Act or omission must have caused homelessness

When looking at causation the local authority must ask whether the applicant's homelessness at the time of the authority's decision (or review decision if applicable) was caused by that deliberate act or omission, or whether a later intervening event constituting an involuntary cause of homelessness meant that s/he would have become homeless anyway by the time of the decision on her/his application.

In an English case considered by the Supreme Court, the applicant had voluntarily left a single persons hostel, however she had given birth to a child by the time of the authority's decision into her homelessness application, which meant that she would undeniably have been evicted from the hostel. As such the applicant should have been found not intentionally homeless. [1]

See the page Deliberate act or omission for more information on what constitutes a deliberate act.

Where there is more than one possible cause of homelessness, it is for the local authority to decide whether at least one of them was a deliberate act or omission on the part of the applicant. [2]

In one case [3] a woman left her accommodation because she was fleeing harassment and violence at the same time proceedings were being taken against her for rent arrears. The council found her intentionally homeless due to the arrears. This was later deemed unlawful and it was held that in considering causation for the purposes of intentional homelessness, the council had to look at not only the background of arrears and default but at the true reason which caused the applicant to cease to occupy the accommodation (which was harassment and violence).

The Code of Guidance states '...if a person gave up permanent accommodation, the circumstances which led the person to leave the permanent accommodation will determine whether homelessness was intentional'. [4]

This highlights the issue of definitions of permanent and temporary accommodation. The Code contrasts someone giving up permanent accommodation for an extended holiday believing that they could later apply as homeless with someone who moves to get work, expecting to get permanent accommodation, but is later made redundant. In the first case, the Code suggests a finding of intentionality could be made, but it might not be in the second case. [5]

English case law uses the term ‘settled’ when assessing whether the accommodation can be considered to be permanent and there have been a number of cases on the issue. [6] Whether accommodation is settled is a question of 'fact and degree'. Factors that advisers may want to consider include the length of occupation, the security of tenure, the intentions of the parties, and how 'precarious' the occupation is (ie whether there is a constant threat of eviction).

Intention

In one case, the court held that the issue was not whether the parties had initially intended a temporary or permanent arrangement but whether, as the months and years passed, what started out as 'unsettled' developed 'settled' characteristics. [7]

Length of time in 'precarious' accommodation

There is no particular period of time after which temporary (or unsettled) accommodation will become settled. The applicant needs to establish s/he had a period of occupation, under either a licence or a tenancy, which has at the outset or during its term a real prospect of continuation for a significant or indefinite period of time. The Court of Appeal has found that settled accommodation was not established where an applicant:

• remained as a licensee in temporary accommodation because an administrative error by the local authority meant it did not take any steps to evict him for over two years [8]

• lived as a licensee (paying rent) in an employer’s home for two years, when at all times it was understood the applicant would leave when the employer’s son returned from university and that he would vacate the room for the times when the son came home during the holidays [9]

Temporary homeless accommodation

It should be noted that a homeless person who leaves temporary accommodation provided by the local authority should not be considered to have become intentionally homeless. [10]

The chain of causation can only be broken by a material change in the circumstances of the applicant, or the occupation of settled accommodation. [11]

The consequences of failing to break the chain of causation can be seen in one case [12] where the applicant and her husband split up after staying with relatives and friends. It was claimed by the couple that the homelessness was a result of the marital breakdown. The court however accepted the assessment of the local authority that the homelessness stemmed from the whole family giving up their house, on which they had rent arrears, in another local authority some months before.

The chain of causation will not always be broken by an intentionally homeless applicant subsequently finding and being evicted from another property. In an English case a woman who had previously been deemed intentionally homeless took up a new tenancy in the private rented sector. The flat was overcrowded and too expensive and she was eventually evicted. The authority claimed that the woman had no reason to believe she could afford the property and had said in an interview that she had been advised to rent private accommodation for one or two years and then reapply as homeless. The court held that the council was allowed to take this into account when assessing the woman's latest application. This shows the court's willingness to look at the intention of the applicant as well as the objective facts of the case. [13]

In another Court of Appeal decision, the Court examined the chain of causation where there were numerous factors contributing to homelessness. [14] A former council tenant exercised the right to buy despite having a history of rent arrears and other debt. When she later fell into arrears after her husband lost his job, the Court held that the chain of causation had not been broken by the husband being unable to work. The applicant's financial history meant that it was inevitable that she would fall into mortgage arrears. It was appropriate for the council to consider all the facts, including the situation prior to the property being purchased. The couple should never have bought the property.

The 'cause and effect' argument can be highlighted in the context of the loss of tied accommodation that inevitably brings into question how the applicant lost their job.

The Code of Guidance notes that someone who becomes homeless because tied accommodation is lost should not normally be deemed to be intentionally homeless. Local authorities should not expect someone to remain in a job if it is unreasonable for them to do this only to keep accommodation or if they wanted to claim constructive dismissal. [15]

In one instance a woman in tied accommodation was dismissed for misconduct, as she had lied to her employers. The judge stated that the sacking was lawful, and that as the council was satisfied that she must have known the consequences of her action would be the loss of her accommodation, she had made herself intentionally homeless. [16]

There has been a case where an employee was given the option of being sacked, or of resigning with a reference. He took the latter option, lost his accommodation and was found intentionally homeless. The court decided the authority should have asked itself whether it was his fault that he was to be dismissed. Since this point was in dispute, the applicant should have been given the benefit of the doubt and should not have been considered intentionally homeless. [17]