Intentional homelessness: unaware of a relevant fact

Wednesday 2 August 2017

Jamila Afonso da Trindade v Hackney London Borough Council [2017] EWCA CA Civ 942, 6 July 2017 The appellant, T, was from the island of Sao Tomé off the west coast of central Africa. In February 2013, upon her sister’s suggestion, she gave up her tenancy and came to the UK in order to access better medical treatment for her disabled daughter. Upon arrival in the UK, they stayed with T’s sister in a property which she rented in North London.

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Jamila Afonso da Trindade v Hackney London Borough Council [2017] EWCA Civ 942, 6 July 2017

The appellant, T, was from the island of Sao Tomé off the west coast of central Africa. In February 2013, upon her sister’s suggestion, she gave up her tenancy and came to the UK in order to access better medical treatment for her disabled daughter. Upon arrival in the UK, they stayed with T’s sister in a property which she rented in North London.

In August 2013, T’s sister was served with a notice by her landlord who wished to take possession of the property in order to refurbish it. The tenancy was terminated in due course and T and her daughter applied to the respondent, the London Borough of Hackney, for homelessness assistance. Hackney determined that T had become homeless intentionally having given up her accommodation on Sao Tomé.

On review, T contended that she had not become homeless intentionally because she had acted in good faith and had been unaware of relevant facts. The reviewing officer rejected these contentions finding that at the point T decided to leave:

"…she did so only in the knowledge that she could stay with her sister upon her arrival. There was no agreement as to the length of time involved… There is nothing to suggest that your client had an expectation that when she left… for London she would have permanent housing in the UK."

In ‘shutting her eyes to the obvious’ she had not acted in good faith. Her appreciation of her prospects of future housing in London was based on mere aspiration as opposed to genuine investigation and so did not amount to a lack of awareness of a relevant fact. While her lack of knowledge of the legal framework relating to homelessness did not constitute a lack of awareness of a relevant fact, rather it was a lack of awareness of the legal consequences of a relevant fact.

On appeal to the county court, T sought to argue that she had been unaware of a relevant fact in that at the time of leaving home to come to London, she did not know that her sister’s accommodation would be terminated. The judge rejected this line of argument, applying the guidance in Najim v London Borough of Enfield [2015] EWCA Civ 319, [2015] HLR 19 that a mistaken belief of an applicant does not have to be reasonable, providing it is genuine, but the belief has to be a belief in an existing fact, not a misplaced belief in the likelihood of the happening or otherwise of a future event. In view of this, it was not necessary to decide whether T had acted in good faith.

T brought a second appeal to the Court of Appeal arguing that Najim had been decided per incuriam and that she had been unaware of a relevant fact, and that she had acted in good faith since she had come to the UK in the hope of seeking improved medical treatment for her daughter.

The Court of Appeal rejected her appeal. Najim had not been decided per incuriam and identified the correct approach to the phrase, ‘unaware of any relevant fact’ in section 191(2):

"…an applicant who seeks to bring herself within section 191(2) where the future has not worked out as expected by her, has to show that at the time of her action or omission to act referred to in section 191(1), she had an active belief that a specific state of affairs would arise or continue in the future based on a genuine investigation about those prospects, and not on mere aspiration. Her belief about her current prospects regarding the future can then properly be regarded as belief about a current relevant fact (the apparent good prospects that the future will work out as she expects), such that if that belief can be seen to be unjustified by what a fully informed appreciation of her prospects at the time would have revealed, her mistake will qualify as unawareness of a relevant fact for the purposes of section 191(2)."

Applying these principles, the reviewing officer was correct to find that T had not been unaware of a relevant fact. As such the issue of whether any lack of awareness was in good faith did not arise. But in any event, the reviewing officer had approached this issue correctly. Good faith in this context ‘does not turn on whether the applicant acted (or omitted to act) with a laudable or understandable motive’. The reviewing officer’s finding that she had shut her eyes to the obvious was sufficient to justify his adverse finding on this issue.

The full judgment is available: Jamila Afonso da Trindade v Hackney London Borough Council [2017] EWCA Civ 942, 6 July 2017

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