Najim v London Borough of Enfield

When deciding whether an applicant became intentionally homeless, a housing authority must determine whether the loss of accommodation was a reasonable or likely consequence of the applicant’s deliberate conduct. Where a landlord gives several reasons for declining to renew a tenancy, the operative reason may be determined by considering events throughout the period ending in eviction.

A reviewing officer need not cite relevant guidance expressly if the decision addresses its substance. Review decisions should receive a benevolent, realistic and practical interpretation. The good-faith protection in section 191(2) of the Housing Act 1996 concerns an applicant’s genuine mistake about an existing fact. It does not extend to a mistaken prediction about future events.

The claimant and her husband occupied premises under an assured shorthold tenancy. During the tenancy they withheld three sums from the rent to pay for works and a replacement washing machine. The reviewing officer found that the landlord had not agreed to those deductions. After the tenancy expired, the landlord obtained possession and re-let the premises shortly after the occupants’ eviction.

Enfield decided that the claimant was intentionally homeless. Her Honour Judge Faber held that the reviewing officer had erred by considering the subsequent re-letting when identifying the landlord’s operative reason for eviction and by failing to consider whether eviction was a reasonable consequence of withholding rent.

Enfield appealed. The claimant relied on a respondent’s notice contending that section 191(2) of the Housing Act 1996 applied because she had not known that withholding rent would lead to eviction. The central issues concerned causation, the reasonable-consequence requirement and the scope of the good-faith protection.

1. Appeal allowed unanimously; respondent’s notice rejected. The reviewing officer made no error of law in confirming that the claimant was intentionally homeless.

2. Where a landlord has given several reasons for declining to renew a tenancy, the reviewing officer must determine the operative reason. That assessment was not confined to the landlord’s intentions when non-renewal was first announced. It could encompass the whole period until eviction because the landlord could have stopped enforcement at any time. The prompt re-letting supported the conclusion that any earlier wish to occupy the property personally was no longer operative and that the withholding of rent was the operative cause.

3. The reviewing officer addressed the substance of paragraph 11.11 of the Code of Guidance on Homelessness, although she did not mention it expressly. A landlord considering whether to grant a new tenancy may take account of the tenant’s conduct during the expired tenancy. A reviewing officer could therefore find that non-renewal was the reasonable result of unauthorised deductions from rent. The fact that the arrears might not have justified a possession order during the tenancy did not determine whether the landlord had reasonably declined to renew it.

4. Applying Holmes-Moorhouse v Richmond upon Thames BC [2009] UKHL 7, review decisions should be interpreted benevolently, realistically and practically. On that approach, the officer had considered whether the refusal to renew was a reasonable consequence of withholding rent and had answered that question lawfully.

5. It was unnecessary to decide whether “reasonable result” in the Code concerned causation alone. Longmore LJ nevertheless doubted that narrow interpretation. “Reasonable result” and “likely consequence” should bear their ordinary meaning. A vindictive eviction by an unreasonable landlord would be unlikely to make the tenant intentionally homeless.

6. Section 191(2) of the Housing Act 1996 addresses a genuine mistake or misapprehension about a fact existing when the deliberate act or omission occurs. It does not cover a belief about whether a future event, such as non-renewal or eviction, will occur. The claimant’s asserted failure to foresee eviction therefore did not engage the subsection.

1. Court of Appeal (Civil Division): By [2015] EWCA Civ 319, unanimously allowed Enfield’s appeal and rejected the claimant’s respondent’s notice.

2. Central London County Court: Her Honour Judge Faber held that the reviewing officer had made two errors of law. She considered that the officer had wrongly relied on the landlord’s subsequent re-letting and had failed to consider whether eviction was a reasonable consequence of withholding rent. No citation is stated.