B2/2005/2565
Neutral Citation Number: [2006] EWCA Civ 1672
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
HIS HONOUR JUDGE VINCENT
 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 9th May 2006
 
B E F O R E:
LORD JUSTICE MUMMERY
LADY JUSTICE ARDEN
LORD JUSTICE HUGHES

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DANIEL LEE-LAWRENCE
CLAIMANT/APPELLANT
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PENWITH DISTRICT COUNCIL
DEFENDANT/RESPONDENT
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MS S HANNETT (instructed by Messrs Nalders, 38-39 Lemon Street, Truro, Cornwall, TR1 2NX) appeared on behalf of the Appellant

MR W BEGLAN ESQ (instructed by Penwith District Council, St Clare, Penzance, Cornwall, TR18 3QW appeared on behalf of the Respondent
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J U D G M E N T 
1.	LADY JUSTICE ARDEN:  This is a second appeal against a review decision made by Penwith District Council (“the local authority”).  The decision was that the appellant, Mr Daniel Lee-Lawrence was intentionally homeless.  As a result the local authority owed him only a limited housing duty.  The first appeal was to HHJ Vincent sitting in the Truro County Court.  His order dated 1 November 2005 dismissed Mr Lee-Lawrence’s appeal.  By order dated 24 March 2006 my Lord, Lord Justice Mummery gave permission to appeal on the basis that there was a question of law as to the meaning of the word “occupy”, and that bound up in that question was the question, what findings had been made by the local authority in this case?  

2.	The statutory framework is to be found in the Housing Act 1996 and I need refer only to sections 190, 191, 202 and 204.  Section 190(1) provides:

“(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance, but are also satisfied that he became homeless intentionally.
(2) If the authority are satisfied that the applicant has a priority need, they shall –
(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and 
(b) provide him with [or secure that he is provided with] advice and assistance in any attempts that he may make to secure that accommodation becomes available for his occupation.”

3.	I need not read more from that section.  Section 191(1) provides:

“(1) 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.
(2) For the purposes of sub-section (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.
(3) A person shall be treated as becoming homeless intentionally if –
(a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and
(b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part, 
and there is no other good reason why he is homeless.”

(4) has been repealed.  
4.	Section 202 provides in material part as follows:
(1)	An applicant has the right to request a review of –
 … 
(b) any decision of the local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 [and 196] (duties to persons found to be homeless or threatened with homelessness), 
...
(3)A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may … allow.
(4)On a request being duly made to them, the authority or authorities concerned shall review their decision.”

Section 204 provides in the material part as follows:

“(1) If an applicant who has requested a review under section 202 –
(a) is dissatisfied with the decision on the review, or 
(b) is not notified of the decision on the review within the time prescribed under section 203, 
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.”

5.	In this case, the local authority reached the conclusion that Mr Lee-Lawrence was intentionally homeless for the purpose of section 190(1) of the 1996 Act.  The material events were in summary as follows.  In March 2003, Mr Lee-Lawrence occupied 29 Crediton Avenue, Allerton, Bradford as a secure tenant.  On 15 June 2003 this property became uninhabitable as a result of an arson attack.  From that date to November 2003 Mr Lee-Lawrence lived with his ex-wife at 21 Eskdale Rise, Allerton, Bradford.  From 8 September 2003 to 12 October 2003 Mr Lee-Lawrence held a tenancy of a property known as 39 Blascomay Square in Colne, Lancashire.  This was terminated by notice on 12 October 2003.  On 11 November 2003 Mr Lee-Lawrence applied to the local authority for housing.  

6.	The housing association which owned the property at 39 Blascomay Square said that Mr Lee-Lawrence did not occupy that property.  Moreover, when Mr Lee-Lawrence applied for housing as a homeless person he stated in the application form that he had never occupied that property.  On the other hand, he represented that he had lived there when he applied for housing benefit.  We have not seen the form that he then executed, but I take that statement from the decision letter in this case.  We have seen two application forms completed by Mr Lee-Lawrence for housing in the local authority’s area, and in those he stated that he had lived at 39 Blascomay Square for one month.  The local authority did not accept that Mr Lee-Lawrence gave up 39 Blascomay Square because he had had a reconciliation with his wife and was moving back with her.  The question was a relatively technical one, namely, had Mr Lee-Lawrence ever occupied 39 Blascomay Square?  It is said that he could not have “ceased to occupy” that property for the purposes of section 190(1) unless, of course, he had first gone into occupation.  

7.	The review decision letter in this case is dated 13 April 2005.  In material part, it said this:

“3. Both during and before your time at 21 Eskdale Rise you had the right to the exclusive occupation of accommodation at 39 Blascomay Square through a tenancy agreement between yourself and a local housing association. An award of housing benefit was made for you to cover the rent. In the course of that claim, you would have represented to the Council that you were occupying the accommodation as your home. The Council was urged by Shelter, on your behalf to consider the High Court decision in R v Westminster CC, ex parte De Souza (1995) where the court overturned Westminster’s decision that an applicant should have stayed at a property that the applicant’s former husband had registered in her name as a business venture. She had no control nor dealing with the property. The facts are entirely different at 39 Blascomay Square, where a tenancy and keys would have been held by yourself. The tenancy would have excluded use and occupation of the property by anybody else than you. In view of the conflicting account given for the purposes of housing benefit about occupation as your home, the Council gives no weight to your claim that you never lived there. The Council is therefore minded to find that 39 Blascomay Square was available as reasonable accommodation for you to occupy.”
“4. The Council was not convinced by your evidence that you made a decision in good faith to leave 39 Blascomay Square in order to go back and live with your ex-wife as a newly reconciled family.”

8.	It is apparent from the passage which I have just quoted from the review decision letter that there were four steps in the reasoning of the local authority on the occupation issue.  First, Mr Lee-Lawrence had the right to occupy 39 Blascomay Square; secondly, Mr Lee-Lawrence obtained housing benefit and would have represented in the course of doing so that he was occupying the property as his home; thirdly, that the case of R v Westminster City Council ex parte De Souza was distinguishable because the applicant who was entitled to the property in that case had no control over it; and fourthly, the local authority did not accept Mr Lee-Lawrence’s claim that he did not live at 39 Blascomay Square.  

9.	This decision by Penwith City Council is very important for Mr Lee-Lawrence as it concerns his home.  The amount of the rent for 39 Blascomay Square during the period of his tenancy would no doubt have been a substantial financial matter for him, but Parliament has decided that, in determining entitlement to housing, the primary discretion must be that of the local authority.  I refer here to the classic statement of the law in the speech of Lord Brightman in R v Hillingdon London Borough Council ex parte Puhlhofer  [1986] 1 AC 484 at 518.  Lord Brightman said:

“The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy.  But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act, save in the exceptional case.  The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in Wednesbury sense-unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

The other members of the house agreed with the speech of Lord Brightman.  
10.	In this case, the judge directed himself as follows:

“10. There are therefore two essential points that require scrutiny.  The statutory framework means that for the respondent Authority’s stance on Blascomay Square to be sustainable they must have reached a view that he had actually occupied that property and that view must not be perverse, having regard to the evidence on which it was based.”

I consider that that is an appropriate direction for the judge to have given to himself. 

11.	The judge then went on to say in paragraph 11:

“I have been referred to previous cases in which the issue of whether any element of physical occupation is required is explored.  I do not propose to go through those authorities in detail within this judgment, but say simply this, that the issue of whether someone is in occupation of a property seems to me to be a matter of fact, intention and degree.  I do not accept that any element of furnishing the property or sleeping there is a necessary component, although the absence of those elements is, of course, highly relevant.”

12.	The judge then went on to set out his conclusions on the question whether the authority had acted perversely, in paragraphs 13 to 18 of his judgment:

“13. Here the respondent Authority had material on which they reached the view that Mr Lee-Lawrence was in occupation of Blascomay Square.  I do not go through all of that, but it included his taking of the tenancy, his taking possession of the keys to the property, the subject of the tenancy, his meeting with the housing officer at the property to return the keys, his representation that he would vacate the property on a specific date, his application for Housing Benefit in relation to the rental on the property which involved a representation that he was occupation of it, and his references to that property in later formal documents as having been a previous address.
14. On the other side of the coin, the respondent Authority had his assertion that he never occupied nor ever intended to do so.  In my view, the incidence of occupation on which the Authority relied were more than adequate to sustain a conclusion that he was in actual occupation of that property.
15. Moreover, the Authority had some cause to doubt his credibility.  First, they knew that he had made what amounted to a misrepresentation to the Housing Benefit Authority if, indeed, he was now telling the truth about his non-occupation of Blascomay Square.  In other words, he could not have it both ways.  Secondly, they knew that he had produced a letter from a holiday site operator which that operator maintains to be a forgery.  It seems to me that they were entitled to take into account those question marks over his credibility in looking at the issue of actual occupation and in balancing the evidence base that they had.
16. I am, therefore, quite unable to characterise the decision of the respondent Authority on the issue of occupation of Blascomay Square as perverse.
17. The issue about Eskdale Rise is in a sense the opposite side of the same coin.  Standing against the appellant’s assertion that he was in settled occupation of that property were issues of credit, which I have already referred to, and his applications to be rehoused without Paula Algie whilst in the process, as he would have it, of reconciliation.  Moreover, he made scant reference to Eskdale Rise as any sort of residential address for himself when dealing either the outside world.
18. On the other hand, the Authority had, and took account of, letters of support from Miss Algie and the appellant’s daughter.”

13.	Ms Sarah Hannett for the appellant makes the following submissions.  She submits that the local authority did not make any finding as to whether Mr Lee-Lawrence occupied 39 Blascomay Square.  She submits that there would need to be a positive and clear finding on this point.  She accepts that, as the judge said, occupation was a question of fact and degree, but she submits that there has to be physical possession or user and that merely holding the keys to a property, or giving notice to quit, or attending the premises in accordance with a contractual obligation to give back possession, is not enough to constitute occupation.  

14.	Miss Hannett took us to a number of authorities.  She relied most particularly on R v Westminster City Council ex parte De Souza.  This is a decision of Popplewell J.  Here the applicant for housing was a woman who claimed that she was homeless in 1992.  She had lived with her husband since 1975 and in 1984 he had bought a property in their joint names, together with a friend, as a business venture.  The applicant and her husband had never lived there.  Popplewell J held that the applicant could not have ceased to occupy the property, as required by the statutory predecessor of section 190 of the 1996 Act, because she had never lived there.  That case is to be contrasted with R v Westminster City Council ex parte Khan [1991] 23 HLR 230.  In Khan a woman obtained entry clearance, having represented that she and her husband would live at a property in north Nottingham which shortly thereafter they sold.  The parties then returned to their country of origin.  They returned shortly thereafter, and they then claimed that they were homeless.  Nolan J held at page 233 to 234:

“It seems to me that where you have a couple who have a house at their disposal and who represent to the immigration authorities that they propose to use it as their home, then it would be absurd to treat them otherwise than as occupiers from the purposes of the Housing Act.  The Act is designed for the benefit of those who become homeless involuntarily, not for the benefit of those who choose to dispose of accommodation which is available for their use.”

As the review letter in this case observed, one of the differences between the De Souza case and the Khan case is that in the former case, the wife was not in a position to have any control over the property.  

15.	Miss Hannett also relies on two further cases, namely R v City of Westminster ex parte Chambers [1982] 6 HLR 24, where McCullough J held that a person could not cease to occupy a property if he had never taken possession of it or occupied it in the first place, and R v Wandsworth Borough Council ex parte Oteng.  The latter is a decision of this court on section 60(1) of the Housing Act 1985.  In the Oteng case, this court held that a person could not be said to cease to occupy the property by reason of a transaction which occurred subsequent to her ceasing to be in occupation.  In that case, the applicant had owned a property jointly with two sisters and her mother.  She had left the property and, some two and a half years later, she disposed of her interest in the property to her mother.  She did not cease to occupy the property by virtue of that disposition but by virtue of her earlier act.

16.	In the present case, Mr Lee-Lawrence had the right to live at 39 Blascomay Square during the period of his tenancy.  He was the sole tenant, and he had obviously got the keys to the property.  There is no direct evidence that he ever slept there, but there is some evidence that he used it in the sense that he had a meeting there with the housing officer, as the judge found, in accordance with the contractual terms to hand the keys back.  He also used the property in the sense that he made applications for housing benefit, and to go on to the housing register of the local authority, on the strength of 39 Blascomay Square being his home.  It is the appellant’s case that the question whether a person occupies premises is a question of fact and degree.  I would add that the mere right to possession is not enough, but it is certainly a relevant consideration.  In addition, the bare uncontroversial facts such as holding the keys and having a meeting there, and making representations as to living there, could in my judgment also constitute circumstantial evidence from which a decision maker could properly infer that, despite the appellant’s denials to the contrary, he had occupied the premises in some fuller sense. 

17.	 The material part of the decision letter for this purpose is the final two sentences of paragraph 3, which states:

“In view of the conflicting account given for the purposes of housing benefit about occupation as your home, the council gives no weight to your claim that you never lived there.  The council is therefore minded to find that 39 Blascomay Square was available as reasonable accommodation for you to occupy.”

In my judgment, this part of the decision letter implies that the local authority found that Mr Lee-Lawrence lived at 39 Blascomay Square at least occasionally or from time to time.  I agree with the judge that the local authority was entitled to make this finding.  There was, as the judge explained, material for this finding.  I do not consider that the local authority’s conclusion is vulnerable to attack as perverse, or that it can be said that it was so unreasonable that no reasonable decision maker could reach it.  Its decision was, in my judgment, within the role of decision making on the facts that properly belongs to the local authority in accordance with the law as interpreted by Lord Brightman in the Puhlhofer case.  The local authority’s conclusion that Mr Lee-Lawrence had lived at 39 Blascomy square for some period of time during the tenancy meant that the statutory requirement for a cessation of occupation was fulfilled when the tenancy of that property terminated.  Cessation of occupation was properly attributed to that termination.

18.	For these reasons I would dismiss this appeal.

19.	LORD JUSTICE HUGHES:  I agree.

20.	LORD JUSTICE MUMMERY:  I agree.  I would add only this.  I granted permission to appeal to Mr Lee-Lawrence on a renewed application on 24 March 2006.  I did so on the basis that issues arose on the appeal on the interpretation of section 191(1) of the Housing Act and its application to the facts of this case.  Now that the matter has been fully argued before us, I am satisfied by the reasons given by my Lady, Lady Justice Arden, that HHJ Vincent was correct in law in dismissing Mr Lee-Lawrence’s appeal from the review decision of the Penwith District Council in its letter of 13 April 2005.  I would therefore also dismiss this appeal.

Order: Appeal dismissed.