Huda v The London Borough of Redbridge

Whether accommodation is settled for intentional homelessness is a question of fact and degree. The decision-maker must consider all relevant circumstances, including the occupation agreement and matters outside it. Duration and security of tenure are relevant but not determinative. Occupation remains precarious where the occupier cannot reasonably expect to remain for a significant period, including where another person retains a power to terminate. The assessment is objective. On an appeal under section 204 of Housing Act 1996, the court cannot substitute its own findings of fact and may interfere only for legal error, including a materially perverse finding. Prolonged occupation caused by administrative error did not make the licence settled on the facts.

The appellant had previously been found intentionally homeless after refusing accommodation. The respondent provided temporary accommodation under Housing Act 1996, section 190(2), under a third-party licence. Owing to an administrative error, the appellant and his family remained there for about two years after the relevant review decision, although the licence was never varied and eviction was eventually instructed.

The respondent’s review decisions concluded that the accommodation was not settled and had not broken the causal link with the appellant’s intentional homelessness. His appeal under section 204 was dismissed by HHJ Hand QC in the Central London County Court. The issue before the Court of Appeal was whether the reviewing officer had erred in law in treating the occupation as precarious, particularly because of its duration, the possible existence of an assured tenancy, and the expiry of the section 190(2) power.

1. Appeal dismissed. On an appeal under section 204 of Housing Act 1996, the County Court and Court of Appeal could not make their own findings of fact. A finding could be displaced only for an error of law, including a material finding that was perverse.
2. The distinction between settled and temporary accommodation identifies what may break the causal link between intentional homelessness and later homelessness. As explained in Din v Wandsworth LBC [1983] 1 AC 657, whether accommodation is settled is a question of fact and degree. All relevant circumstances must be considered. No distinction can be drawn between matters apparent from the occupation agreement and matters arising outside it.
3. Duration and security of tenure are relevant but not determinative. Precariousness is the antithesis of settled accommodation. A right is precarious where the occupier cannot reasonably expect to remain for a significant period. The assessment is objective, so the parties’ subjective motives or beliefs are irrelevant. The existence of a power in another person to terminate is relevant.
4. The reviewing officer was entitled to find that the appellant remained a licensee, that the licence was genuine and had not been varied, and that the continued occupation resulted from administrative error rather than consent to a change in status. That conclusion was not perverse. The length of occupation did not itself make the accommodation settled. The possibility of an assured tenancy was considered, but it was unnecessary to decide that hypothetical issue.
5. The argument concerning section 3 of the Protection from Eviction Act 1977 did not arise for decision. The expiry of the section 190(2) power did not alter the nature of the permission to occupy. The position was therefore the same as in Desnousse v Newham LBC [2006] QB 831.
6. The reviewing officer’s reference to the appellant’s benefit from the error was not treated as a reason for the conclusion, but as a consequence of the mistake. The final review decision considered the relevant facts and its conclusion that the occupation remained precarious was open on the evidence. Lady Justice Black and Lady Justice King agreed.

1. Court of Appeal (Civil Division): dismissed the appeal and upheld the review decision and the order of HHJ Hand QC. [2016] EWCA Civ 709
2. County Court, Central London: HHJ Hand QC dismissed the appellant’s appeal under section 204 of the Housing Act 1996 against the respondent’s review decision.