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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lomotey v London Borough Of Enfield [2004] EWCA Civ 627 (07 May 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/627.html Cite as: [2004] EWCA Civ 627 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HER HONOUR JUDGE BEVINGTON)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE LONGMORE
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NAOMI LOMOTEY | Claimant/Respondent | |
-v- | ||
LONDON BOROUGH OF ENFIELD | Defendant/Appellant |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR S CARROTT (instructed by Messrs Spicer & Associates, Edmonton N9 0TZ) appeared on behalf of the Respondent
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Crown Copyright ©
"You and your brother therefore decided that if you ceased to be a 'homeowner' and he then evicted you, then the council would have to accommodate you as a homeless person. On 24 October 2002 your brother issued you with a notice seeking possession. This was only one week after he had been notified by Abbey National Plc that they had accepted your and your brother's request of 11 October 2002 that he was to be the sole mortgagor and that your legal interest in the property should cease.
Given that you brother was notified on 17 October 2002 of this transfer with your approval and that he issued you with a notice seeking possession only a week later on 24 October 2002 also with your approval, it is reasonable to conclude that this was a collusive arrangement and that you have made yourself intentionally homeless. This is because your actions were deliberate and intended to cause you to become homeless when otherwise the accommodation was available for your occupation."
"Miss Lomotey made it clear that she has been unable to live with her partner David Whyte for want of accommodation. Mr Whyte is the father of her children (save for Jazz who is fostered) and of the unborn child. He does not have accommodation sufficient to accommodate his family even though it is reasonable for Miss Lomotey as his longstanding partner and for his children to be living together. Miss Lomotey made it clear that her brother even objected to him visiting the property. On occasions when he did visit violent arguments ensued, which Miss Lomotey had to intervene in order to prevent a physical confrontation. We would specifically refer you to the case of Islam (1983) 1 AC 688, which now has even greater force given the provisions of Article 8 of the European Convention on Human Rights and our client's right to family life.
...
We refute entirely the suggestion that Miss Lomotey invited her brother to serve notice on her. Our client has never stated this. On the day that she was handed the notice, it was handed to her in a sealed envelope by her brother. He then ran out of the room. Miss Lomotey's mother was present and can attest to the fact that our client was so shocked by this that she burst into tears.
...
We consider that since the council has misdirected itself in law and on the facts and also because credibility is in issue our client should have the opportunity to make oral representations at the review panel hearing."
"Prior to your homeless application your partner, Mr David Whyte, made his own homeless application. Neither of you included the other in the application. You had specifically said to your homeless officer that you wished to make an application on your own."
...
The panel concludes that after unsuccessfully applying for council housing you colluded with your brother to transfer your interest to him, for no financial settlement, and for him then to immediately issue with a notice seeking possession, for the purpose of you applying to the council as homeless. It is not the action of a reasonable person that you surrender your interest just because your brother demanded that you do so."
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he-
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court
(b) has an express or implied licence to occupy, ..."
"Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with-
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him."
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of [Part 7 of the Act]."
"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.
(3) A person shall be treated as becoming homeless intentionally if-
(a) he enters into an arrangement under which he is required to cease to occupy accommodation which it would have been reasonable for him to continue to occupy, and
(b) the purpose of the arrangement is to enable him to become entitled to assistance under this Part
and there is no other good reason why he is homeless."
"... where the issue is of a person's credibility it is often possible to input motives from assessing all relevant material without listening to personal explanations.
... To demand that, whenever bad faith is being imputed to homeless applicants, they should be heard by the decision-maker -- in addition to being fully interviewed by other officers of the local authority -- would, in my view, be to impose too heavy a burden on local authorities. That is not to say that there may not be circumstances when oral representations should be invited by a decision-maker. It may be that there will be instances where the requirement of orality is so compelling that the court would say that no reasonable authority could have acted without according such a facility to a homeless person applying for suitable accommodation."
"6(2) Except where a case falls within regulation 7, the authority to whom a request for a review under section 202 has been made shall:
(a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and
(b) if they have not already done so, notify the applicant of the procedure to be followed in connection with the review.
...
8(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant:
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing."
(1) the judge failed to consider whether regulation 8(2) applied;
(2) in fact regulation 8(2) did not apply because the Review Panel did not consider that there was a deficiency or irregularity in the original decision or the manner in which it was awarded;
(3) even if regulation 8(2) did apply, the question whether there should be an opportunity for Ms Lomotey to address the issues orally was a matter for the Review Panel;
(4) if regulation 8(2) did not apply as was the fact, regulation 6(2) allowed representations in writing and therefore envisaged an oral presentation as being truly exceptional. Nevertheless, there was no reason why a Review Panel should not allow oral submissions in an appropriate case. The decision whether to do so, however, could only be set aside if it was unreasonable in a Wednesbury sense;
(5) the regulations have been decided to be compliant with the Human Rights Act in the case of Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430;
(6) in any event, Ms Lomotey was asked to deal with the issue of collusiveness and responded by not disagreeing that there was collusion; and
(7) as to Mr Whyte,
(a) Ms Lomotey never included him on the Homeless Persons Enquiry Form and
(b) on being asked whether she wished to do so, she said she did not as they were no longer together.
In those circumstances Mr Lintott submits that there was no procedural unfairness on the part of the Review Panel and that the judge was wrong to hold that there was.
(1) that the judge's finding that Ms Lomotey was not fully interviewed about Mr Whyte's situation is not challenged;
(2) that the judge was correct to decide that the Review Panel should have given Ms Lomotey an opportunity to explain the position both about Mr Whyte and the charge of collusion;
(3) that there was no need for the judge to find that regulation 8(2) was applicable because the Review Panel were under a duty to give Ms Lomotey an opportunity, quite apart from regulation 8, to rebut the propositions used to determine the case against her.
"... Ms Lomotey was specifically asked about her marital status and she described herself as single. She had made it known that David Whyte the father of her children was not allowed into the house because he and her brother had a very poor relationship. However, she specifically informed me that her relationship with Mr Whyte was over and he did not form part of her application."
"Ms Lomotey until this letter has always maintained that she and her brother mutually agreed for her to take her name off the mortgage in favour of her brother and then for him to issue her with a notice to quit and it suited both of them if the council rehoused her. Her response to LB Enfield that this act contributed to her being intentionally homeless was not to retract her initial statement but consistently to ask what else could she have done."
"In my judgment the situation with respect to Mr Whyte, should in fairness have been fully explored with Miss Lomotey before a decision was made. Further, the question of alleged fraud over her surrender of the interest in her property should have been put to her fully, with an opportunity for her to deal with the issue. She was not given that opportunity."
ORDER: Appeal allowed with costs under section 11(1) of the Access to Justice Act; the respondent's liability assessed as nil.