Court of Appeal issues ruling on use of ‘move on’ accommodation

The Court of Appeal has dismissed an appeal brought by a young woman against a council’s decision that she was ‘intentionally homeless’.

In Hodge v Folkestone and Hythe District Council [2023] EWCA Civ 896, Lady Justice Elisabeth Laing concluded that the council was entitled to decide that the room the woman, ‘A’, had been occupying had been 'settled accommodation' and that A had made a “deliberate decision to leave it”.

A was appealing against a decision of HHJ Parker to dismiss her appeal from a decision of Folkestone and Hythe District Council.

On 17 August 2021, the council decided that A was ‘intentionally homeless’ for the purposes of section 191(1) of the Housing Act 1996. Following a review of the decision dated 23 September 2021, the council came to the same conclusion, after responding to representations from Citizen’s Advice.

A had left home when she was 12. In March 2015, she moved to young person's accommodation provided by Porchlight. In August 2015, she moved into a room in a hostel ‘the Room’, which was also provided by Porchlight, occupied under a written licence.

Lady Justice Elisabeth Laing noted that as summarised by HHJ Parker, “page 1 of the licence described the aims of the project run by Porchlight. They were to provide 'high quality, temporary supported accommodation for single homeless', to assess their needs so that they could get appropriate support services, and to plan to help them to move into longer-term accommodation.”

She added: “Clause 2 of the licence added that Porchlight provides temporary accommodation while residents look for more permanent accommodation. […] Clause 1 of the licence provided that it was an excluded licence under section 1 of the Protection from Eviction Act 1977.”

In 2016, A left the room ‘of her own accord’. On 24 May 2021, she applied to the council for accommodation as a homeless person.

Following the council’s original decision that A was ‘intentionally homeless’, Citizens' Advice Shepway responded to the original Decision on A's behalf with representations dated 19 August 2021.

She said: “The representations argued that the Room was not A's last 'settled accommodation', relying on paragraphs 9.6 and 9.15 of the Code.

“The representations pointed out that the Original Decision was wrong in suggesting that A had a tenancy of the Room. She only had a licence, and she had had 'minimal security of tenure'.”

Responding to the representations, the council decided to uphold the conclusion of the original deciding officer that A was intentionally homeless. The council noted that A had decided ‘voluntarily to vacate settled accommodation, and reside in an unsettled accommodation’.

Lady Justice Elisabeth Laing said that A's solicitors had asked for the review on three grounds:

“i. They considered that her last settled accommodation had been in the Room ([counsel for the local authority] submitted, plausibly, and I accept his submission, that a 'not' was missing from this part of the Decision).

ii. She had a mental health condition which had not been taken into account.

iii. The Council should have contacted A's GP.”

The council drew A's attention to the decision in Awua on the issue of 'last settled accommodation'.

The Decision, set out by the Court of Appeal judge, said:

“In this case it was established that in line with [Puhlhofer] that the concept of settled* accommodation was one for the authority alone to decide and that the concept of settled* accommodation is defined as:

Means a place which can fairly be described as accommodation and which it would be reasonable having regard to the general housing conditions in the local authority district for the person to continue to occupy, there is no additional requirement that it should be settled or permanent"

The Council then listed, in 17 bullet points, the information which had been taken into account in reaching the Decision. “The Decision considered section 149 of the Equality Act 2010. The conclusion was that the Original Decision […] was correct. A was notified of her right of appeal to the County Court”, said Lady Justice Elisabeth Laing.

A’s appeal was heard by HHJ Parker. On his judgment, the Court of Appeal judge said: “I will only refer to the Judge's analysis of ground 2, which is the only ground which is relevant to this appeal.

“Ground 2 was that the Council erred in law in concluding that the Room was 'accommodation' for the purposes of section 191(1) of the 1996 Act, and that the Council erred in law in finding that it was 'settled accommodation'.”

She noted that HHJ Parker considered, first, whether the Room was 'accommodation' at all.

She said: “He summarised the authorities to which A had referred in support of her argument that the Room was not accommodation. In particular, interim accommodation provided under section 181(1) of the 1996 Act was not 'accommodation' for the purpose of deciding whether a person is unintentionally homeless for the purpose of section 175(1). Having considered those authorities, he decided that the Room was 'accommodation' for the purposes of section 191(1).”

She added: “He then considered, and rejected, A's further argument that even if the Room was 'accommodation', A could not be intentionally homeless unless it was settled accommodation.

“The Judge held that there was no binding authority to that effect. A had made a further submission, after the hearing, relying on paragraph 9.13 of the Code. The Judge held that the Code could not contradict provisions of primary legislation, and rejected that submission.”

Turning to the present appeal, Lady Justice Elisabeth Laing noted that Arnold LJ gave A permission to appeal on two issues:

• Whether the Room was 'accommodation' for the purposes of section 191(1) of the 1996 Act and;
• Whether the Room had to be 'settled accommodation' or not.

Counsel for the appellant submitted that the judge was wrong to hold that there is a difference between non-secure temporary accommodation provided as a result of an application by a homeless person and accommodation which is not so provided.

“Whether the place is 'accommodation' should not depend on whether an application has been made. There is no difference in substance between accommodation in a hostel providing specialist support for homeless young people and a refuge providing support for a woman fleeing domestic violence.

“Neither is secure; each is temporary and lasts until permanent accommodation is found. To hold otherwise would be contrary to public policy, as it would lead to the blocking of temporary hostels.”

Counsel for the appllant's second submission was that even if the Room was 'accommodation', the council could not decide that A was homeless unless it also decided that the Room was settled accommodation.

Counsel for Folkestone and Hythe conceded that the Decision was 'not a model of clarity', noting that “there were typographical errors which made some of it difficult to understand. For example, there was a missing 'not' and there were two incorrect insertions of the word 'settled'.

“Nevertheless, when read sensibly, it was a decision which the Council were entitled to make on the facts.”

He also argued that If A's submissions were right, there would be “two unfortunate consequences, as a matter of policy.

“First, an applicant with a priority need could walk out of temporary accommodation such as the Property, present herself as homeless, and, in effect, jump the queue. Second, LHAs would not be able to use temporary supported accommodation to discharge their duties under Part VII”.

Discussing the case, Lady Justice Elisabeth Laing said: “Contrary to Mr Colville's [counsel for the appellant's] submissions, Ali does not decide that a women's refugee (or a similar habitation) is not 'accommodation'.

“Finally, authority which binds this court (Awua) decides that in order to qualify as accommodation for the purposes of Part VII, there is no requirement that accommodation be 'settled'. The concept of 'settled' accommodation is a gloss on the statutory words, and has been invented by the courts as a tool to help them to analyse whether there is a causal connection between a loss of past accommodation and the applicant's current condition of homelessness.

“‘What persists until the causal link is broken is the intentionality, not the homelessness' as Lord Hoffmann put it in Awua”.

She noted that it is necessary to consider how the council approached the relevant questions in the Decision.

On this, she said: “Mr Hutchings [counsel for Folkestone and Hythe] was right to concede that the Decision was not perfect. […] Nevertheless, the Decision is not a statute and was not written by a lawyer.”

“Despite the superficial imperfections in the drafting of the Decision, I consider that when the text of the Decision is amended as Mr Hutchings suggested it should be, it is clear that its author correctly understood the legal position, as explained in Puhlhofer, Awua and Ali.”

Lady Justice Elisabeth Laing found that the author of the Decision “correctly understood, and applied, three propositions”:

1. The question whether the Room was 'accommodation' was for the Council to decide, and the fact that the Room was occupied pursuant to a licence was not decisive.
2. The concept of 'settled accommodation', relied on in the representations, was only relevant as an analytical tool, in effect, if it helped the LHA on the issue of causation.
3. Whether it was reasonable for A to continue to occupy the Room, rather than leaving it, was a question for the Council to decide.

She concluded that the council were entitled to decide that the Room was 'accommodation'.

She said: “The Council were also entitled to decide, in response to the representations, that the Room had been 'settled accommodation' and that A had made a deliberate decision to leave it. If she had stayed, she would have got an offer of secure accommodation. The Council were, further, entitled to find, as they did, that it would have been reasonable for A 'to continue to occupy [the Room] rather than giving it up'.”

She finally added: “I should make clear that I also accept Mr Hutchings's submission that, in this case, it was only necessary for the Council to answer two questions. They were whether the Room was 'accommodation', and whether it would have been reasonable for A to continue to occupy it. The Council addressed the question whether or not the Room was 'settled' accommodation because that question was raised in the Representations, but, on the facts of this case, it was unnecessary for the Council to examine that question.”

The Court of Appeal judge dismissed the appeal, noting that the council were “entitled to decide that A was intentionally homeless”.

Lord Justice Arnold and Sir Andrew McFarlane agreed.

Lottie Winson