Intentional homelessness: giving up settled accommodation for a new job

On 26 November 2021, Lord Justice Lewison handed down Court of Appeal judgment in the case of Ciftci v London Borough of Haringey [2021] EWA Civ 1772 (26 November 2021) (bailii.org).

To be owed a full housing duty you must be:

• homeless
• eligible for assistance
• in priority need and
• not intentionally homeless. 

The latter is one of the most heavily litigated and has been subject to judicial scrutiny on many occasions, including in the Supreme Court multiple times. This is because it involves so many elements which rely on the specific facts of each case, so it is easy for parties to the litigation to disagree on one or more elements of whether the test is made out. It is therefore likely to remain a key area of litigation in homelessness law.

The latest judgment summarised factors to be considered when determining whether someone is intentionally homelessness, particularly in relation to awareness of relevant facts under section 191(2) Housing Act 1996 and the relevance of employment prospects. The Court of Appeal considered whether Haringey was entitled to conclude Ms Ciftci was intentionally homeless or if her deliberate decision to give up secure accommodation could be disregarded on the ground that she was unaware of a relevant fact; and acted in good faith. The appeal was dismissed on the facts.

Legislative framework

Section 191 Housing Act 1996: Becoming homeless intentionally

• 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;
• 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.

In Ciftci, the Court of Appeal considered intentional homelessness in the context of an applicant surrendering settled accommodation to move somewhere temporary. In this case, the applicant moved hoping to obtain settled accommodation in the future as the result of improved economic conditions, through a new job. However, this did not materialise and the applicant was made homeless. To be owed the main housing duty under s193(2) the applicant must not be intentionally homeless. The typical function of s191(1) would be to suggest the applicant was intentionally homeless as they surrendered accommodation that they had and which would be available to them if they had not given it up. The question for the Court of Appeal was whether s191(2) could come to the rescue such that the act of surrendering settled accommodation is not treated as deliberate on the ground that the applicant was unaware of a relevant fact and is therefore not intentionally homeless.

Case law

The first issue the Court considered was what constituted a relevant fact under s191(2), and whether a relevant fact can include facts about employment. In O'Connor v Kensington & Chelsea RLBC [2004] EWCA Civ, 394, [2004] HLR 37 , Sedley LJ cited causality and said ‘any relevant fact’ must include acts which ‘in the event have brought about the applicant’s homelessness’. Lewison LJ agreed at [19] of Ciftci:

‘The duties placed on local authorities under Part VII of the Housing Act 1996 are duties relating to homelessness; not duties relating to unemployment. Accordingly, an appreciation of future job prospects is only relevant in so far as it explains why an applicant is homeless. That is why the reviewing officer in this case was correct to say an applicant's employment situation is "not necessarily" relevant to her housing situation. It may be, if there is sufficient linkage between the two.’

In R v London Borough of Hammersmith ex p Lusi (1991) 23 HLR 260, the applicants moved to Turkey to pursue a business venture however the venture failed and they returned to the UK homeless. It was the failure of the venture and consequent lack of earnings that was found to have caused the homelessness rather than the giving up of settled accommodation that caused the homelessness. In R v Exeter City Council ex p Tranckle (1993) 26 HLR 24 the applicants left settled accommodation to move into and open a pub however they were misadvised to the profitability of the venture and fell into debt. It was the debt that caused the homelessness rather than the giving up of settled accommodation. Both these cases are examples where employment issues can explain why an applicant is homeless. It should be noted both these cases predate the Housing Act 1996.

The second issue to consider is if the applicant’s ignorance of the relevant fact is in good faith and can disregarded under s191(2). The key case Lewison LJ relies on in his judgment is Afonso-da-Trindade v Hackney LBC [2017] EWCA Civ 942. In his judgment from that case, Sales LJ states the applicant needs to show:

‘an active belief that a specific state of affairs would arise based on genuine investigation about those prospects and not on mere aspiration.  Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of s.191(2).’

It is noted in Ciftci that it is for the applicant to show the local authority they have made genuine investigation and not left settled accommodation ‘on a wing and a prayer’  as was termed in Aw-Aden v Birmingham City Council [2005] EWCA Civ 1834. In that case, the Court held that an appreciation of the prospect of future housing or future accommodation could amount to a relevant fact provided it was sufficiently specific; and provided it was based on some genuine investigation and not mere aspiration.

Facts of this case

Ms Ciftci is a disabled single parent. She is a double amputee, has prosthetic legs and walks with crutches. Between 2007 and January 2019 she had the equivalent to an assured tenancy of a two-bedroom ground floor flat in Switzerland, where she lived in with her son. It was suitable in every way. In January 2019 Ms Ciftci gave up the flat and arranged to go to the UK with her son. The account accepted by the review officer was ‘that she moved to England because she had been told by her sister that she could stay with a family and that there was a job in the UK for her. The job that her sister had found for her was at Rainbow Meats. But it was short-lived and Ms C was unable to do the work because of her disability. The accommodation was with the Tosun family and amounted to being able to sleep on a sofa-bed with her son and their dog.’

The reviewing officer concluded that Ms Ciftci was intentionally homeless because, under s191(1), she became homeless intentionally as she deliberately surrendered her settled accommodation in Switzerland, in consequence of which she ceased to occupy available accommodation it was reasonable to continue to occupy.

When considering s191(2), the reviewing officer decided that Ms C was not unaware of any relevant fact to disregard her deliberate act. He said ‘I am satisfied that you were fully aware of the need to find settled accommodation before relinquishing your tenancy. You would know that moving into someone's living room with a child and a dog, and making the property overcrowded would be precarious and temporary’.

The reviewing officer decided that she had come to England ‘on a wing and a prayer’; and further decided that the fact that she did not fully explore with her sister the nature and extent of the accommodation she would be providing did not amount to a genuine investigation.

Judgment

In this case, Lewison LJ found that the reviewing officer was entitled to find that Ms C ‘did not make sufficient planning in coming to the UK regarding employment or housing’ and that the issue of employment is not ‘necessarily’ relevant. The deliberate act in this case was surrendering of settled accommodation for precarious temporary accommodation as that caused the homelessness, rather than the failed pursuit of employment.

Lewison LJ agreed with the two stage test set out by Sales LJ in Afonso-da-Trindade.

• Was the expectation about the future an ‘active and informed understanding’ of future housing prospects? If not, then the expectations do not amount to a fact.
• Was the loss of employment relevant to homelessness? If not, then even if there is a fact, it is not a relevant one.

In this case, the facts are comparable to Afonso-da-Trindade and Aw-Aden where employment expectations were not sufficiently informed or relevant to homelessness. The case can be distinguished from Lusi and Tranckle where employment was researched and relevant to the eventual homelessness.

This situation may be particularly relevant if an applicant was made false promises by friends, family or agents before moving within the UK or from abroad - can the applicant show the enquiries they made and relied upon before giving up settled accommodation? Applicants would be well advised to think carefully before surrendering suitable, settled accommodation. To show good faith applicants should demonstrate they made genuine investigation and research into where they might live and researched the reality of their job prospects. It would also be advisable to keep evidence such as emails from prospective employers and literature such as job adverts in case an applicant needs to justify their decision to leave settled accommodation later.