Supreme Court says intentionality should be considered at time of decision not application.

A Supreme Court case, Haile v London Borough of Waltham [2015] UKSC 34, decided that Housing Officers should not base decisions on intentionality on the applicant’s circumstances at the time they became homeless. Rather the authority should consider the applicant’s circumstances at the time the decision is being made.  This judgment will have a significant impact on homelessness decisions and it is important that advisers fully understand its impact.

Applicant gives up tenancy due to unpleasant smells

In October 2011 Ms Haile, the appellant in the case, surrendered a tenancy in hostel accommodation due to unpleasant smells. She had held an assured shorthold tenancy in the hostel for 16 months.  The hostel she was staying in provided bedsit accommodation for single people and did not provide accommodation for lone parents. 

On leaving the hostel, Ms Haile stayed with friends temporarily for a month before asking the council for homelessness assistance.  At the time of applying to the council, Ms Haile was four months pregnant. Ms Haile applied to the council for homelessness assistance.  Ms Haile gave birth in February 2012 and the council issued a decision in August 2012 to say that she was intentionally homeless, as she had voluntarily surrendered her tenancy.

The basis of Ms Haile’s case was that she would not have been able to remain in the hostel accommodation now that she had a baby, regardless of her original reasons for leaving the accommodation, and so should not be regarded as being intentionally homeless.

When is someone intentionally homeless?

Homelessness legislation in England echoes our own laws in Northern Ireland and only provides rehousing assistance to those people who have a priority need and are unintentionally homeless. 

A person may be intentionally homeless, and therefore not entitled to homelessness status if he or she has intentionally done or failed to do something and must leave accommodation that is reasonable for them to continue to occupy as a result of that action.   The purpose of these provisions, as expressed in this judgment by Lord Reed, is “to prevent queue-jumping by persons who, by intentionally rendering themselves homeless would …obtain a priority in the provision of housing to which they would not otherwise be entitled”

Legal challenges to intentionality

The council’s original decision that Ms Haile was intentionally homeless because she had voluntarily left the hostel was upheld on review and on appeal to the lower courts. 

The case then came before the Supreme Court, which reviewed in detail the development of the issue of intentionality through legislation and case law.

The issue raised on the appeal to the Supreme Court was whether the review officer was entitled to be satisfied that the appellant became homeless intentionally, on the basis that she deliberately gave up the accommodation in the hostel, given that she would have been homeless in any event by the time her application was considered.

It was contended that the birth of the baby “broke the chain of causation” between the appellant’s leaving the hostel and her state of homelessness when the application was considered.

Relevant case law informing the decision

The Supreme Court discussed the leading cases, particularly Din v Wandsworth London Borough Council [1983] 1 AC 657 in which the Lords held by a 3-2 majority that the relevant date for determining intentionality was the date when the person left the accommodation. The Court of Appeal relied upon Din when upholding the council’s original decision. However, Lord Reed stated
“… (the Din case) reflected the concessions made and the state of the law at that time. As I have explained, a case on similar facts would not now be approached in the same way.

The Supreme Court also considered the case of R v Hammersmith and Fulham London Borough Council Ex p P (1989) 22 HLR 21, where the applicants had fled Belfast after having been ordered to leave by the IRA, on pain of death, as a result of their anti-social behaviour. In that case the court had held that the authority were entitled to conclude that the applicants were intentionally homeless, since the threat by the IRA was a consequence of the applicants’ conduct, not a intervening act breaking the chain of causation between their conduct and their homelessness.

Birth of baby broke causal connection for determining intentionality

The Supreme Court held that the causal connection between Ms Haile’s homelessness and leaving the hostel was interrupted by the birth of her baby, a notable subsequent event that would have impacted on her ability to continue to live in the hostel accommodation.

The court held that

“the birth of the baby meant that the appellant would be homeless, at the time when her case was considered, whether or not she had left the hostel when and for the reasons that she did. She had not therefore jumped the queue as a result of her earlier decision to surrender the tenancy”.