Housing Law Bulletin: When is settled accommodation actually settled?

Niamh O’Brien discusses the recent Court of Appeal decision on ‘settled accommodation’ and asks: when is accommodation ‘settled’?

Doka v London Borough of Southwark [2017] EWCA Civ 1523

Introduction

The ‘full housing duty’ owed by local authorities to house homeless applicants does not apply to those who have become intentionally homeless. In order to be deemed intentionally homeless the council have to be satisfied that the applicant has deliberately done or failed to do something which has caused him to lose accommodation that had been available for his occupation. Furthermore, it might not be the loss of the applicants most recent accommodation that leads to a finding of intentional homelessness; the local authority can look at the applicant’s history, sometimes many years prior to the application for housing assistance, to ask when he last had ‘settled accommodation’ and how it was that he came to cease to occupy it.

The phrase “settled accommodation” appears nowhere in the Housing Act 1996 but it is a concept that has been developed by the courts in relation to the issue of intentional homelessness. A person can be intentionally homeless from temporary accommodation, as long as it was reasonable for the applicant to continue to occupy it. However, if the local authority find that he is not intentionally homeless from his temporary accommodation it can then go on to consider whether prior to taking up residence of his temporary accommodation he lost previous settled accommodation as a consequence of his deliberate act or omission.

Thus the question of whether accommodation lost unintentionally was settled accommodation or temporary can be determinative of an application for assistance. What then amounts to temporary accommodation to enable a reviewing officer to look into the past for other potential instances of intentional homelessness? When will accommodation be sufficiently secure to ‘break the chain of causation’ in cases of prior intentionality?

The facts

In Doka v London Borough of Southwark Mr Doka was evicted from his council flat due to rent arrears in 2010. He was subsequently allowed to stay in a room in a house owned by his former employer. The room had been occupied by his employer’s son who had left home for university. It was agreed that Mr Doka would vacate the room on the occasional nights when the son returned to stay and it was agreed that the arrangement would continue until the son had finished university. Mr Doka occupied the room for 2 years, paying £500 per month. In December 2012 he was asked to leave as the son was returning home. He stayed with various friends until 2014 when he applied for housing assistance following the birth of his son. The local authority concluded that the accommodation in in his former employer’s house was not settled accommodation and so it could look to the reasons for the loss of his earlier secure tenancy. It concluded that Mr Doka was intentionally homeless as he had lost his secure tenancy due to a failure to pay his rent. His subsequent accommodation at his employer’s house did not constitute settled accommodation and so did not ‘break the chain of causation’. Mr Doka appealed unsuccessfully to the County Court and thereafter to the Court of Appeal on the ground that on any view he had occupied the room for a significant period of time and that it therefore amounted to ‘settled accommodation’.

The Court of Appeal’s Decision

Dismissing the appeal, Lord Justice Patten considered that the phrase ‘temporary accommodation’ meant accommodation that was precarious in nature and was not as such a reference to its actual duration. The court should consider the likely duration of the accommodation as contemplated at the commencement of the occupancy and the prospects of indefinite continuation or continuation for a significant period. He noted that most private lettings are 6 months assured shorthold tenancies and that these could be considered precarious when compared with old Rent Act tenancies or secure tenancies. However, he confirmed that in most cases accommodation granted pursuant to an assured shorthold tenancy, where there is no indication at the start of the tenancy that there is no prospect of renewal, would amount to settled accommodation. He noted that it might seem odd that a period of accommodation which lasted for over 2 years could be regarded as temporary whereas an assured shorthold tenancy which lasted for significantly less than 2 years would usually be regarded as settled. However, it was the nature of the arrangement that was determinative and not its actual duration. Mr Doka’s occupation of the room was always intended to be for a fixed duration, albeit for a relatively long one. Furthermore, the fact that he had to vacate the room when it was required by his employer’s son indicated that he occupied pursuant to no more than an intermittent licence.

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 be 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.