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Mathew McDermott discusses how relevant, if at all, the questions of hindsight and one’s own understanding of one’s security of tenure are when looking at whether or not accommodation is ‘settled’.
To what extent is a tenant’s mistaken but honestly-held understanding of their security of tenure relevant when asking if accommodation is ‘settled’ for the purpose of Part VII of the Housing Act 1996?
A few months ago I successfully represented an appellant challenging a local authority’s finding pursuant to section 202 of the Housing Act 1996 that she was ‘intentionally homeless’. The case concerned the concept of ‘settled accommodation’ and, in particular, whether accommodation can be such where the applicant feels when moving in that it is but in fact – although he or she could not know it – it was nothing of the kind.
My client, the appellant, had had to leave a property let to her under an assured shorthold tenancy due to arrears of rent. I shall call this ‘Property A’. There was on the face of it at least an argument that she was intentionally homeless from Property A, although there was little focus on this point as the main issue concerned the concept of ‘settled accommodation’, on which the law is clear: the ‘chain of causation’ can be broken if the applicant has since found what is known as ‘settled accommodation’. To put it differently, an applicant that was intentionally homeless from one property may be able to shake off that status if he/she has since found ‘settled accommodation’ (say, for example, at ‘Property B’). My client argued that her ‘Property B’ (to which she moved after Property A) was indeed ‘settled accommodation’; the local authority said that it was not and that it was lawful to look only at Property A. Why did they disagree?
Following my client leaving her ‘Property A’ due to arrears of rent, she had found her ‘Property B’ and signed a two-year fixed term assured shorthold tenancy agreement. She paid a large deposit upfront and rent to the landlord’s agent (to whom I shall presently return). In total, she had paid £5600. She received the keys and accordingly moved in, ready to enjoy her two-year fixed term. She had, incidentally, found the property via the same agent.
What my client did not know – and, importantly, the local authority accepted what follows when it made its findings – was that the agent had deceived her. He had no authority to act on behalf of the owner of Property B and – so it seemed – had deceived him as well (nor, it seemed, had he ever received the money paid to this ‘agent’). Around a month after my client had paid, signed up and moved in, the owner of Property B found out what the agent had done and promptly took High Court proceedings against my client as a trespasser, resulting in him obtaining possession and leaving my client homeless. She made an application for assistance to the Respondent authority under Part VII of the Housing Act 1996.
Both at the original s.184 stage and upon review under s.202, the authority found that ‘Property B’ was not ‘settled accommodation’, meaning it was entitled to look back at Property A. The chain of causation had not been broken, and the applicant was intentionally homeless. Yes, so the authority said, my client may have felt that she was getting settled accommodation, but within a month the reality of the situation was discovered – and that reality was very different. She had been tricked, but that did not change the fact that Property B could not in any real sense be ‘settled accommodation’. She had no permission from the owner to occupy and was trespassing. It had found in the s.202 review decision that Property B was not in reality permanent and secure and the original s.184 decision was therefore upheld.
My client appealed to the County Court pursuant to s.204 of the Housing Act 1996.
The appeal was successful.
Whether accommodation is ‘settled’ or not is a question of fact and degree (see Din v Wandsworth BC — unreported but cited in Lambert v Ealing LBC  1 WLR 55), and a number of cases were cited in argument suggesting that the applicant’s knowledge ‘at the outset’ – indeed, this phrase is used in Din itself – is vital when undertaking this evaluative exercise. The learned Recorder also cited R . Croydon LBC ex p. Graham (1994) 26 H.L.R. 286 where Sir Thomas Bingham, M.R (as he then was) said that the question an authority ought really to be asking itself was whether or not the accommodation appeared to be, or should have appeared to be, precarious.
The authority having accepted that my client had been deceived by the ‘agent’, it had imposed too high a standard when talking about permanency and security and had therefore erred.
Whilst of course not binding, this is an interesting case raising an interesting question: to what extent is one’s subjective and honestly — yet mistakenly — held belief about their security relevant when considering the question of ‘settled accommodation’? Of course, when the law imposes a test of ‘fact and degree’ it is saying no more than: ‘it depends on the case’. But, in my view at least, in to that pot must go the subjective view of the applicant. If that view is not honestly held (or, perhaps, not reasonably held) then things would be very different, but if that is not the case – as was so here — then one must bear in mind that hindsight is a fine thing and that it is rarely sensible to rely on it.
DISCLAIMER: This bulletin is no more than a summary of the case, chosen selectively for the purposes of discussion only. It is not legal advice and should not treated as such. It should not be relied upon in any respect. Recipients should seek legal advice if proposing to take action following this commentary.