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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bernard v London Borough Of Enfield [2001] EWCA Civ 1831 (04 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1831.html Cite as: [2001] EWCA Civ 1831, [2002] HLR 46, [2001] NPC 178

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE HODGE
EDMONTON COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th December 2001

LORD JUSTICE MUMMERY :

1. This is an appeal by Mr Eston Bernard from the order of His Honour Judge Hodge sitting in the Edmonton County Court on 1 December 2000. The judge dismissed Mr Bernard's appeal under Section 204 of the Housing Act 1996 (the 1996 Act) against the decision of the London Borough of Enfield (the Council) on a review under Section 202 of the same Act. Mr Bernard had requested the Council, as the local housing authority, to review its decision notified by letter dated 29 June 2000 that Mr Bernard had become homeless intentionally, having deliberately failed to make payments for his accommodation, the consequence of which was the loss of that accommodation. The decision on the review was notified to Mr Bernard by letter of 3 October 2000. For the reasons stated in that letter the council concluded that it was satisfied that Mr Bernard was homeless intentionally.
2. Under Section 204 an appeal only lies on a point of law arising from the review decision or, as the case may be, the original decision. In the court below Mr Bernard advanced four grounds of appeal:

i) in breach of duty under section 184(1) of the 1996 Act the Council failed to carry out necessary or procedurally fair enquiries;

ii) in breach of duty under Section 203(4) of the 1996 Act the Council failed to provide adequate reasons;

iii) in breach of its general public law duties, the Council failed to have regard to relevant considerations; and

iv) the Council's decision was wrong, alternatively Wednesbury unreasonable.

3. His Honour Judge Hodge rejected all four grounds of appeal. As to ground (ii) the judge held

"The reasons set out in the review decision are, in my view, clear enough. They deal with the issues raised in relation to the failure to pay the ineligible charge. I do not consider they are in themselves inadequate, nor that that should be a ground for allowing this appeal. So that particular ground is rejected"

4. The judge refused permission to appeal.
5. Mr Bernard then made an application to this court for permission to appeal on three grounds:

"(i) the learned judge erred in holding that the Council had complied with its statutory duty to carry out necessary and procedurally fair enquiries into the appellant's case;

(ii) The learned judge erred in law in holding that the Council had complied with its statutory duty to provide adequate reasons for its decision;

(iii) The learned judge erred in law in not holding that, on the facts, the Council's decision was Wednesbury unreasonable."

6. When the application was dealt with on the papers Chadwick LJ granted permission limited to an appeal on ground (ii). In his reasons he stated

"I am satisfied that there is a point of principle of sufficient general importance to merit consideration by the Court of Appeal on a second appeal.

The point is whether, in the light of the decision in the Court of Appeal in R –v- London Borough of Wandsworth, Ex p Hawthorne (1994) 27 HLR 59, a decision letter under section 203(3) of the Housing Act 1996 complies with the duty to give reasons imposed by Section 203(4) of that Act if it fails to explain as to why the authority had taken the view that the applicant's failure to pay rent was deliberate and not the result of an inadequacy of resources to meet the applicant's financial commitments.

I am not persuaded that there is any other point of principle raised by the proposed appeal which merits consideration; nor any other reason why an appeal should be entertained by the Court of Appeal."

The Legislation

7. Part VII deals with homelessness generally and, in particular, with the duties of the local housing authority to persons who are found to be homeless, or threatened with homelessness. There are specific provisions in relation to persons who the local housing authority are satisfied have become homeless intentionally. Section 191 provides

"(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."

8. Where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority has reason to believe that the applicant may be homeless or threatened with homelessness, the authority is under a duty under Section 184 to make such enquiries as are necessary to satisfy themselves

"(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part."

9. Section 184(3) provides that

"On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."

10. The notice also has to inform the applicant of his right to request a review of the decision and of the time within which such a request must be made: section 184(5).
11. Under Section 202 an applicant has the right to request a review of any decision of a local housing authority as to his eligibility for assistance and as to what duty (if any) is owed to him as a person found to be homeless or threatened with homelessness. On a review the authority must follow the procedure laid down in section 203. They must notify the applicant of the decision on the review. Section 203 (4) provides

"If the decision is –

(a) to confirm the original decision on any issue against the interests of the applicant, or

(b) ….

they shall also notify him of the reasons for the decision."

12. Under Section 204, if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review, he may appeal to the county court on a point of law. On appeal the county court may make such order confirming, quashing or varying the decision as it thinks fit: section 204 (3).

The Facts

13. In his judgment HHJ Hodge described the appalling problems faced by Mr Bernard, his wife and their six children. Mrs Bernard suffers from long standing hemiparesis. She has very little use of one arm and one leg. She suffers from hypertension. She is doubly incontinent. Long term care for her has been provided by Mr Bernard for a considerable time.
14. Towards the end of October 1998 the family was housed by the Council in accommodation at 45 Steele Road, Tottenham, N17, under the powers contained in Section 188 of the 1996 Act. The rental was nearly £160 a week, most of which should have been paid for by housing benefit. There was, however, a figure, which came to be £29 a week, that was ineligible for housing benefit. Mr Bernard was expected to meet that sum out of his general resources.
15. In June 2000 the family was evicted from 45 Steele Road owing arrears of rent totalling £9,663.97. Mr Bernard had written to the Council as early as 4 October 1999 referring to the nature of his wife's disability and to the amount of money that the family was having to spend on keeping household goods in storage and on petrol taking the children to and from school and the consequent difficulties which they had in making the weekly payments then £21.74, but later rising to £29. Fortunately, the rental element of £160 a week has now been met by housing benefit, but most of the £29 a week ineligible for housing benefit remained unpaid.
16. Mr Bernard applied to the Council for assistance with housing under the 1996 Act. In the decision letter dated 29 June 2000 the Council stated that they were satisfied that they were homeless, and then went on to consider whether it was a case of intentional homelessness. On that question the letter stated

"The council are satisfied that you have had your accommodation at 45 Steele Road cancelled by this Council for non-payment of your ineligible charge. This generated a new cause of homelessness, in circumstances amounting to intentional homelessness. The reasons for this are:-

Your deliberately failed to make payments for your accommodation, the consequence of which resulted in the loss of your accommodation.

This accommodation was reasonable for you to occupy and but for your non-payment, would have continued to be available for your occupation.

You were provided with this accommodation on 31 October 1998 and have failed to make any payments for this accommodation during this time. This deliberate act was not conducted in good faith.

You also failed to respond to requests for clarification/information from our Housing Benefits Team. The result of this act being that your Housing Benefit claim could not be processed and you accrued arrears for your accommodation totalling £9,663.97.

Despite various efforts to secure payment from you, you have refused."

17. The letter went on to state the Council had considered the family's circumstances, including the fact that Mrs Bernard was disabled and the fact that they were in receipt of state benefits, but concluded that the Council remained satisfied it was reasonable for Mr Bernard to pay the ineligible charges and co-operate with the Housing Benefit Team in processing and ensuring the award of Housing Benefit. The letter also stated that the Council was satisfied that Mr Bernard was fully aware of his obligation to make payment and that he had received adequate warning of the consequences of non-payment and knew that the consequences would result in homelessness.
18. On 25 July 2000 solicitors acting for Mr Bernard, Messrs Tyrer Roxburgh & Co, wrote to the Council requesting the statutory review of the decision notified in the letter of 29 June 2000 pursuant to section 202 of the 1996 Act. The letter dealt separately with the various bullet points set out as reasons for the Council's assertion that Mr Bernard was intentionally homeless. In respect of the Council's statement that Mr Bernard deliberately failed to make payments for his accommodation, the solicitors contended that the Council had come to that conclusion " by way of inadequacy of inquiries." The letter added that

"The reason our clients had not been able to pay the short fall between their rent and Housing Benefit is that our clients have been placed into accommodation which is grossly unsuitable for them and have, as direct consequence of Enfield Council's breach of statutory duty, incurred substantial expenses which would not have otherwise been incurred."

19. Reference was made to Mrs Bernard's medical condition and to the fact that the family had to incur additional family expenses which would not have arisen in accommodation which was suitable for her needs. A list of items of expenditure was set out, but no attempt was made to quantify the sums involved, either individually or globally.
20. On 3 October 2000 the Council wrote to Mr & Mrs Bernard referring to the earlier decision of 29 June 2000 and notifying them of the Council's decision on the review. The letter confirmed that the Panel determining the request for a review was satisfied that Mr & Mrs Bernard were homeless from 45 Steele Road after the Council cancelled their accommodation. On consideration of the substantive decision that they were intentionally homeless it was stated that the Panel had carefully considered the provisions of section 191 of the 1996 Act and, in applying the Act to their circumstances, had appraised themselves of the facts of their case. The letter set out a detailed account of those circumstances, including the fact that Mr & Mrs Bernard signed an agreement to pay a charge of £159.77 per week towards their accommodation at 45 Steele Road, subject to the award of Housing Benefit and to the fact that there was an ineligible payment of what was originally £21.74 per week for water rates, heating, light and hot water plus breakfast supplies. Note was taken of the facts in a letter of October 1999 referring to payments for storage of goods and expenditure of petrol on school journeys. Reference was also made to the building up of arrears on the rent account. The letter stated that the Panel had considered all the material before them, including submissions made on the Bernards' behalf by their solicitors, and had concluded that it was satisfied that they were homeless intentionally. The letter set out the reasons for that conclusion, including the following

" The Panel are satisfied that you deliberately lost this accommodation by your non-payment of accommodation charge and that this non-payment was not conducted in good faith.

The Panel are satisfied the accommodation would have continued to be available but for your deliberate act of non-payment."

21. The letter went on to explain that the Panel had considered the Bernards' income of £366.05 per week and the submissions that they had additional expenses meeting Mrs Bernard's needs. It was stated that the Panel was satisfied that it was reasonable to pay their ineligible charge of £29 and that the sanitary provisions were available via the NHS and incontinence support staff. Finally, the letter explained that submissions had been made by their solicitors that they could not pay the shortfall between the Housing Benefit and " their rent", but the Panel was satisfied that they had an ineligible charge to pay for the services described earlier in the letter, which was reasonable and affordable for them to pay. The Panel had regard to their income and stated

"Whilst it had never been put on notice of your submission you were unable to pay prior to the review, did give regard to it at the Panel."

The Appellant's Submissions

22. Mr Knafler, on behalf of Mr Bernard, submitted that the decision letter on the review failed to comply with the statutory duty on the Council to give adequate reasons for the conclusion that the Bernards were intentionally homeless and, in particular, for the statement that the Panel were satisfied that they had deliberately lost the accommodation by non-payment of the accommodation charge and that this non-payment was not conducted in good faith. The essence of his submission was that the decision letter failed to deal properly with the affordability of the ineligible charges. It did not appear from the letter that any findings were made by the Council as to what reasonable living expenses Mr Bernard had to pay and whether that left sufficient to cover the ineligible charges. He contended that, in order to comply with their obligations to give reasons for the review decision, the Council should, at the very least, have set out in the letter an itemised list of quantified reasonable living expenses. He submitted that, in deciding whether the non-payment of the ineligible charges was deliberate or not, the Council had to make inquiries as to the adequacy of the Bernards' resources and whether they could afford to pay those sums. On this point he relied heavily on the decision of this court in R-v-London Borough of Wandsworth Ex Parte Hawthorne (1994) 27 HLR 59, a decision referred to by Chadwick LJ in granting limited permission to appeal. Mr Knafler cited the judgment of Nourse LJ, which was concurred in by the other two members of the court. He said at p. 63

"…… in deciding whether the applicant's failure to pay rent was deliberate, the council was bound to consider whether it was caused by the inadequacy of her resources to cover both the rent and the maintenance of her children. Since they did not consider that question, the applicant is entitled to the relief granted her by the judge."

23. Earlier in his judgment Nourse LJ had expressly rejected the submission made on behalf of the council that a person does, or fails to do something, "deliberately" if he makes a considered choice between two courses of action or inaction, either of which he is able to take. As Nourse LJ pointed out, that could not be the correct interpretation of the word "deliberately" in this context when the purpose of the legislation was to house the homeless and that it was no part of that purpose to refuse housing to those whose homelessness had been brought upon them without fault on their part, for example by disability, sickness, poverty or even a simple inability to make ends meet. He said

"Whether, in a case of non payment of rent, there is a sufficient nexus between the cause relied on and the failure to pay to establish that it was not deliberate would be for the housing authority to consider and decide upon. But, as the judge said, consider it they must."

24. Relying upon that passage Mr Knafler contended that the Council were bound to consider whether Mr Bernard could afford to make the payments in question and, in doing that, they had to ascertain and quantify the various items of reasonable living expenses falling upon him. That exercise was necessary in order to decide whether the payments made were affordable by the family. On this part of the case he sought to derive support from the detailed provisions of the Homelessness (Suitability of Accommodation) Order 1996 (SI 1996 No. 3204). The Order sets out matters to be taken into account in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation and, in determining whether the accommodation is suitable for a person, it is directed that there shall be taken into account whether or not the accommodation is affordable for that person and, in particular, specified matters, such as financial resources available to that person, the costs in respect of the accommodation and that person's other reasonable living expenses.
25. Mr Knafler argued that in the Council's letter of 3 October there was no adequate explanation from the Council of the reasons for their conclusion that the non-payment of the sums in question was as a result of a deliberate act or omission on their part, as distinct from an inability to afford to make the payments. The Council were under a duty to make enquiry on those points and to set out their reasoning in the decision. The failure of the Council to discharge their duty to make the necessary inquiries on the individual items of living expenses meant that the reasons given for the Council's decision on deliberate failure to make payments were inevitably inadequate.

Conclusion

26. During the course of the hearing it was necessary to remind Mr Knafler more than once of the limited nature of the permission to appeal. Under the order of Chadwick LJ he was only permitted to rely on the ground of appeal that the Council had failed to comply with their statutory duty to provide adequate reasons for their decision. He was not entitled to advance a ground of appeal that the Council had failed to comply with their statutory duty to carry out necessary or procedurally fair enquiries into the Bernards' case or that the decision was Wednesbury unreasonable in failing to take relevant matters into account or as being a decision which no reasonable housing authority could have reached. In crucial parts of his argument Mr Knafler was in fact submitting to the court that the Council had failed to carry out proper inquiries into the living expenses of the Bernards and had therefore failed to take them into account in the making of the decision, as was evident (he said) from their failure to give adequate reasons for their decision.
27. As for the duty to give reasons, I would refer to the decision of this court cited by Mr Knafler, R-v- Westminster City Council , Ex parte Ermakov [1996] 2 All ER 302. At p. 309f Hutchison LJ said:

"It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the persons affected by the decision may know why they won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengable, or invalid and therefore open to challenge."

28. Hutchison LJ cited other authorities emphasising that the reasons given must be proper, adequate and intelligible and deal with the substantial points that have been raised.
29. In my judgment, the reasons given in the review decision letter of 3 October 2000 satisfy all those requirements. As Harrison J pointed out to Mr Knafler in the course of the hearing the reasons given for the decision were sufficient to enable Mr Bernard and his advisers to identify an alleged failure on the part of the Council to carry out the proper and procedurally fair enquiries which they were bound to carry out. The reasons in the letter were sufficient to satisfy the purpose of providing them, but Mr Knafler was prevented, by reason of the limited nature of permission, from pursuing an argument that there was a failure to carry out those enquiries or a failure to take relevant matters into account.
30. I agree with the submission of Mr Matthias on behalf of the Council that the Panel complied with the approach indicated by Nourse LJ in Ex parte Hawthorne. The Panel did not fall into the error that the housing authority committed in that case, namely treating inability to meet the requisite payments as irrelevant to the issue whether or not such failure to pay them was deliberate. It is clear from the decision letter that, in deciding whether Mr Bernard's failure to pay the ineligible charge of £29 a week was deliberate, the Panel considered whether that failure was caused by the inadequacy of Mr Bernard's resources to cover the ineligible charge and other outgoings. It was unnecessary, in order to comply with the statutory requirement to provide reasons for the decision, to set out arithmetical calculations or itemised quantifications of the various expenses of Mr Bernard and his family.
31. I have not derived any assistance from the provisions of the Homelessness (Suitability of Accommodation) Order 1996 relied on by Mr Knafler. The relevant issue in this case was whether the non-payment of ineligible charges was deliberate or not. In determining that question it was necessary to consider whether the non-payment was the result of inability to pay rather than of a deliberate decision not to pay. It is true that the 1996 Order requires that there should be taken into account, in determining certain questions, whether the accommodation is affordable for that person and, in particular, the person's financial resources, costs and living expenses. But the 1996 Order is not concerned with the issue whether non-payment is deliberate or not: it is concerned with the itemised matters in so far as they are relevant to the different issues of whether it would be reasonable for a person to continue to occupy accommodation and whether that accommodation is suitable for a person. There is nothing in the Suitability Order which requires the Council to set out in their reasons for their decision on intentional homelessness in this case detailed arithmetical calculations in the form of an itemised "balance sheet" of the person's financial resources, accommodation costs and other reasonable living expenses specified in that Order.
32. In brief, I agree with His Honour Judge Hodge that the Council's decision letter complied with the statutory duty to provide adequate reasons for their decision that Mr Bernard was intentionally homeless. As inadequacy of reasons is the only permitted ground of appeal, it fails and I would dismiss the appeal.

Mr Justice Harrison – I agree

Lord Justice Buxton – I also agree

Order: Appeal dismissed with costs not to be enforced without leave of the court subject to detailed assessment; leave to appeal refused. (Order not part of approved judgment)