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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stewart v London Borough Of Lambeth [2002] EWCA Civ 753 (26 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/753.html Cite as: [2002] EWCA Civ 753, [2002] HLR 40 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(His Honour Judge Cox)
Strand London WC2 Friday, 26th April 2002 |
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B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE LONGMORE
____________________
DELROY STEWART | Claimant/Appellant | |
- v - | ||
LONDON BOROUGH OF LAMBETH | Defendant/Respondent |
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Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
London SW12 9RQ) appeared on behalf of the Appellant.
MR ANDREW ARDEN QC and MR ALISTAIR REDPATH-STEVENS (Instructed by London Borough of Lambeth, 2-7 Town Hall Parade,
Brixton Hill, London SW2 1RJ) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Friday, 26th April 2002
"(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."
"(1) This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.
(2) If the authority-
(a)are satisfied that he has a priority need, and
(b) are not satisfied that he became threatened with homelessness intentionally, they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation."
(1) A person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave 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."
"You have stated that you lost the accommodation because you were serving a term of imprisonment for drugs related offences. While you were in prison you were unable to manage your own affairs. The Council accepts that you did make arrangements for your sister to continue to maintain your tenancy during your absence. However, records show that no rent payment was made during the period of your imprisonment. On the basis of the information obtained the Council has decided that your homelessness was caused intentionally and this was a direct result of a deliberate act where you knowingly committed a criminal offence. The consequence of this act led to your imprisonment and your failure to pay your rent.
In the light of the above information the Council is satisfied that although your ability to manage your affairs may have been affected due to your prison sentence, you would have been fully aware of your responsibilities as the tenant at the property and of the consequences should you fail to pay your rent. You would also have been aware of the risks involved in participating in criminal activities."
"Your homelessness was caused because of your wilful and persistent failure to pay rent which is a condition of the agreement you signed when you accepted the tenancy. The loss of your accommodation was as a direct result of your deliberate act in knowingly committing a criminal offence for which you received a custodial sentence. By this behaviour you contributed to the loss of 30 Elias Place, London SW8 which was accommodation which was available to you and which would have [been] reasonable for you to continue to occupy."
"To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as `a settled residence', as opposed to what from the outset is known (as in Dyson v Kerrier [1980] 1 W.L.R. 1205) to be only temporary accommodation."
The intervening arrangement point
"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 v Torbay [1982] 1 All ER 726: `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 R v Westminster City Council ex parte Reid [1994] 26 HLR 690 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."
"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) above. The statute lays down no special regime for ex-prisoners and cannot be construed in such a way as to create one. Whether 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."
(1)On any sensible view of the matter, the chain of events that ultimately led to Mr Stewart's eviction began with the supply of heroin in respect of which he was in due course convicted. The statute by section 191 requires the local authority to determine whether Mr Stewart deliberately did "anything" in consequence of which he ceased to occupy the accommodation available for his occupation. One thing he deliberately did do was to supply heroin. The consequence of that was (as the local authority have decided) reasonably likely to have been his imprisonment and the loss of his flat by eviction for non-payment of rent. The mere fact that arrangements could have been or were made to avoid or avert the consequences of that eviction, does not mean that the local authority has to address its mind to those subsequent possibilities and decide, if they fail, whether that failure was deliberate or not. On such a view, it might have to make any number of further inquiries of a possibly difficult or delicate nature. An inquiry into whether an applicant such as Mr Stewart might have reason to believe that an arrangement made with a member of his family might or might not be expected to work goes much further than the statute requires.
(2)In this case, moreover, the arrangement was in fact ineffectual. Mrs Bourke says in terms in her letter of 20th July 2001 that local authority records show that no rent was paid during the imprisonment. That has not been challenged. It seems to me that an ineffectual arrangement cannot in any way break the natural chain of causation starting with the supply of heroin and ending with Mr Stewart's eviction from his flat for non-payment of rent when he was in prison. If an initially effective arrangement had been made and then later broke down, different considerations might arise. But I do not consider the local authority was in this case under any obligation to consider the arrangement which Mr Stewart said he had made but which never resulted in fact in any payment of rent as being any more than part of the narrative in relation to the events on which they relied to conclude that the loss of Mr Stewart's accommodation was the direct result of his deliberate act.
The settled accommodation point
"The position of Mr Stewart upon his incarceration was that first of all I suspect, though I do not know, that, in common with many other prisoners, he would have taken every legitimate means that he considered available to him to curtail the period of his incarceration. I know not whether he appealed or appealed against sentence, but it is to be expected that he might have done. He would have taken steps likewise to obtain release as quickly as he possibly could. He was in fact released after two and a half years of a five year sentence, albeit on licence. During the period that he was incarcerated he was perforce moved from one prison to another. He did not have in any sense a settled home in any one prison, and I have to say that my mind recoils from the idea that a cell in any one prison, for example Brixton, could be regarded as one's home and, as has been pointed out to me by Mr Redpath-Stevens in the skeleton which has placed before me, the concept of accommodation as it is defined in the Oxford English Dictionary involved at least the consideration of having one's habitual residence, house or home. It seems to me that incarceration in one of Her Majesty's prisons is the antithesis of having a home. It is just that. It is incarceration. It is detention against one's will and it seems to me that in those circumstances it cannot be said that that amounts to any sort of accommodation within the expressions used in the Act."
The untainted homelessness point
"a person who is vulnerable as a result of having served a custodial sentence"
is to have a priority need for accommodation. We have not been told that the order contains any qualification or modification of the statutory definition of the circumstances in which a person becomes homeless intentionally. If that is the case, it is presumably deliberate. But, as I say, considerations of this kind cannot govern our decision in this case.
(1) What act or omission caused the appellant's eviction from his home in February 1990?
(2)If the relevant act or omission was deliberate so that the accommodation lost was lost intentionally, was that act or omission still the material cause of the appellant's homelessness in December 2000?
"Unfortunately Mr Stewart was committed to prison and during his absence from the property his sister was unable to make the full rent payments which led to the order for possession being made.
If Mr Stewart had been at home he would never have allowed the situation to deteriorate to the point where possession was granted against him."