It's reasonable to rely on the court's decision

The background

The appellants were tenants of a house let to them by a private landlord. The rental for the property increased from £650 to £700 per month although a formal notice of increase was never served.

Initially the appellants queried the increase, but did subsequently pay that increased amount before eventually falling into arrears and possession proceedings were issued. The particulars of claim incorrectly stated that the monthly rent was £650, not £700. However, the details of the amounts demanded, paid and the outstanding balance all indicated that £700 per month was the correct figure. The appellants had paid that sum on numerous occasions since the rental increase but had only paid £650 on one occasion.

A possession order was made against the appellants based on the rent arrears and they subsequently applied to Croydon for housing assistance under Part 7 of the Housing Act 1996. Croydon refused to house them finding that they were intentionally homeless because they had been evicted for rent arrears. The appellants unsuccessfully appealed that decision pursuant to s 202 of the Housing Act 1996.

The appeals

Ultimately the appellants appealed to the Court of Appeal. The allegation was that Croydon was in breach of duty to the appellants as it had failed to investigate properly the appellants' assertion that their rent was only £650 and not £700 per month, and on which basis there would have been no arrears, or no significant arrears, at the time of the possession hearing.

Croydon were on notice as to the disputed arrears and should have made further inquiries to establish whether or not the district judge's decision that the appellants had fallen into arrears was correct.

What duty is owed?

Pursuant to s 184 of the Housing Act 1996, " If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness they shall make such enquiries as are necessary to satisfy themselves whether -

1. He is eligible for assistance, and
2. If so, whether any duty, and if so what duty, is owed to him..."

The question is what is necessary in the circumstances of the particular case. A challenge to the decision of a reviews officer presents a very high hurdle and will only be successful if the decision made is one that no reasonable council could have reached on the available evidence.

What review had Croydon undertaken?

The reviews officer had considered the representations made by the appellants at the possession hearing and the record of their rent account which showed that £700 had been demanded and paid by the appellants on many occasions. Consideration had also been given to the level of arrears at various year ends: the various notices served by the landlord over a sustained period of time; notes of an interview on 3 January 2006 when the appellants had admitted, at that time, to having arrears exceeding £2,000 and that there had been a verbal agreement as to the increase in the level of rent.

On the basis of the evidence available, the reviews officer had concluded that there had been a persistent and deliberate failure to pay rent and that the appellants were intentionally homeless.

Had Croydon erred in law in failing to make all necessary enquiries?

No, said the Court of Appeal, on the facts of this particular case. The reviews officer was faced with a decision of a court of competent jurisdiction which was consistent with a finding that the monthly rent was £700.

The Court of Appeal held that, in the circumstances of this case, it was impossible to say that any reasonable reviews officer would have carried out any further investigation into the level of rent in the light of the court's decision. It was not necessary to embark on inquiries designed to go behind the court's decision.

The Court of Appeal declined to determine however, whether it was the case that an authority could never be obliged to go behind what a court has seemingly decided on a possession action when determining whether homelessness was intentional or not. That issue was left for another day and another set of circumstances. However, the court did say that in a normal case a housing authority can rely on what a court decides and it would have to be an extreme case which would be abnormal enough to require a different view to be taken.

Comment

This decision is good news for local authorities whose reviews on decisions under Part 7 of the Housing Act 1996, in cases similar to this, should not, in all but the most unusual and extreme circumstances, be easily appealed. This is so long as a reasonable review process has been established, followed and documented.

Where there has been a decision of a court of competent jurisdiction, applicants for housing in such cases should consider appealing the court's possession order, rather than seeking judicial review of the local authority's review procedure.

The consequence for local authorities is that only in the most extreme cases will an authority be required to carry out enquiries going behind a judgment in possession proceedings. The circumstances of that case must be so abnormal that they require a different view to be taken.