Law Report: Tenant's means were relevant: Regina v Wandsworth London Borough Council, ex parte Hawthorne.

In deciding, under section 60 of the Housing Act 1985, whether a person had become homeless intentionally, on the ground of a persistent and deliberate failure to pay rent, a housing authority was obliged to take into account the applicant's resources and to consider whether the failure to pay rent might have been caused by the inadequacy of those resources to cover both rent and the maintenance of a family.

The Court of Appeal dismissed an appeal by Wandsworth Borough Council, London, against the decision of Sir Louis Blom-Cooper QC, sitting as a deputy High Court judge on 21 January 1994, granting the applicant, Yvette Hawthorne, judicial review by way of an order of certiorari to quash the council's decision, confirmed on 16 July 1993, that she was intentionally homeless.

Section 60(1) of the 1985 Act provides: '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.'

The applicant, aged 32, was separated from her husband, Trevor Hawthorne. She had five children aged between two and 13. She was unemployed and in receipt of supplementary benefit, child benefit and housing benefit. She had a secure tenancy of council premises from 1986 but had got into arrears with the rent. She contended she could not pay the rent because the housing benefit did not cover it, and because she needed the money to maintain her children.

She was evicted for non-payment of rent and temporarily housed in bed and breakfast accommodation while the council reviewed her case. They concluded, however, that although she was in priority need, her homelessness was intentional because she had 'wilfully and persistently' failed to pay rent.

The letter added: 'Full consideration has been given to your reasons for non- payment of the rent and these were taken into account when making the final decision.'

Timothy Straker (Wandsworth LBC) for the council; Sylvester Carrott (Lawrence & Co) for the applicant.

LORD JUSTICE NOURSE said that in spite of their assertions to the contrary, he was satisfied the council did not consider whether the applicant's failure to pay rent was caused by the inadequacy of her resources to cover both the rent and the maintenance of her children. While they might have considered her finances in a general way, the expression 'wilfully and persistently' strongly suggested the council thought it was enough for the applicant to have made a considered decision not to pay the rent. They never asked themselves what had caused that decision. The question was whether they ought to have done so.

Mr Straker submitted that a person did or failed to do something 'deliberately' if he made a considered choice between two courses of action or inaction, either of which he was able to take. If he made a considered decision to apply the only money he had in his pocket in maintaining his children instead of paying it to his landlord, he deliberately failed to pay the rent.

His Lordship rejected that construction. The purpose of Part III of the 1985 Act was to house the homeless. Admittedly, it was no part of that purpose to house those whose homelessness had been brought upon them by their own fault. But equally, it was no part of it to refuse housing to those whose homelessness had been brought upon them without fault on their part, for example by disability, sickness, poverty or even a simple inability to make ends meet.

Whether, in a case of non-payment of rent, there was a sufficient nexus between the cause relied on and the failure to pay to establish that it was not deliberate, would be for the housing authority to consider and decide upon. But consider it they must.

The Homelessness Code of Guidance for Local Authorities (3rd edn, 1991) to which, by section 71(1) of the 1985 Act, housing authorities were required to have regard when exercising their functions, provided by para 7.4:

'The following points are relevant in determining intentionality. The act or omission must have been deliberate. An applicant should always be given an opportunity to explain an act or omission. Generally the following should not be considered deliberate: . . . (b) where an applicant has lost his/her home . . . because s/he got into rent or mortgage arrears because of real financial difficulties. . . and could genuinely not keep up the rent payments or loan repayments even after claiming benefits and for whom no further financial help is available. . .'

In his Lordship's judgment, paragraph 7.4(b) correctly stated the law. LORD JUSTICE HIRST and LORD JUSTICE WAITE agreed.