Making a Din: Re-visiting intentional homelessness

Virginia Cooper, Bevan Brittan

Supreme Court judgments on Part 7 of the Housing Act 1996 seem like buses at the moment. You wait for ages and then three come along at once. For the third time in two months the court has changed the way that everyone thought about key concepts in homelessness law. Hot on the heels of Nzolameso (suitability of accommodation) and Hotak (priority need) comes Haile v Waltham Forest LBC [2015] UKSC 34 which re-visits the most longstanding and important House of Lords decision on intentional homelessness (Din v Wandsworth [1981] UKHL 14) and manages – just about – not to overrule it, while at the same time changing what everyone thought it meant.

The facts

Ms Haile was a tenant of a hostel in Leyton. It was a term of her tenancy that the room could only be occupied by a single person (which at the time she was). She surrendered her tenancy in October 2011, apparently because of an unpleasant smell in the building. She then moved into temporary accommodation. After one month she had to leave that accommodation (through no fault of her own). She then applied as homeless. In December 2012 she gave birth. The council decided that she had become homeless intentionally because she voluntarily gave up the hostel accommodation that was (at the time) reasonable for her to continue to occupy. The council decided that her subsequent pregnancy was irrelevant to the question of her intentional homelessness. That decision was upheld on review, by the county court, and by the Court of Appeal. Ms Haile appealed to the Supreme Court.

Part 7 Housing Act 1996

A person who is in unintentionally homeless and in priority need must be provided with temporary accommodation (section 193 Housing Act 1996). A person becomes homeless intentionally if as a result of an act or omission they cease to occupy accommodation that was reasonable for them to continue to occupy (section 191).  A person with a dependent child is in priority need (section 189).  In Din v Wandsworth [1981] UKHL 14 the House of Lords held that the date for determining whether a person is intentionally homeless is the date on which the person left the accommodation, not the date on which they applied to the local authority for assistance.

The Supreme Court judgment

The Supreme Court allowed the appeal. The court defined the issue as whether the council was entitled to decide that the applicant was intentionally homeless, on the basis that she gave up her hostel accommodation, given that she would have been homeless in any event by the time her application was considered (because she had by that time a dependent child and would therefore not have been able to continue to occupy the hostel accommodation under the terms of her tenancy there).

It is well established that there must be a causal connection between the relevant act or omission that led to the loss of accommodation and the present incidence of homelessness. As the court noted, a person evicted for rowdy behaviour while a teenager cannot be intentionally homeless from accommodation they innocently lose as a pensioner. The question is how that chain of causation is broken. Obtaining settled accommodation is the most obvious way, but are there others?

The court reviewed post-Din cases to find the answer. It concluded that the correct legal test was “whether, in light of the intervening event, it cannot reasonably be said that, but for the applicant’s deliberate conduct, he or she would not have become homeless.” The court managed to convince itself that this reasoning was consistent with Din.

Applying this test, the court found that because Ms Haile, by the time of her application,  would have been unable to continue to occupy the hostel (through no fault of her own), her deliberate act that caused the actual loss of that accommodation could no longer taint her current homelessness, which would have occurred in any event.

Comment

This decision raises as many questions as it answers. In all the post-Din cases reviewed by the court the intervening event led to a fresh incidence of homelessness. That was not the case here. The intervening event was the birth (which occurred in December 2012). By that time the applicant was in interim accommodation (which she did not lose as a result). Assessments of intentionality necessarily involve a degree of hypothesis (“what would have happened if…”). How far can such hypothesising go? What if the hostel accommodation had been provided as part of a “move-on” scheme? Could the local authority have argued that but for her deliberate act Ms Haile would, by the time of her application, have moved on into permanent accommodation which she could have occupied with her child, so that her current homelessness was still a consequence of that act? The judgment does not seem to provide an answer to that not uncommon scenario.

What this means for local authorities

The court was at pains to stress that its judgment does not overrule Din, so in one sense the law remains as it was. However, this is undoubtedly a very important judgment. Further cases in the higher courts are inevitable as local authorities test decisions about “what might have been” but for the original act or omission that caused homelessness all that time ago. Local authorities should ensure that decisions relating to this kind of scenario are well reasoned and evidenced. Excessive speculation about what might have been (“had you not done X, then Y would have happened, and then Z…”) might mean that the authority cannot reasonably say that on the balance of probabilities the applicant would not be homeless in any event.

How Bevan Brittan can help

Bevan Brittan’s housing team regularly advises local authorities on their housing duties and functions. Our team has a wealth of experience advising and acting in homelessness reviews and appeals. We can also act as a ‘critical friend’, ensuring that homelessness strategies and policies comply with the relevant law and guidance, and can advise on making Section 184 and review decisions as robust as possible.