England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 97/1234 CMS4

(MR JUSTICE POPPLEWELL )

Royal Courts of Justice

The Strand

London WC2

Wednesday 11th February, 1998

B e f o r e:

LORD JUSTICE MILLETT

LORD JUSTICE SCHIEMANN

SIR BRIAN NEILL

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R E G I N A

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LONDON BOROUGH OF BRENT

Appellant

EX PARTE SACIIDO MOHAMED BARIISE

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR B MCGUIRE (Instructed by Solicitors to the London Borough of Brent, Wembley, Middx HA9 8AD) appeared on behalf of the Appellant

MR R ROBERTS (Instructed by Messrs Moran & Co, Wembley, Middx) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Wednesday 11th February, 1998

JUDGMENT

LORD JUSTICE MILLETT: This is an appeal by the London Borough of Brent (which I will call "the Council") from an order of Popplewell J made on 7th July 1997, when he quashed a decision of the Council made on 5th December 1996 and confirmed on 27th January 1997 that the respondent, Mrs Bariise, was intentionally homeless. The question which the Council had to determine was whether in all the circumstances it would have been reasonable for the respondent to continue to occupy secure accommodation which she had left voluntarily.

Before turning to the facts it is convenient to read extracts from the relevant legislation. Section 58(2) of the Housing Act 1985 provides:

"(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy

(2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances in relation to housing in the district of the local authority to whom he has applied for assistance in obtaining accommodation."

Those sections applies to the situation when the respondent was still living in her former secure accommodation. Section 60(4) applies to the situation which arose when she left that accommodation. It is in similar terms and provides that:

"Regard may be had, in determining whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he applied for accommodation or for assistance in obtaining accommodation."

The respondent is a lady who comes from Somalia. She was living in Somalia during the Civil War. Her father was killed. Her house was burnt to the ground. She came to England via Kenya. She says that she was traumatised by the persecution of her family. She has two very small children.

On 15th January 1995 she moved into a property, 55 Sunleigh Road, Alperton, Middlesex. This was secure accommodation since she held an assured shorthold tenancy from 15th January 1995. It was a house where she and her children occupied a double room and shared a living room, kitchen and sanitary facilities with two other adults.

The respondent first visited the Council and completed an application for a Council tenancy on 12th January 1996. In the application form she completed boxes to the effect that neither she nor her children were suffering from any mental ill health or disability or condition of stress. On the same day she was given an appointment for 1st February 1996 and was asked to call to be interviewed by a case worker of the Council. On the day before she was due to attend the Council wrote her a letter of which complaint has been made. It stated:

"It is regretted under the terms of the above Act the Council is unable to provide you with permanent accommodation. The Council has made inquiries and are satisfied that:-

you are not homeless or threatened with homelessness because: you are able to continue to occupy the above property as your landlord has not issued a notice to quit or [I think] obtained a possession order against you."

The letter has been criticised because it preceded the interview. But so far as it went it was perfectly correct; she was not homeless or threatened with homelessness, she had not been required to leave the property. It remained for consideration whether it would be reasonable for her to continue to occupy the property, and this was to be the subject of the forthcoming interview.

The respondent duly called upon the Council and was interviewed by a case worker on 1st February. She told the case worker of her problems with the other two occupants of the property. She said that they stole her food; that they left the premises in a filthy and dangerous condition; that they assaulted her children by speaking harshly to them and causing them to cry. I take that version of what she told the case worker from an affidavit which the respondent swore in these proceedings on 27th May 1997. There she says that she had difficulty in speaking English and in making her views understood.

The respondent was told by the case worker that the landlord was not evicting her; that the other tenants were complaining that her children made too much noise, and that the problems which she was having with her neighbours could not be taken into consideration. It is conceded before us that that went much too far. The Council does not attempt to support it as a general proposition, but nothing turns on it because further inquiry was made.

The respondent left 22 Sunleigh Road on 22nd February 1996. Despite the advice she had received that she would not be given Council accommodation, she left the property with her children and went to live elsewhere in temporary accommodation. She then reapplied for Council accommodation.

She visited the Council's office and completed another form on 9th March. The case worker told her that she could be intentionally homeless as she had left her previous accommodation without making adequate arrangements to obtain alternative secure accommodation. She was provided with a letter advising her that this was the Council's preliminary view on 17th April, but she was given an opportunity to put forward any special circumstances or mitigating factors which she wished the Council to take into account in reaching its final decision.

The case worker made further inquiries and eventually the case was submitted to the Council's Homeless Panel on 15th August 1996 when the case worker's report was considered. According to the evidence before the judge, the Panel noted that the respondent had left accommodation 27 days after she had been advised that the Council was unable to assist her because she was not homeless within the meaning of the Act. The Panel noted that she and her family occupied a double bedroom in a house in multiple-occupation and shared facilities with two other adults. The Panel commented that was not an unusual arrangement and a large number of persons in Brent lived in similar conditions. A letter from the respondent written in Somali had been translated into English, and the Panel took it into account. The Panel considered the respondent's complaints about the theft of food and the filthy condition of the common areas. The view was expressed that this state of affairs was not unusual. Particular note was taken of the respondent's claim that her children had been beaten by the other adults. This causes the Panel concern. It directed that further inquiries should be made on that aspect, and the case worker wrote to the respondent and asked for further particulars of her allegations that her children had been beaten.

In response the Council received a letter dated 7th November 1996 from the respondent's solicitors, who by then had been instructed to act on her behalf. The letter was considered by the Homeless Panel on 15th December 1996. It made three detailed complaints The first was of the lack of hygiene. The allegation was that the other two adults:

"... regularly left the shared kitchen in a dirty and uninhabitable condition so that before use our client would regularly have to engage in a round of cleaning. As our client has two young children who are regularly suffering from sickness she was understandably concerned that for her children to continue in this unclean and unhygienic environment was detrimental to their health she was therefore justified in removing them to a safer environment."

I pause there to say that this had to be put in the context of the evidence before the Council that there was no medical disorder or ill health in either the respondent or her children.

The second complaint was of theft of food by the other two households. That was elaborated as follows:

"Each Monday when our client received her benefits she would do he weekly shopping. However by Tuesday the next day there would be no food left as her neighbours who she shared her kitchen with had stolen her food from the refrigerator. Our client cannot be expected to continue to live in such an unsecured premises and provide for two young children. She did complain to the landlord about this but the landlord's position was that there was nothing he could do, and that if she did not like it she should go."

The third complaint was:

"... our client's children were regularly told off by the other household members who were intolerant of their play. Our client did not personally witness any assault of her children but on many occasions found her children crying after being harshly spoken to by the neighbours. On the basis that if such a scolding led to the children crying this would add up to an assault even if no physical violence was involved. Again this matter was brought to the attention of the landlord but the landlord adopted the same position as previously."

The Homeless Panel considered the letter and observed that the allegation of the theft of the food had been elaborated in more detail, but that so far as the allegations of violence was concerned, it was clear that the respondent's children had been scolded, not beaten. The Panel thought that this was probably because they made too much noise. The solicitors had described the scolding as being on account of the children's play. So the complaints were that other occupiers were leaving the kitchen and sanitary facilities in an unhygienic condition; that there was a serious and consistent theft of food so that there was no food left as early as the Tuesday in each week; and that the children were being scolded.

On that evidence, after consideration, the Panel came to the conclusion that it would not be unreasonable to expect the respondent to continue to live at Sunleigh Road and, accordingly, she had rendered herself intentionally homeless. The Council wrote to her giving their decision on 8th January 1997. The letter stated:

"The Council has made enquiries and is satisfied that:

1. You are homeless

2. You do have a priority

3. Your homelessness is intentional.

The circumstances of your case, including any mitigating factors which you have submitted, were discussed at the Homeless Meeting of 5/12/96. When after careful consideration the decision that you are intentionally homeless for the following reasons:

1. You had accommodation at 55 Sunleigh Road, Alperton Middlesex which was available for your occupation and reasonable for you to continue to occupy.

2. You left this accommodation on [or] around 27th February 1996 without making adequate arrangements to secure alternative accommodation.

On reaching this decision the Panel took into account the following matters: ..."

The respondent's complaints are then set out in the following terms:

"2. You found this accommodation unsatisfactory because you claimed that the other occupants of the household would eat your food stored in the fridge, were careless in their standards of hygiene and assaulted your children.

3. In the panel's experience the situation encountered was not unusual. The Panel has experience of persons who have made similar complaints. There are bound to be conflicts of lifestyle in multi-occupied homes. What did concern the panel were allegations of violence towards your children but when questioned further you withdrew that allegation.

4. The onus was on you to make adequate arrangements when leaving your accommodation."

The respondent's solicitors replied by a letter of 14th January 1997 and put forward further arguments inviting the Council to reconsider the matter. They began by saying that the respondent had not withdrawn her allegations of violence, but stood by them. Furthermore, they said that the allegations:

"were put to you in our previous letter of 7 November 1996."

I interpose by saying that I have quoted the relevant parts of that letter and it is quite clear that, while the allegation of assault was maintained, it had been reduced from an allegation of physical violence to one of verbal abuse.

The letter of 14th January continued by taking up the comment that there were bound to be conflicts of lifestyle in a multi-occupation household and suggested that the Council had applied the wrong test. They said:

"[The Respondent] is very poor and in a vulnerable condition and when faced with violence toward her children and what little food she had being stolen, she was left with little choice but to move out or enter into a potentially violence confrontation. When viewed in this light her actions can be seen as reasonable."

They added that the respondent had recently fled from a war torn country and had suffered as a result.

"She is traumatised and had little or no self confidence. She cannot be expected to have to stand up to her buxom neighbours who were taking her food and smacking her children around."

They then added a somewhat curious paragraph as follows:

"[The respondent] recognises that her actions caused inconvenience to the Council. Unfortunately she was without legal advice prior to her move and if she had taken legal advice she would have remained in the accommodation that she had been allocated by Brent. In the circumstances she apologises for her error and promises that she will not take such a step again. She therefore requests the Panel exercises its mercy and grants her one chance more to look at this matter again and grant her alternate accommodation."

The Council's evidence is that this letter was considered by the Panel at a further meeting on 27th January 1997. The Panel reviewed the previous letters and the two application forms which the respondent had completed it did not accept that the allegations of violence had not been withdrawn. The Panel did not accept that it had applied the wrong test. It recognised that the respondent's solicitors might disagree with the result, but it could not point to any error in the decision making process. They said, in terms, that all the matters which had been mentioned by the solicitors had been taken into account. The Panel's minutes contain the following passage:

"We did not think we had been in error having reference to our general experience in these matter and our knowledge within the Borough, we are familiar with similar complaints even in houses of single ethnic origin. In this regard we had reference to a similar case of ex parte Yusef where the applicant shared a house with three men, one of whom was her husband and so on."

The Panel was not persuaded to alter its previous decision. On 5th February 1997 the Council wrote to the respondent's solicitors stating that their letter of 14th January had been considered by the Panel, but having reviewed the case the Panel was not persuaded to alter its previous decision that the respondent was intentionally homeless on the grounds contained in the previous letter. Then they gave their two reasons as follows:

"1. It is not accepted that the allegations of violence were not retracted. Further, your letter of 7th November 1996 clearly stated that there was no physical violence towards the children.

2. The Panel has experience of families in multi-occupied homes who leave them for a variety of reasons. These are conflict of lifestyle generally but more specifically arguments, complaints of noise, theft of food, drunken parties, smoking cigarettes and so forth. These are not confined to houses of mixed ethnic origin they also include those accommodating families of single ethnic origin. We would be happy to provide you with a copy of the transcript of the judgment in R v London Borough Brent ex parte Yusef which is a case exactly in point if you so require."

The judge considered the evidence and quashed the Council's decision. He said:

"I return to the decision letter. As I have indicated, the criticism that is made is that the Council should not have adopted what might be described as the norm but should have applied their minds to the individual case."

The judge accepted the respondent's submission that it was the particular applicant whose position needed to be considered. He ended his judgment by saying:

"I entirely accept the problems which this Council has and the difficulties of dealing with families who share accommodation. But I am not satisfied that individual consideration was given to the position of this particular applicant and that the balancing exercise in relation to this applicant was carried out."

He ordered that the matter should be reconsidered with specific attention being given to the particular circumstances of the case.

Before us Mr Roberts, who appeared on behalf of the respondent, and who has said everything that can be said on her behalf, made his principal ground of complaint that the Council had not carried out sufficient or, indeed, any real investigations. He went so far as to say that the Council had made up its mind right from the very start that this was a normal case with nothing out of the ordinary, and that the complaints from the neighbours were not matters fit to be considered. For my part, I am not able to accept either of those complaints.

It is plain that the Council considered the matter on a number of occasions after the original meeting. There were, I think, some six occasions on which the Council considered the respondent's complaints. The Panel had her own letter in her own language which had been translated into English before it. It also had two letters from the respondent's solicitors. There is nothing in the evidence to suggest that any further investigation would be productive. As my Lord, Lord Justice Schiemann, pointed out in the course of argument, the Court would not normally quash and require further investigation unless there was some prima facie reason for thinking that it might disclose further evidence favourable to the applicant.

Section 62(1) of the Housing Act requires the Council to make:

"... any further inquiries necessary to satisfy themselves as to-

(a) whether [the applicant] has a priority need, and

(b) whether he became homeless or threatened with homelessness intentionally."

In R v Brent London Borough Council ex parte Baruwa [1997] HLR 915, this court held that in order to establish whether a person is intentionally homeless within section 60(1) the authority must carry out enquiries in accordance with section 62 of the 1995 Act. My Lord, then Neill LJ, said:

"The court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made. ..."

My Lord, Schiemann J, as he then was, said:

"A Council which makes numerous inquiries can, in my judgment, only be attacked for failing to make one more if it failed to make an enquiry which no reasonable Council could have failed to have done, which no reasonable Council could have failed to regard as necessary."

Speaking for myself, I cannot see that in the present there was any useful inquiry which the Council could have been asked to make. It had two letters from the respondent's own solicitors, presumably setting forth everything which they thought worthy of mention in order to persuade the Council to change its mind and recognise that it would not have been reasonable for the respondent to remain in the property; they were considered by the Council. I reject the submission that the Council's investigations were in any way inadequate.

The judge, however, quashed the decision on the ground that there was reason to think that the Council had failed to have regard to the particular circumstances of the individual applicant.

Counsel for the respondent supported this conclusion by submitting that the extent of the alleged thefts of food was not made known to the Council until the respondent's solicitor elaborated the complaint by their letter of 7th November 1996. That was the first time on which the serious extent of the complaint was made known to the Panel, and (it was said) there is nothing in the evidence to show that it struck any particular chord with the Panel. As against that, the evidence is that this was taken into consideration and that even so the respondent's complaints did not take the case out of the usual situation pertaining in the area.

I recognise that it may not be sufficient for the decision-maker merely to state that he has considered all the material put before him. If there is something which is so startling that one would not expect it to pass without individual comment, the Court may be justified in drawing the inference that it has not received any or sufficient consideration. But in this case it is very much a matter of degree. The fact that when told of the extent of the alleged thefts the Panel did not react with astonishment suggests to me that this is may indeed me a not uncommon situation in Brent.

Finally, Mr Roberts was driven to submit, although I do not think he submitted it before or has taken the point in the Notice of Appeal, that if the Council accepted the respondent's complaint about the extent of the thefts of food, and still considered that it was reasonable for her to continue to occupy the property, their decision must have been perverse. This is really an echo of the point which I have just made. It is very much a matter for the Panel's experience of conditions in the Borough to know whether or not the seriousness of the respondent's complaints took her case out of the ordinary. The Panel came to the conclusion that it did not. We cannot possibly say that this was wrong.

There is a housing crisis in the Borough. The Panel is in the best position to assess the seriousness of the general conditions in the Borough and the extent to which the respondent's complaints took her case out of the norm and made it unreasonable for her to remain in occupation of the property, having regard to the general conditions in the Borough.

In my judgment, the judge was wrong to conclude that the Council failed to give individual consideration to the position of the respondent, and failed to carry out the proper balancing exercise in relation to her individual circumstances. For my part, I would allow the appeal and set aside the judge's order.

LORD JUSTICE SCHIEMANN: For the reasons given by my Lord, I would also allow this appeal.

SIR BRIAN NEILL: I also agree.

ORDER: Appeal allowed. No order for costs. Legal aid taxation.