Oduneye v London Borough of Brent

In a s.202 review of an intentional-homelessness decision, a reviewing officer may find deliberate failure to pay rent where the applicant failed to provide information needed to process housing benefit and failed to pay any rent shortfall. Later payments made in error do not retrospectively remove that causation where the arrears properly remained substantial. Findings open on the evidence are not irrational merely because the applicant disputes them. Procedural fairness is satisfied where the applicant had a sufficient opportunity to make representations. An inability to obtain documents after eviction does not itself establish unfairness where no adequate explanation is given for failing to seek access.

This was an appeal by Oduneye against a County Court decision dismissing her appeal from the London Borough of Brent’s review under the Housing Act 1996. The Council had decided under s.184 that she was homeless, eligible for assistance and in priority need, but intentionally homeless after eviction for rent arrears. The s.202 reviewing officer upheld that decision. The County Court dismissed the statutory appeal on the grounds that the reviewing officer had made proper enquiries, acted rationally and followed a fair procedure. The Court of Appeal considered whether later back-payments of housing benefit, alleged irrationality, procedural unfairness or an unfair County Court hearing disclosed an error of law.

Appeal dismissed. Lord Justice Kitchin gave the judgment, with which Lord Justice Sales agreed.

1. An appeal from a decision under s.202 of the Housing Act 1996 lies only on a point of law. The Court of Appeal also upheld the refusal to admit new evidence because no satisfactory reason was given for its earlier omission and it was not shown likely to affect the result.
2. The later awards of housing benefit, exceeding £9,000 in total, had been made in error and were subsequently cancelled, although the Council did not recover them. At the date of eviction the arrears properly exceeded £11,000. Those payments therefore did not assist the appellant’s case. The reviewing officer was entitled to find that the arrears arose from the appellant’s failure to provide information essential to processing her claim and her failure to pay the shortfall between benefit and rent.
3. The reviewing officer was entitled to find a direct causal link between the deliberate failure to pay rent and the loss of the accommodation. She was also entitled to find that the property was affordable and suitable, that it remained available if the rent had been paid, and that it was reasonable for the appellant to continue occupying it.
4. The findings were open to the reviewing officer on the evidence. The appellant’s disagreement with them did not make the decision irrational.
5. The review procedure was fair. The appellant had ample opportunity to make representations, and there was no adequate explanation for failing to seek access to the property to obtain documents needed for the review. Nor was there evidence that the County Court judge failed to hear or understand the arguments advanced through counsel.

The original decision that the appellant was intentionally homeless was therefore legally unimpeachable, and the appeal was dismissed.

• Court of Appeal (Civil Division): On 5 July 2018, dismissed the appeal from the County Court decision. [2018] EWCA Civ 1595
• Central London County Court: His Honour Judge Mitchell dismissed the appeal against the s.202 review decision on 12 July 2016 and made a consequential order on 18 July 2016, in proceedings numbered B40CL421.
• London Borough of Brent: Following its s.184 homelessness decision, the Council’s s.202 reviewing officer confirmed on 10 November 2015 that the appellant was intentionally homeless.