Chishimba v Royal Borough of Kensington And Chelsea

For intentional homelessness under section 191(1) of the Housing Act 1996, the applicant’s deliberate act or omission must be a real or effective cause of the loss of accommodation. The inquiry is practical and based on common sense. It is not satisfied by a mere “but for” connection.

Authorities concerning a person who lawfully occupied a home before entering a transaction that led to repossession cannot be applied mechanically where accommodation was obtained by deception. Once that deception is discovered and the landlord requires possession, it will generally be unreasonable to continue occupying accommodation to which the applicant had no lawful entitlement.

The appellant obtained homelessness assistance and a non-secure tenancy after using a counterfeit British passport. She was in fact ineligible for assistance when the tenancy was granted. After the deception was discovered, the local authority ended its housing duty, served notice to quit and obtained possession.

Having later obtained leave to remain, the appellant made a fresh homelessness application. The authority decided, on review, that she was intentionally homeless because her use of the counterfeit passport had caused the loss of the flat. Her statutory appeal to the County Court failed. The issue on appeal was whether that decision correctly applied section 191 of the Housing Act 1996.

1. Appeal allowed. Lewison LJ, with whom Elias and Richards LJJ agreed, held that the reviewing officer had made two errors of law under section 191 of the Housing Act 1996.

2. The phrase “in consequence of” requires a causative connection between a deliberate act or omission and the applicant’s ceasing to occupy accommodation. The act need not have been undertaken to secure homelessness: R v Salford CC ex p Devenport [1983] 8 HLR 54. Where several causes are possible, the authority must identify the real or effective cause by a practical, common-sense assessment. The test is more demanding than “but for” causation. One deliberate operative cause may suffice, but the effective cause need not be the most chronologically proximate one.

3. The authorities concerning mortgages and repossession did not support the review decision. In those cases, including R v LB Barnet ex p Rughooputh [1993] 25 HLR 607, R v Wandsworth LBC ex p Onwudiwe [1994] 26 HLR 302 and Watchman v Ipswich Borough Council [2007] EWCA Civ 348, the applicants had lawfully occupied their homes before undertaking the transaction that exposed them to repossession. The reviewing officer wrongly extrapolated a general rule from those cases.

4. Here, the appellant had never been entitled to occupy the flat. The immediate cause of her loss of it was the discovery of the fraud and the authority’s consequential action. Looking further back, the real and effective cause was her initial ineligibility for assistance, not the deliberate deception as an act causing her to cease occupation.

5. The officer also failed to address whether it was reasonable for the appellant to continue to occupy the flat. The reasoning in Denton v Southwark LBC [2007] EWCA Civ 623 could not be transposed to a tenancy that would never have been granted without the deception. The court approved the approach in R v Exeter City Council ex p Gliddon [1984] 14 HLR 103: once a deception has been revealed and the landlord requires surrender, continued occupation will ordinarily be unreasonable because the occupier has no legal defence to possession.

• Court of Appeal (Civil Division): Allowed the appeal in [2013] EWCA Civ 786 and held that the local authority’s review decision contained two errors of law.
• County Court, Central London Civil Justice Centre: Dismissed the appellant’s statutory appeal against the local authority’s review decision. No citation is stated in the judgment.