Michalczyk v London Borough of Southwark

A renewed application for permission to appeal should be granted where a proposed ground raises a real and important point of principle that cannot fairly be treated as merely academic. The court identified issues concerning whether it is reasonable for an assured shorthold tenant to remain after a valid section 21 notice, and whether leaving without a possession order can amount to intentional homelessness. A further issue was whether accepting privately rented accommodation after a homelessness application may amount factually to abandonment or withdrawal of that application and bring statutory duties to an end. Those issues were not finally decided at the permission stage.

The appellant challenged a County Court decision upholding a review decision that she had become intentionally homeless. She had made an earlier homelessness application, then accepted an assured shorthold tenancy of private accommodation arranged through discussions with the local authority. After leaving when a section 21 notice expired, she made a fresh homelessness application.

The reviewing officer concluded that she had deliberately relinquished her accommodation and that its condition did not make continued occupation unreasonable. Permission to appeal was refused on paper by Patten LJ. The renewed application concerned whether the effect of the notice had to be considered independently, and whether the original homelessness application and the authority’s statutory duties had ended when the tenancy was accepted.

1. Permission granted. Richards LJ granted permission to appeal on both grounds. The matter was not determined substantively.
2. The first ground raised an important point of principle. The court had to consider whether an assured shorthold tenant who leaves on expiry of a valid section 21 notice, without awaiting a possession order, thereby acts deliberately so as to cause homelessness. It also required consideration of whether the notice made it unreasonable for the tenant to continue occupying the premises. The reviewing officer had considered the statutory guidance and Sacupima, but had found that the applicant’s departure was for other reasons and that disrepair did not make continued occupation unreasonable. That did not resolve the distinct question arising from the notice itself.
3. The second ground concerned whether the private tenancy was the applicant’s last settled accommodation and whether the authority’s duties under sections 184, 188 and 193 of the Housing Act 1996 continued. Patten LJ considered that the ground confused the section 193 duty with the conditions giving rise to it. Richards LJ added that the review decision recorded the applicant’s voluntary choice to accept a contractual private tenancy as a solution to her homelessness, rather than as temporary accommodation under section 188.
4. That evidence could reasonably support a finding of deemed abandonment or withdrawal of the original homelessness application. Nevertheless, the point was not clear-cut and warranted consideration at a substantive appeal hearing.

The application was granted. The appeal was to proceed on both grounds.

• Court of Appeal (Civil Division): On 9 December 2015, Richards LJ granted a renewed application for permission to appeal on both grounds from the decision of HHJ Cryan in the Central London County Court.
• Central London County Court: HHJ Cryan dismissed the applicant’s appeal against the homelessness review decision.
• Permission stage: Patten LJ refused permission on the papers, but the renewed application was granted by Richards LJ.