Viackiene v London Borough of Tower Hamlets

For intentional homelessness under section 191(1) of the Housing Act 1996, a deliberate act or omission must cause the applicant to cease occupying accommodation which was available and reasonable to continue occupying. Conduct may be characterised either as a deliberate act or as a deliberate failure to act. Where a joint tenant is jointly and severally liable for rent, a reviewing officer may consider whether the applicant deliberately failed to take reasonable available steps to address a co-tenant’s default, including accepting genuine assistance from the landlord to secure a replacement tenant. The applicant’s subjective concerns do not prevent a finding of deliberateness where the evidence does not show that they impaired the decision.

The appellant and another tenant held a joint assured shorthold tenancy. They were jointly and severally liable for the rent, although they had agreed to divide the payments between themselves. After the co-tenant lost his employment and stopped paying, rent arrears accumulated and possession proceedings followed.

The respondent decided that the appellant was intentionally homeless under Part 7 of the Housing Act 1996. On review, the respondent maintained that decision, relying in part on the appellant’s refusal of the landlord’s offer to help find a more suitable co-tenant. The County Court dismissed the appellant’s appeal under section 204 of the Act. The issue before the Court of Appeal was whether the reviewing officer was entitled to conclude that the appellant had become homeless intentionally.

1. Appeal dismissed. The reviewing officer was entitled to find that the appellant’s conduct was deliberate and that, in consequence of it, she ceased to occupy accommodation which it would have been reasonable for her to continue to occupy.
2. It was immaterial whether the appellant’s conduct was described as an act, namely refusing the landlord’s offer, or an omission, namely failing to accept it. Either could satisfy the requirement of a deliberate act or failure to act under section 191(1) of the Housing Act 1996.
3. The appellant was jointly and severally liable for the rent. The reviewing officer was therefore entitled to consider her failure to take steps to address the co-tenant’s default. Relevant possibilities included seeking the landlord’s assistance, negotiating with the landlord, pursuing steps to remove or replace the co-tenant, and investigating whether Housing Benefit could cover the whole property.
4. The reviewing officer had accepted that finding a replacement co-tenant might not be straightforward, but reasonably concluded that it could have been achieved with the appellant’s co-operation. The evidence showed a genuine offer from a landlord who had previously demonstrated forbearance. The appellant had made no meaningful attempt to explore the available mechanisms for resolving the problem.
5. The asserted restraining factors did not prevent the conclusion that the refusal was deliberate. The evidence did not show that concerns about a replacement tenant, a desire to retain the existing co-tenant, or emotional pressure had been advanced to the reviewing officer or had prevented an informed decision.
6. Lord Justice Sullivan gave the principal judgment. Mr Justice Arnold and Lady Justice Hallett agreed.

• Court of Appeal (Civil Division): dismissed the appeal from the County Court.
• Clerkenwell & Shoreditch County Court: His Honour Judge Mitchell dismissed the appellant’s section 204 appeal on 11 June 2012.
• Respondent’s review decision: the respondent upheld its decision that the appellant was intentionally homeless.