Johnston v City of Westminster

For homelessness under Housing Act 1996, accommodation that may be offered in future by another authority is not, merely for that reason, accommodation presently available for the applicant’s occupation. The decision-maker must identify the accommodation and ascertain the nature of the applicant’s interest or licence to occupy it. The reasonableness of continued occupation must also be assessed by reference to identified accommodation. A court may uphold and vary a housing authority’s decision on a different legal basis where the statutory appellate power permits it.

The appellant had previously been accepted as homeless and in priority need by Westminster, but his case was referred to Eastbourne under the local-connection provisions of the Housing Act 1996. Eastbourne accepted the housing duty, although the appellant did not approach it to obtain accommodation.

Following a consent order by which Westminster agreed to accept a fresh application, Westminster decided that the appellant was not homeless because Eastbourne remained willing to accommodate him. The reviewing officer upheld that decision, and the County Court dismissed his appeal. The central issues were whether prospective, unidentified accommodation could satisfy section 175 and whether Westminster’s continuing statutory duty had ended under section 200.

1. Appeal dismissed, with the decision varied. The Court of Appeal confirmed that Eastbourne had accepted, and continued to owe, the housing duty, deleted the conclusion that the appellant was not homeless, and substituted a finding that Westminster no longer owed him a housing duty.
2. The first ground of the County Court’s reasoning was wrong. Section 175(1) concerns accommodation presently available for occupation. Its references to accommodation which the applicant is entitled to occupy by virtue of an interest, or which he has an express or implied licence to occupy, do not cover unspecified accommodation that might become available if he applied to another authority.
3. Fletcher v Brent LBC [2006] EWCA Civ 960; [2007] HLR 12 required the decision-maker to determine the nature of the applicant’s interest or licence and whether it conferred a right to occupy. The present case was stronger because no property had been identified. Without identified accommodation, it was also impossible to decide whether it would be reasonable for the applicant to continue to occupy it under section 175(3).
4. The hotel-reservation analogy did not accord with the statutory language or the purpose of the Act. Nor could the decision be justified on the County Court’s hypothetical second ground, since that was not what had happened.
5. In substance, Eastbourne’s acceptance of the referral meant that Westminster’s housing duty had ended and the section 193 duty was owed by Eastbourne. The fresh application and consent order did not establish any estoppel, agreement or representation that the earlier referral was ineffective or that Eastbourne’s duty had ended. The erroneous stated reason did not prevent the appellate courts from upholding the decision on the established alternative basis. Section 204(3) permitted variation of the decision.

• Court of Appeal (Civil Division) — The appeal from the County Court was dismissed. The review decision was varied by deleting the finding that the appellant was not homeless and substituting a finding that Westminster no longer owed a housing duty.
• County Court, Central London — HHJ Mitchell dismissed the appellant’s statutory appeal on 29 January 2015, upholding Westminster’s section 202 review decision.
• Westminster City Council — The Council’s review decision dated 28 May 2014 upheld its earlier decision that the appellant was not homeless.