Court of Appeal guidance on "intentional homelessness" under section 191 Housing Act 1996

Afonso da Trindade v London Borough of Hackney [2017] EWCA Civ 942

The Court of Appeal has given guidance on the approach to be adopted in a case where an applicant for homelessness assistance under Part 7 Housing Act 1996 claims that an otherwise deliberate act which has the effect of rendering her intentionally homeless, is not to be regarded as deliberate because the applicant was, in good faith, unaware of a relevant fact.

The relevant statutory provision is s.191 HA 1996:

(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.

The Appellant left accommodation abroad because she wanted to get better medical care for her disabled daughter. The local authority's finding of fact was that the applicant had done so intending to stay temporarily with her sister, and then find her own accommodation. The sister's landlord obtained a possession order and the Appellant became homeless. Hackney, on a review under 202 HA 1996, concluded that the deliberate act was leaving the accommodation abroad. The Appellant's claim to have been unaware of a relevant fact was rejected, the review officer concluding that she had left without investigation of her housing options in the UK and with a mere "wing and a prayer" aspiration that she would have housing.

On appeal to the County Court the Appellant argued that she had been unaware when she left her accommodation that her sister would be evicted. That argument was dismissed in reliance on Najim v London Borough of Enfield [2015] EWCA Civ 319; [2015] HLR 19 in which the Court of Appeal held that a future event could not amount to a "relevant fact" for the purposes of s.191(2).

Before the Court of Appeal, it was argued that Najim was per incuriam and that ignorance of a future eviction, or the possibility thereof, could amount to a relevant fact, and also that the Appellant's undisputed wish to obtain care for her daughter amounted to "good faith".

The appeal was unanimously dismissed. The Court of Appeal rejected the per incuriam argument.

It conducted a comprehensive review of the authorities relating to "relevant fact" and concluded that:

  • an applicant who seeks to bring herself within section 191(2) where the future has not worked out as expected by her, has to show that at the time of her action or omission to act referred to in section 191(1), she had an active belief that a specific state of affairs would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration. Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of section 191(2). [26]
The local authority had correctly analysed the case as a "wing and a prayer" type case in which there was no relevant fact of which the applicant was unaware.

On the issue of good faith, this "…has to be judged within the scheme of the 1996 Act and by reference to the matters which the Act regulates" [33]. It is not satisfied by generally laudable motives on a wider personal or social level unrelated to housing matters, and lack of good faith may be established by "…reckless disregard of what her housing prospects would be in the United Kingdom, or shutting her eyes to how she would in practice meet the obvious need for accommodation when she came here" [35]. However, an applicant who made sufficient inquiry as to her housing prospects would be likely to satisfy the "good faith" criteria [36].

Siân Davies appeared for the London Borough of Hackney