” requires causation, but the inquiry is not confined to a “but for” test. The real or effective cause must be identified practically and in a common-sense way. It may be chronologically proximate, but need not be. Where there are parallel operative causes, the test is satisfied if one is the applicant’s deliberate act or omission. In a linear chain, the relevant control is the objective likelihood that the deliberate act or omission will ultimately result in homelessness.
3. The authority was entitled to find two operative causes: Mr Noel’s failure to meet the rental liability and his omission to claim increased housing benefit after the household changed. The latter was not merely part of an inevitable sequence. Hillingdon found that the increased benefit would probably have enabled the arrears problem to be resolved, and that factual conclusion was not challenged.
4. Applying Denton v Southwark LBC, the authority had to assess the position as it would have been without the relevant deliberate omission. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 required housing benefit to be taken into account when deciding whether continued occupation was reasonable. Hillingdon was entitled to conclude that the property would have been reasonable to occupy if the appropriate housing benefit claim had been made.
5. The argument that the property was never accommodation because it was initially unaffordable was rejected. The accommodation could become affordable through work or increased housing benefit, and in any event the case involved more than one cause of homelessness. No error of law was shown.

• Court of Appeal (Civil Division): dismissed the appeal from the Central London Civil Justice Centre. The County Court had upheld Hillingdon’s review decision.