R, R (on the application of) v London Borough Of Hounslow [1997] EWHC Admin 165 (19 February 1997)

1. MR RICHARDS: The Applicant is a single man, now 65 years old, with a long history of criminal offences including many serious sexual assaults on children. He has received some 18 sentences of imprisonment over a period of 40 years. Most recently, on 1 July 1991, he was sentenced to a seven year term of imprisonment for a number of indecent assaults on children. He was released from prison on 7 August 1995. On his release he applied to the respondent council for accommodation as a homeless person. He was provided with temporary accommodation but by letter dated 18 October 1995 the council informed him of its decision that, although he was homeless and in priority need, he had become homeless intentionally. The decision was withdrawn following an application for judicial review. But essentially the same decision was reached on reconsideration of the case. That further decision, communicated by letter dated 30 April 1996, is the subject of the present challenge.

2. The issue in the case is whether the council was correct in its approach towards intentional homelessness. Before I deal with that issue, however, I should stress that there is in place a direction pursuant to section 11 of the Contempt of Court Act 1981 that the name and present address of the Applicant be withheld from the public. The direction was made by Sedley J on 9 October 1996 at the same time as granting an interim injunction requiring the council to continue to secure that temporary accommodation was made available for the Applicant pending the hearing of this application.

"The reasoning for my finding of 'intentionality' is that you had accommodation available to you at [address omitted] and it would have been reasonable for you to have continued to occupy those premises but you committed offences which were deliberate acts on your part which did as a matter of fact lead to your arrest, your remand in custody, your trial and your eventual imprisonment. Further, your surrender of the tenancy ... was the direct and reasonable result of your previous actions because you had no means of continuing to pay the rent once your Housing Benefit ceased."

4. That reasoning prompts two questions. First, what were the precise factual circumstances that led to the Applicant's surrender of his previous tenancy? Secondly, did the council apply the right legal test in reaching its decision that those circumstances justified a finding of intentional homelessness?

5. As to the facts there is no dispute. Early in 1990, following his release from prison after serving a long sentence for indecent assaults on children, the Applicant was allocated a property by the council. He was living there when, towards the end of 1990, he was arrested and remanded in custody on a number of further charges of indecent assaults on children. He was subsequently convicted and sentenced, as already stated, to seven years' imprisonment. After his arrest and while on remand he continued to pay the rent with the assistance of housing benefit. On being convicted and sentenced to a long period in prison, however, he realised that he would be unable to continue to pay the benefit once his entitlement to housing benefit had expired: he had been advised that housing benefit could only be paid to prisoners for a maximum period of one year. In those circumstances he decided to determine his tenancy rather than fall into arrears which he would never be able to pay off. With the assistance of the Probation Service he therefore arranged to have the premises cleared and the keys returned to the council. The tenancy was terminated with effect from 21 October 1991.

6. The Applicant has stated in his evidence that the real reason why he gave up the accommodation was that he would no longer be able to afford it after a period of a year or so in custody. He believed he was acting responsibly in bringing the tenancy to an end rather than allowing it to run on with the accumulation of arrears of rent. It was not in his mind in late 1990 that if he committed the offences he would automatically lose his home.

9. The council took the view that, by committing the offences for which the Applicant was ultimately imprisoned, he had acted "deliberately" within the meaning of section 60(1). Those deliberate acts "did as a matter of fact lead to" his arrest, remand in custody, trial and imprisonment. Further, the surrender of his tenancy was "the direct and reasonable result" of those acts because he had no means of continuing to pay the rent once his housing benefit ceased. By reference to that chain of events the council reached the conclusion, in effect, that the tenancy was surrendered "in consequence of" the deliberate commission of the offences. (Nothing turns on the latter part of section 60(1). It is common ground that the accommodation was available for the Applicant's occupation and was such as it would have been reasonable for him to continue to occupy.)

10. Mr Luba, on behalf of the Applicant, does not dispute that the council was entitled to find that the Applicant "deliberately" committed the offences. Where he takes issue with the council's reasoning is in its reliance on the subsequent chain of events as leading to the conclusion that the tenancy was surrendered "in consequence of" the deliberate commission of the offences. That, he submits, is to misconstrue section 60. Intentional homelessness cannot have been intended to depend simply on the existence of an unbroken chain of causation from a "deliberate" act to the homelessness. That would give rise to unacceptable results. For example, it would justify a finding of intentional homelessness where a war criminal was tried and imprisoned now for a "deliberate" offence committed in, say, 1940; or where a person was imprisoned for causing death by dangerous driving after the "deliberate" act of consuming excess alcohol; or where a deliberate investment decision had led to loss, the decline and ultimate closure of the investor's business, foreclosure on the mortgage, and homelessness. To avoid these results he submits that section 60(1) must be read as containing some limitation, put in three possible ways: (1) a remoteness or proximity test, (2) a test of reasonable likelihood, or (3) a test of public policy.

12. The first of the cases in point of time is Robinson v. Torbay Borough Council [1982] 1 All ER 726. The essential facts are that the plaintiffs had fallen behind with their rent, which resulted in possession proceedings being taken and ultimately an order for possession being made against them. The statutory provisions in force at the time, in section 17 of the Housing (Homeless Persons) Act 1977, were in materially identical terms to those of section 60 of the Housing Act 1985. The council found that the plaintiffs were threatened with homelessness intentionally. His Honour Judge Goodall, sitting as a Judge of the High Court, upheld that finding. In relation to the argument that a person is not intentionally homeless unless he intended to become homeless or at any rate appreciated that homelessness would result from his action, he first held that "deliberately" governs only the act or omission, not the homelessness. He went on:

"...In my judgment if a person deliberately does an act the reasonable result of which is his eviction , and the act is in fact the cause of his eviction, then he becomes homeless intentionally even though he did not appreciate that it would be the cause. Similarly, if a person deliberately does an act and eviction is the likely result of what he deliberately does , then he becomes threatened with homelessness intentionally, even though he may not have appreciated that it would be the likely result.

The wording of sub-ss (1) and (2) were very properly subjected to a detailed and critical analysis, but one thing seems to me plain: precisely the same test must be applied when the local authority are considering the question of intentional homelessness as is to be applied when they are considering the question whether a person is threatened with homelessness intentionally . Otherwise, the position would be as absurd as it would be unjust. It would mean that a man was not threatened with homelessness intentionally before he was evicted, but might nevertheless become homeless intentionally after he was evicted, or vice versa. Parliament could not conceivably have intended to have applied a different test depending on whether the bailiffs actually evicted the person in question or not.

I have come to the conclusion that perhaps the sense of the two subsections can best be expressed by a colloquialism, as is so often the case in English. I think that if a man is about to be evicted, or if he has been evicted, then he is threatened with homelessness intentionally, or, as the case may be, became homeless intentionally, if the fair-minded bystander could say to himself, 'He asked for it, ' and say that in either sense of those words. That is to say, of course, the man who asks his landlord to serve him with a notice to quit, and is therefore evicted, becomes homeless intentionally; he asked for it in the literal sense of those words; but if his conduct is such as to drive his landlord to evict him, and if the fair-minded bystander can say of the person evicted, 'Well, I'm very sorry, but he asked for it,' then I think the test of intentional homelessness, or being threatened with homelessness intentionally, is satisfied.

13. No doubt because it had not yet been reported, the decision in Robinson v. Torbay BC does not appear to have been cited to the court in R v. Thanet District Council, ex parte Reeve (1981) 6 HLR 31, a case decided a few months later. The applicant in that case was a woman who had been dismissed from employment for deliberate misconduct (lying to her employers) and had lost her tied accommodation. The council concluded that she had become intentionally homeless because she must have known that the consequence of her misconduct could be dismissal and the inevitable loss of her tied accommodation. Woolf J held that the council's approach was correct. He stated:

"It seems to me that the answer to the question of whether or not the council were entitled to take the view which they did of the applicant's conduct depends on the proper interpretation of Section 17(1). It appears to me that the use of the words "in consequence" in that sub-section does raise problems of causation. Really, what is involved in deciding whether or not the applicant is right is a decision as to remoteness .

Some acts which a person does will lead indirectly to their becoming homeless, but if the acts are too remote from the consequence, then they will not render that person intentionally homeless for the purposes of Section 17. Other acts will be sufficiently proximate to render the person within the category of those who become homeless intentionally . The courts must, when cases come before them, try to indicate where the borderline lies. It is my view that this case probably comes close to the borderline.

For it to fall on the right side so far as the local authority is concerned, it seems to me that the termination of the employment by the employer must be lawful. It must be some conduct on the part of the applicant which justifies the employer treating the contract as at an end. Is there a requirement for anything more than that? The council thought there was, and I am satisfied that the proper interpretation of the section does at least allow the council to approach the matter in the way they did. What they asked themselves was whether it was an act which the applicant must have known could result in her being dismissed with the inevitable loss of her tied accommodation.

The council may have been approaching the matter in a way which was too generous to the applicant. [Counsel for the respondent] suggests that the council merely needed to ask the question in an objective manner, not in the subjective manner which they adopted. I, for the purposes of this case, bearing in mind that I have dealt with it within a very limited period of time, do not propose to go further than say that, in my view, the subjective approach adopted by the council was a proper approach and one which cannot be criticised by the applicant. I leave over for another day the question as to whether they would have been entitled to have adopted a less generous view" (page 35, emphasis added).

14. It is plain that Woolf J thought there should be some limiting principle, which he expressed in terms of remoteness or, to look at the other side of the coin, proximity. He specifically contemplated that some acts leading indirectly to homelessness might be so remote from the consequence that they would not render the person intentionally homeless. However, he did not give any further guidance as to what the content of that limiting principle might be. It was not necessary for him to go further than to support the "subjective" approach in fact adopted by the council in that case, namely to ask whether the applicant "must have known" that the consequences of her misconduct could be dismissal and loss of her tied accommodation. Nor, as I have indicated, was Woolf J made aware of the formulation of the limiting principle adopted in Robinson v. Torbay BC .

15. The decision in Robinson v. Torbay BC was approved by the Court of Appeal in Devenport v. Salford City Council (1983) 8 HLR 54, at least in so far as it held that "deliberately" governs only the act or omission and not the homelessness. The applicants in Devenport had had a possession order made against them because of the misconduct of themselves and their children. The council made a finding of intentional homelessness, which was upheld by the Court of Appeal. The point presently under consideration was not raised as an issue for decision, but there are some relevant passages in the judgments. It is notable that Fox LJ (at page 63) and Waller LJ (at page 67) both refer to the statutory language of "in consequence of" without putting any gloss on it. They also examine the reasonableness of the council's finding in terms of simple causation, referring to the court order as the "immediate" or "proximate" cause of the applicants ceasing to occupy the accommodation but looking at the totality of the information available to the council as to the applicants' conduct in support of their conclusion that the council was justified in finding that the applicants had ceased to occupy "in consequence of" their deliberate conduct. The only support that the case might be said to give for any limiting principle is in the Court's approval of Robinson v. Torbay BC . Strictly speaking, that approval was limited to the point about "deliberately". But one might have expected the words of approval to be qualified if the Court had disagreed with the related passage in which Judge Goodall uses the language of "reasonable result."

16. The next reported case is R v. London Borough of Hammersmith, ex p. P (1989) 22 HLR 21. The applicants were members of six homeless families. All had occupied accommodation in Northern Ireland. It was agreed that on the material before it, the council was entitled to conclude that members of each household except one had been guilty of criminal and anti-social behaviour, as a result of which the IRA had threatened that they would all be killed unless they left Northern Ireland within 72 hours. The council concluded that all the applicants were homeless intentionally, primarily on the ground that they had ceased to occupy their homes in consequence of deliberate acts, namely their continued misbehaviour after warnings by or on behalf of neighbours. Schiemann J upheld the council's decision. It was submitted on behalf of the council that the question was one of causation; that the section makes no mention of foreseeability but where, as in that case, the immediate cause of the departure (namely the IRA threat) was foreseeable, then it was easier to say that the bad behaviour was the cause of the homelessness and it was less easy to say that the homelessness was caused by a new intervening act. Reliance was placed upon the Court of Appeal in the Devenport case.

"... Causation is of course a notorious minefield in jurisprudence and philosophy and one can always produce a perfectly plausible argument. However, I consider that the council in the present case were, on the material before them, entitled to come to the conclusion that the misbehaviour was something in consequence of which the applicants ceased to occupy their accommodation. So far as causation goes, the position seems to me to be analogous to the position in Devenport where the misbehaviour led to a court order for possession which led to the loss of the home" (pp. 26-27).

18. This looks like a "straight" test of causation, but the position is made less certain by the fact that the argument introduced the concept of foreseeability and the judgment itself refers in two places (in the middle of pages 26 and 27) not simply to the consequences of behaviour but to the "predictable" consequences of such behaviour. In any event no reference is made to the "reasonable result" approach as such; nor is it clear whether Robinson v. Torbay BC was cited directly to the court.

19. Schiemann J also went on to reject the submission that the court should, as a matter of public policy, refrain from making the applicants responsible for the acts of vigilantes and a further submission that section 60(1) ought to be construed as though the word "anything" were qualified by words such as "by way of housing conduct". As to the latter point, he cited several passages from the speeches of the House of Lords in Din v. Wandsworth LBC [1983] 1 AC 657 and concluded:

While I can recognise the oddities to which a literal construction of the section can give rise, I do not consider that it is right for me to seek to insert words into a section which Parliament has enacted, at any rate unless the word sought to be inserted manifestly accord with Parliament's intention. No form has been suggested to me of which this could with confidence be asserted and, although I have reserved judgment, I have not been able to come up with any" (pp.28-29).

20. The final case in the series is R v. Westminster City Council, ex p. Reid (1994) 26 HLR 690. In that case Mr Robert Carnwath QC, sitting as a Deputy Judge of the High Court, applied the "reasonable result" approach in terms. Having set out the passage from Robinson v. Torbay BC in which that approach is articulated, the Deputy Judge stated:

21. He accepted that the council in the Westminster case had failed to address the question whether the applicant's eviction from his accommodation was the reasonable result of a deliberate act of violence on his part. On that basis he quashed the decision. It should, however, be noted that the council had not filed evidence and was not represented, so the issue was not fully argued. There is no indication that R v. London Borough of Hammersmith, ex p. P was cited.

22. After the conclusion of argument in the present case I was supplied with a transcript of the judgment of the Court of Appeal when granting leave in the Westminster case. It is referred to in the judgment of the Deputy Judge on the substantive hearing (at 26 HLR p.691). In the Court of Appeal, Mann LJ (with whom the other members of the Court agreed) referred in terms to the "reasonable result" approach and stated that "That approach was approved by this court in R v. Salford City Council, ex parte Devenport ." Although the Court of Appeal was deciding only on the existence of an arguable case, and again the council was unrepresented and ex p. P does not appear to have been cited, the Court's acceptance of the "reasonable result" approach as having been approved in the Devenport case must plainly carry considerable weight.

24. The first question is whether the words of section 60(1) are to be taken simply at their face value, as laying down a straightforward test of causation ("in consequence of which"), or are to be qualified by reference to some limiting principle based on a concept such as remoteness or reasonable likelihood of consequences. I accept that the court must be cautious about inserting a qualification into the words of the section as enacted by Parliament (cf. Schiemann J's observations in R v. London Borough of Hammersmith, ex p. P , quoted above). In the present context, however, I am of the view that some limitation is to be implied. My reasons are these:

(1) The preponderance of authority is in favour of some such limitation. I refer in particular to Robinson, ex parte Reeve , and ex parte Reid , in all of which the court referred to the existence of a limiting principle. Devenport looks on its face like the application of a straightforward test of causation, but has subsequently been interpreted in ex parte Reid as an approval of the approach in Robinson. Ex parte P also looks on its face like the application of a straightforward test of causation, but contains hints of a limiting principle and relies on analogy with Devenport.

(2) I am impressed by the point made by Judge Goodall in Robinson that the test to be applied in relation to actual homelessness under section 60(1) and threatened homelessness under section 60(2) should be the same in order to avoid absurdity. Section 60(2), which of course looks to the future, incorporates an express limiting principle by referring to the "likely" result of the deliberate conduct. It would be surprising if the cognate provision in section 60(1) made a finding of intentional homelessness dependent solely upon causation in fact, however unlikely and remote the consequences might have been.

25. What, then, is the limiting principle to be applied? The first alternative put forward by Mr Luba is that of "remoteness" or "proximity". This, he says, is supported by the judgment of Woolf J in R v. Thanet District Council, ex parte Reeve (above). Although I have accepted that Woolf J had in mind some limiting principle, I do not think that any real weight can be placed on the particular form that his observations took. He was evidently concerned very much with the case in hand rather than with laying down any more general approach. He gave no guidance about the concepts of remoteness or proximity, save to observe that the courts would have to try to indicate from case to case where the borderline lay. Nor does a test of remoteness or proximity derive any support from elsewhere.

26. The second alternative put forward by Mr Luba is a test of "reasonable likelihood". Within that formulation he encompasses the various expressions used in Robinson: "the reasonable result" of the deliberate conduct (as applied to actual homelessness), "the likely result" of such conduct (as applied to threatened homelessness) and the fair-minded bystander saying to himself "he asked for it" (as applied to both contexts). In my view that is a helpful distillation of the approach adopted in Robinson and applied in ex parte Reid , and represents the right test. It ensures a coherent approach as between section 60(1) and section 60(2), meets many of the concerns expressed about findings of intentional homelessness in circumstances where the consequences of the deliberate conduct were unforeseeable, unpredictable or otherwise very remote, and is a workable test for councils to apply. Thus, in considering whether a person ceased to occupy accommodation "in consequence of" his deliberate conduct, the question to be asked is whether his ceasing to occupy the accommodation would reasonably have been regarded at the time as a likely consequence of the deliberate conduct. It is an objective, not a subjective, test. It might be imputed to the fair-minded bystander in possession of all the relevant facts. I do not think it necessary, however, to express the test by reference to the fair-minded bystander and I doubt whether his assistance will often be needed in applying it.

28. The final submission made by Mr Luba was that the court should apply a test of public policy. He submitted that it would be contrary to public policy to permit a housing authority to adopt as a reason for intentional homelessness the fact that the person concerned had committed an offence for which he or she had been punished by a long sentence of imprisonment. Housing authorities should not be enabled to turn away ex-prisoners who need reasonably secure housing upon which to develop their rehabilitation. Mr Luba supported this submission by reference to the Codes of Guidance and to passages in R v. Eastleigh Borough Council, ex parte Beattie (1983) 10 HLR 134 and in ex parte P (above) to the effect that it would be contrary to the policy of the legislation to treat certain kinds of deliberate conduct as giving rise to intentional homelessness.

29. In my judgment the arguments based on public policy do not carry the matter further forward. Considerations of policy may assist in the construction of the statute. Once the statutory provisions have been construed, however, they fall to be applied by local authorities and the courts alike. They cannot be disapplied by reference to the broad concept of public policy. In the present case the policy considerations advanced by Mr Luba do not cause me to doubt the construction of section 60(1) favoured above. The statute lays down no special regime for ex-prisoners and cannot be construed in such a way as to create one. Whether circumstances such as those that occurred in the present case - deliberate criminal conduct leading to a prison sentence and loss of accommodation - can justify a finding of intentional homelessness must be determined on the basis of the general test to which I have referred.

30. That leads me to the final issue, namely the application of that general test to the facts of the present case. I have expressed the view that the right test is that of reasonable likelihood - in substance the test laid down in Robinson, and put forward as Mr Luba's second alternative. Was that the test applied by the council in reaching the decision that is challenged in these proceedings? Mr Stephenson submitted that it was, although he also submitted that the correct approach was the unqualified test of causation and that the council had been unnecessarily generous in the test actually applied to the Applicant. On a fair reading of the council's decision letter, it seems clear to me that the council was indeed applying the test of reasonable likelihood or a substantially similar test. The decision letter uses the specific language of Robinson ("the ¼ reasonable result") as well as referring to causation in fact ("did as a matter of fact lead to", "the direct ¼ result"). The council's affidavit, to which no objection was taken, elaborates the reasoning process in terms that reinforce that conclusion:

"Bearing in mind his history any reasonable person would know that it was inevitable that a prison sentence would result of substantial length. Further such a person would also know that it was equally inevitable that he would not be able to retain [his previous property], throughout the term of the prison sentence. ... I concerned myself solely with the factual causal link between the events and what was the reasonable result of the deliberate actions."

31. It was further contended on behalf of the Applicant that, if that was in fact the test adopted by the council, the conclusion was irrational: no fair-minded bystander at the time of the offences would have contemplated as the "likely" result of them that the offender would lose his home. Mr Stephenson countered by observing that the fair-minded bystander must be taken to know the relevant facts of the case, namely that the Applicant had a long history of sexual offences with repeated long periods in prison; that if he committed further similar offences, there was no sensible ground for concluding that the court would deal with him otherwise than by a lengthy custodial sentence; that the Applicant was impecunious and unable to keep up payments of his rent without housing benefit; and that housing benefit would cease after he was sent to prison. On that basis the fair-minded bystander would unhesitatingly conclude that the loss of the accommodation was the likely result of committing further offences. I accept Mr Stephenson's submissions. Even leaving aside the fair-minded bystander, it does not seem to me that there is any basis for interfering with the council's decision on grounds of irrationality. The circumstances of the case, as known to the council at the time of its decision, provided ample justification for that conclusion.

32. For that reason, although I have accepted Mr Luba's submission that the approach to be adopted in considering whether an applicant became homeless intentionally is the test of reasonable likelihood rather than an unqualified test of causation in fact, I still cannot accede to this application for judicial review. In my judgment the council adopted the correct approach and reached a conclusion that was reasonably open to it. There is force in Mr Luba's submission that ex-convicts need reasonably secure housing upon which to develop their rehabilitation, but I do not think that that affects the lawfulness of the decision reached by the council under the statutory provisions in issue in this case. The application for judicial review is therefore dismissed.

37. MR LUBA: My Lord, I am obliged. My Lord, I do seek your Lordship's leave to appeal to the Court of Appeal in this matter. Your Lordship has of course decided the main and substantive point of law in the case in my favour and therefore obviously I do not seek leave to appeal in relation to that, but my application for your Lordship's leave focuses on pages 15 and 16 of the judgment, the two findings, firstly, that the respondents did apply the right test, as my Lord has identified; and, secondly, that their conclusion was not irrational. My Lord, on the first point, and it is a short point, we say that it is plain from the decision letter and the formulation in the affidavit that the respondents in this case at least took into account the pure construction point of law which my Lord has rejected as being the wrong approach in law. They have in effect sought to ride two horses, and we would seek to say to the Court of Appeal that you cannot in this jurisdiction ride two horses. The proper approach is to confine oneself to the sole legal question, which was: What was the reasonably likely result of the action? My Lord, we seek to pursue that argument and therefore your Lordship was wrong to find that the local authority had applied here the right test.

39. MR LUBA: My Lord, on one level so, but what we would contend is that my Lord has rejected our case that it was irrational to find as they did find. It does not follow therefore that my Lord has found that the contrary is the only rational conclusion. We would seek to say in the Court of Appeal that had the right tests been applied there is the possibility that a different conclusion may have been come to, and it is in that narrow respect we seek your Lordship's leave to appeal.

40. MR STEPHENSON: I would like to say two things about that. First of all, the practice in this division, as I understand it, is that leave to appeal should be refused unless there is a clear point of law of some importance to be argued. The second point is that the main point that my learned friend refers to was a point which was raised of course by me as advocate because I did not wish to concede the point that the remoteness test was the right one to apply, and I was anxious to preserve the position that the factual test was the right one to apply. I could have simply run the case on the basis of the local authority's decision letter and the affidavit that the reasonable test is Torbay, and that is what your Lordship has found in our favour. The other aspect of your Lordship's judgment which concerns my learned friend need never have arisen in this case at all in the affidavit and the decision letter. So for those reasons I invite your Lordship not to grant leave.

England and Wales High Court (Administrative Court) Decisions

LONDON BOROUGH OF HOUNSLOW EX PARTE R, R v. [1997] EWHC Admin 165 (19th February, 1997)

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R, R (on the application of) v London Borough Of Hounslow [1997] EWHC Admin 165 (19 February 1997) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/165.html Cite as: [1997] EWHC Admin 165