Court of Appeal rules for council in case on eviction for rent arrears against backdrop of domestic violence

The Court of Appeal has dismissed an appeal over whether it was not reasonable for the appellant to stay in a property from which she was evicted for rent arrears given that there was evidence she had been subjected to domestic violence.

In LB v London Borough of Tower Hamlets [2020] EWCA Civ 439 the appellant, LB, appealed the order of 4 March 2019 of HHJ Gerald, sitting in the County Court at Central London.

HHJ Gerald had dismissed LB's appeal from the decision of 7 August 2018 of the review officer of the London Borough of Tower Hamlets, who had affirmed the decision of the council's housing officer.

The housing officer had refused the appellant's application for assistance under Part VII of the Housing Act 1996 on the ground that she had rendered herself homeless intentionally.

In the Court of Appeal Lord Justice McCombe said the background to the case held two essential features:

1. the appellant was in arrears with her rent at the privately rented property from which she was evicted, for that reason, on 3 November 2016; and
2. there was evidence that she had been subjected to domestic violence/harassment from her former husband.

The question for the judge in the County Court was whether the review officer had erred in law in the decision that she had taken, the test being in substance that applied by the High Court on judicial review: see Begum (Runa) v Tower Hamlets LBC [2003] UKHL 5 at [7] per Lord Bingham of Cornhill.

In LB Lord Justice McCombe said the relevant provisions in S.191(1) and S.177(1) and (1A) of the 1996 Act were relatively easy to apply in cases where a person leaves property intentionally, when there is no other reason why he or she should vacate, for the single purpose of avoiding apprehended violence. In such cases, there is intentional homelessness, but it is not reasonable for him or her to continue occupation, he said.

“On the other hand, improper non-payment of rent, leading to eviction, is treated as intentional homelessness, but it becomes more difficult to assess the reasonableness or otherwise of hypothetical continued occupation in such a case where there is also some evidence of domestic violence before/after eviction and before the decisions on housing assistance are taken by the housing authority and/or by an RO.”

Lord Justice McCombe said the question in the case of LB was whether, with the background of rent arrears and the appellant's eviction from her former accommodation for that reason, it would not have been reasonable for her to continue to occupy that property because it was probable that occupation would lead/have led to domestic violence or other violence against her and/or her children.

In this case there had been violence when the marriage broke down in 2015 and a first non-molestation order had then been made. There was no evidence of violence between that date and the eviction.

LB first approached Tower Hamlets' housing department in April 2016, during the currency of the first non-molestation order, saying that she was in arrears owing to a change in her housing benefit. She received notice from the landlord requiring her to leave. A possession order took effect from 2 September 2016.

In a note on the council's housing file dated 3 November 2016 it was stated that LB had mentioned the first non-molestation order, but with a comment that she was "...not in fear now ....D[omestic] V[iolence] was in Tower Hamlets, however not in fear....".

A second non-molestation order was obtained in January 2017, after evidence was given to the effect that the former husband had continued to threaten and abuse LB and had tried to see the children at school, contrary to their wishes and causing them distress. A third non-molestation order was made in July 2017, in essentially similar terms to the previous one.

In December 2017 the council made its initial decision on LB's housing application, deciding that she was intentionally homeless. Any question of domestic violence centred upon whether this had rendered her less able to manage her affairs, including payment of her rent, rather than any question of whether violence made it unreasonable for her to have continued in occupation of the old property.

The review officer subsequently found that it would have been reasonable for LB to continue to occupy the old property in all the circumstances.

The appellant appealed to the County Court under s.204 of the Housing Act 1996 but HHJ Gerald affirmed the review officer's decision and dismissed the appeal.

The appeal to the Court of Appeal was brought on the following ground(s):

"The learned judge was wrong to reject the Appellant's ground of appeal that the Respondent misdirected itself in law by assessing only the probability of domestic violence occurring at the Appellant's former home had she continued to live there. The learned Judge's dismissal of the said ground of appeal was based on a further misdirection, namely that the test in s.177(1) Housing Act 1996 is whether the risk of domestic violence was probable on the day that the applicant left her former home or was in any event plainly wrong."

Lord Justice McCombe said that "as a matter of language of the provisions, it is clear that s.191 is directed to the time when the relevant person does or fails to do something with the result that he or she ceases to occupy accommodation and then to whether it would have been reasonable for him or her then to continue in occupation. Naturally, the section directs the reader to the time when the act is done or is not done which results in the applicant leaving the premises. One is answering the same question when applying the deeming provision in s.177.

"In applying this section, the applicant will be held to have been reasonable in ceasing to occupy if, when he or she does or fails to do the act, continued occupation would probably lead to domestic or other violence."

The judge said that while the question of whether it was reasonable for a person to continue to occupy premises which he or she had ceased to occupy deliberately was to be assessed at or about the time of the act in question, the assessment needed to be informed by all relevant matters, including events that might occur up to the date of the authority's review decision.

“In the present case, therefore, in deciding whether or not it was reasonable for this Appellant to have continued to occupy her old accommodation, instead of ceasing to do so deliberately by not paying the rent (and ignoring the non-payment of rent for this purpose), the authority had to consider whether it was probable that this would have led to violence. It could not ignore evidence from events up to the time of review, informing it as to whether violence would have been probable or not," Lord Justice McCombe said.

Counsel for LB argued that the review officer simply did not give enough attention to the post-eviction events. It was argued that the review officer assessed the question of reasonableness of continued occupation solely by reference to the likelihood of violence at the old property and ignoring ‘off-site’ events, such as distress caused to the children at school.

Lord Justice McCombe said that giving the review decision a fair reading, he considered that the review officer was “endeavouring to express her assessment of the risk to the Appellant as a result of continuing to live at the old property. She was not confining herself solely to incidents that might occur physically at the old property. Any such impression is countered by the extent of her enquiries with the police and the contents of the ‘minded to’ letter of 19 July 2018.

“She was also having proper regard to the nature of the events which were said to have occurred and the absence of evidence of further significant breaches of the NM Orders pursued by the Appellant. That is not to ignore the complaints actually made about the two attendances by C [the former husband] at the school.”

Lord Justice McCombe added that he did not find that the review assessed only the probability of violence at the old property had the appellant continued to live there, as was submitted in the grounds of appeal. [judge’s emphasis]

“Nor do I think that the judge erred in any material way, on the facts of this case, as to the date at which reasonableness of continued occupation had to be tested. However, it is the [review officer's] decision on this latter question that matters and, in the light of the authorities considered above, I do not find that the [review officer] erred in this respect either. Looked at overall, I consider that the [review officer] reached a decision which she was entitled to make on all the relevant material and on the review case as advanced by the Appellant.”

Lord Justice McCombe, with whom Lord Justice Floyd and Lord Justice Coulson agreed, therefore dismissed LB’s appeal.