City of London Corporation v Bussandra

Factual and Procedural Background

This appeal concerns whether the respondent (hereinafter "Appellee") became homeless intentionally when he surrendered a tenancy of a flat in Brighton in 2016. The Appellee, aged 51 and described as gay, had a longstanding history of recurrent depression, anxiety and obsessive-compulsive traits according to contemporaneous medical letters. In November 2015 the Appellee took a tenancy of a flat from a housing association ("Company B"). He quickly regretted the move, telling Company B and his GP that he wished to return to London where family and friends lived. In late December 2015 the Appellee reported the theft of bank cards from the Brighton address and, following communications with Company B in January 2016 indicating a transfer back to London could take years, he gave four weeks' notice to end the tenancy on 12 January 2016, citing antisocial behaviour and theft by neighbours.

Medical records and later reports (from treating and other clinicians) described recurrent depressive episodes, post-traumatic stress disorder and other conditions; subsequent years saw periods of sofa‑surfing and rough sleeping. In 2022 the local authority ("Appellant") decided it did not owe the main housing duty under section 193 of the Housing Act 1996 because it considered the Appellee had become homeless intentionally under section 191. The Appellee sought an internal review. The review officer ("Review Decision") upheld the Appellant's decision, finding the Appellee acted deliberately in surrendering the tenancy and rejecting evidence that he was suffering a major depressive episode that made him unable to rationalise and think clearly.

The Appellee appealed the Review Decision to the County Court. His appeal succeeded: Judge Roberts allowed the appeal, finding the review officer had applied the wrong legal test, had not given adequate reasons for departing from medical evidence and had insufficiently applied the public sector equality duty. The Appellant then appealed to the court giving rise to this opinion; the Court of Appeal's task was to determine whether the Review Decision was legally flawed on the grounds relied on by the Appellee.

Legal Issues Presented

1. Did the review officer apply the correct legal test when assessing whether the Appellee became "homeless intentionally" under section 191 of the Housing Act 1996?
2. Did the review officer give adequate reasons for departing from the opinions of a clinician who had provided contemporaneous and recent evidence (specifically, why he disagreed with that clinician's view)?
3. Did the review officer comply with the public sector equality duty (PSED) under section 149 of the Equality Act 2010 in reaching his conclusions?

Arguments of the Parties

Appellee's Arguments (as advanced by Attorney Davies)

• The lawful test for "deliberate" conduct under section 191 should accommodate conduct caused by mental health problems: if a mental health problem played a significant role in the act or omission, that act/omission should not be regarded as deliberate.
• The review officer applied a more demanding test than the Code and did not follow the Code's guidance; he failed to give adequate reasons for departing from the opinion of the clinician who had been treating the Appellee.
• The review officer failed adequately to apply the PSED and paid only lip service to equality obligations.

Appellant's Arguments (as advanced by Attorney Hutchings)

• The correct legal question where mental health is relied upon is akin to mental capacity analysis: the law presumes capacity and incapacity must be strictly established; authorities on capacity and the common law supply relevant guidance.
• The review officer followed the Code of Guidance and did not apply a stricter test adverse to the Appellee; his assessment was consistent with relevant legal authorities.
• Where a reviewer departs from clinical evidence, it is not fatal provided adequate reasons are given; and the review officer had addressed the medical reports and given reasons for his conclusions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined (i) the proper legal test for "deliberately" in section 191(1) of the Housing Act 1996, (ii) whether the review officer gave adequate reasons for departing from clinical opinion, and (iii) whether the review officer complied with the PSED. The analysis proceeded on the basis that precedents establish the ordinary meaning of "deliberately" applies to the relevant act or omission (not necessarily to an intention to become homeless) and that review decisions must be interpreted benevolently but must show proper consideration of statutory requirements and guidance.

On issue (i) the court reviewed the line of authority (Robinson, Devenport, Hawthorne, Ugiagbe, Pieretti and others) and the Code. The court concluded that:

• "Deliberately" refers to the act or omission itself and can be negated by lack of capacity, but mental health problems need not be equated solely with lack of legal capacity; the Code contemplates that limited mental capacity or temporary aberrations caused by mental illness may render conduct non-deliberate.
• The court rejected the Appellee's broader submission that any significant role played by mental health in a decision would suffice to render it non-deliberate, finding that such an approach would be inconsistent with the ordinary meaning of "deliberately", the Code and the statutory scheme.
• The court found the review officer had not applied an incorrect test: he used language responding to clinical evidence (for example, phrases about being unable to "rationalise and think clearly") but did so in the context of engaging with the clinician's opinion rather than purporting to adopt a narrower test. The review officer had, in the court's view, followed the Code and applied the correct approach.

On issue (ii) (adequacy of reasons), the court acknowledged authorities requiring careful explanation when departing from qualified clinical opinion (Guiste). The court found, however, that the review officer had given adequate and intelligible reasons: he accepted the Appellee had mental health issues and a disability, considered the clinical reports (including recent and earlier reports), examined bank statements and contemporaneous conduct, and explained why he considered the overall picture to indicate a rational decision to vacate rather than conduct attributable to a temporary aberration of mind. The court held the Review Decision enabled the reader to understand why the reviewer disagreed with the clinician.

On issue (iii) the PSED, the court reiterated the legal test from Hotak and related authorities: a reviewer must focus sharply on disability, its extent and likely effect if homeless. The court found the review officer had acknowledged the Appellee's disabilities, expressly considered their implications in assessing both deliberateness and reasonableness of continuing to occupy the flat, and had documented reasons on the availability of services, the Appellee's mobility and behaviours and the impact of the theft. Accordingly, the court concluded the reviewer had complied with the PSED in substance.

Weighing the authorities, the Code and the factual materials, the court determined the Review Decision was not legally flawed on the grounds advanced by the Appellee.

Holding and Implications

HOLDING: The court allowed the Appellant's appeal from the County Court decision (i.e. the decision of Judge Roberts) and concluded that the Review Decision was not flawed. The review officer's determination that the Appellee became homeless intentionally was not impugned on the grounds advanced.

Implications:

• The immediate effect is that the Appellant's Review Decision stands and the Appellant (local authority) is not obliged, under the "main" duty in section 193 of the Housing Act 1996, to secure accommodation for the Appellee on the basis that he became homeless intentionally.
• The court declined to adopt the broader test urged by the Appellee that any significant causal role of mental illness in the act would negate deliberateness; instead it confirmed that mental illness short of incapacity may negate deliberateness in appropriate cases but that the ordinary meaning of "deliberately" and the statutory scheme circumscribe that concept. No novel legal principle was established beyond clarification of how existing authorities and the Code interact in this context.
• No new precedent displacing prior authorities was created; the court applied existing case law and the Code to the facts and concluded the reviewer had acted within lawful bounds and provided adequate reasons and PSED consideration.