Success for Kerry Bretherton in the Supreme Court

In Haile v London Borough of Waltham Forest [2015] UKSC 34 the Supreme Court considered two primary issues which are fundamental to the concept of being homeless intentionally: the first related to the time when intentional homelessness was to be considered; the second related to the question of whether events could break the chain of causation. Lord Reed, with whom Lord Neuberger, Lady Hale and Lord Clarke agreed, gave the leading judgment in this case concerning intentional homelessness. Lord Carnwath dissented.

The underlying facts are that Ms Haile voluntarily left accommodation, in a hostel, which was considered suitable for her at the time she left but which did not allow occupation by individuals with children. She was pregnant when she left and gave birth prior to the decision.

Ms Haile contended she was not intentionally homeless as she would have been homeless, in any event, by the time her application was considered or by the time of the review decision because she would not have been permitted to occupy the accommodation after the birth of her baby. She argued that the operative cause of the homelessness was the fact that she could not occupy the hostel with her baby and so she was not intentionally homeless. Her arguments were dismissed by the review officer, in the County Court and in the Court of Appeal.

The Supreme Court accepted the arguments put forward by Ms Bretherton and Ms Tweedy that the construction of the Housing Act 1996 involved consideration of the actual cause of homelessness at the date of the decision or review. At Paragraph 23 Lord Reed said “As counsel for the appellant submitted, the homelessness with which the words “became homeless intentionally” are concerned must be the homelessness which the authority have found to exist: “is homeless” and “became homeless” must refer to the same current state of being homeless. It is therefore in relation to the current state of being homeless that the question has to be answered, did the applicant become homeless intentionally?”

The Supreme Court did not find it necessary to distinguish or overrule of Din v Wandsworth London Borough Council [1983] but rather considered that the decision of the majority of the House of Lords in Din could be interpreted in a way which meant that it was the operative cause of the homelessness which was relevant. This was described by Lord Neuberger as “distinguishing it on a fairly fine basis” (paragraph 69). The decision in Haile confirms that the foundations for the development of the law on intentional homelessness, as set out in Din are sound. However, the Supreme Court accepted that the facts of Din may not have given rise to the same decision today.

Most significantly, the Supreme Court have ensured that decision makers and review officers are required to consider the actual operative cause of homelessness at the time of the decision and review thus ensuring that the focus is upon relevant conduct.

Further, the Supreme Court have confirmed that obtaining settled accommodation is not the only method of breaking the chain of causation and thus endorsed the Court of Appeal decision in R v Harrow London Borough Council, Ex p Fahia (the appeal to the House of Lords in that case having proceeded without that issue being considered).

Ms Bretherton was instructed by Hackney Community Law Centre. She commented “the clarity which has been achieved by Lord Reed’s analysis of Din is welcomed by all who practice in this area. The decision will, inevitably impact on all cases of intentional homelessness and lead to a duty being owed to many who would have otherwise been homeless and may require further applications by those who have been found to be intentionally homeless.”