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Acting in good faith

This content applies to England

The meaning of 'acting in good faith'.

An act (or omission) in good faith by someone who was unaware of any relevant fact cannot be treated as a deliberate act.[1]

The Court of Appeal has held that there is no requirement in the Housing Act 1996 that any ignorance of a relevant fact must be reasonable, although wilful ignorance would be held to fail the good faith test.[2]

Principles that apply

The Courts enumerated principles that apply where someone claims to be unaware of a material fact:[3]

  • whether an applicant has enquired into the existence of the fact is relevant to her/his awareness of it
  • the fact is a relevant one if the applicant would have taken it into account when giving up accommodation had s/he been aware of it
  • a fact must be sufficiently clear and definite for its existence to be objectively established
  • the fact of which the applicant is unaware must exist at the time of the deliberate act or omission, the issue does not concern future events which may or may not occur[4].

The courts have held that there is a distinction between honest blundering and carelessness, or holding unreasonable beliefs, in which case someone can still be acting in good faith,[5] as opposed to dishonesty, such as misrepresenting one's income to get a higher mortgage, where there can be no question of the person acting in good faith.[6]

Homelessness caused because a tenant was unaware of the possibility of housing benefit being restricted should not result in intentional homelessness, where this belief amounts to more than mere 'aspiration'.[7] Also, a person who was invited to come from abroad to live with a relative, but who then found that the accommodation was inadequate, was not be found intentionally homeless as she was unaware of the inadequate size of the accommodation. [8]

If the authority believes the applicant is not acting in good faith, it is obliged to tell the applicant when s/he is being interviewed.[9] However, an unexpected inability to find employment or accommodation where the prospect of finding them was a matter of hope or aspiration, rather than well-founded expectation, has been found not to be a relevant fact.[10]

Code of Guidance

The Homelessness Code of Guidance suggests that examples of acts or omissions made in good faith might include where:[11]

  • someone gets into rent arrears while being unaware that s/he may be entitled to universal credit, housing benefit or other benefits
  • an owner occupier sells or surrenders the property before foreclosure when s/he is faced with foreclosure or possession proceedings to which there is no defence
  • a tenant surrenders the property to the landlord when faced with possession proceedings to which there is no defence and the granting of a possession order would be mandatory. Although the authority might consider it would have been reasonable for the tenant to continue to occupy, the tenant's actions would not be deliberate if s/he decided to leave the accommodation in ignorance of relevant facts.[12]

The Code of Guidance also states that, where someone has left private rented accommodation having received a valid notice to quit or notice that an assured shorthold tenancy has come to an end and the landlord requires possession of the property, that act will be in good faith if the applicant was genuinely unaware that they had the right to remain in the property until the court had granted an order and warrant for possession.[13]

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] s.191(2) Housing Act 1996; Bury MBC v Gibbons [2010] EWCA Civ 327; para 9.16 Homelessness Code of Guidance, MHCLG, Feb 2018.

[2] Ugiagbe v Southwark LBC [2009] EWCA Civ 31; O'Connor v Kensington and Chelsea RLBC [2004] ECWA Civ 394; R v Tower Hamlets LBC ex parte Rouf (1991) 23 HLR 460, CA; para 9.23 Homelessness Code of Guidance, MHCLG, Feb 2018.

[3] R v Westminster CC ex parte N'Dormadingar [1997], QBD.

[4] see also Najim v Enfield [2015] EWCA Civ 319 and Trindade v Hackney LBC [2017] EWCA Civ 942.

[5] R v Hammersmith and Fulham ex parte Lusi (1991) 23 HLR 2609, QBD; R v Tower Hamlets LBC ex parte Rouf (1991) 23 HLR 460, CA.

[6] R v Barnet LBC ex parte Rughooputh (1993) 25 HLR 607, CA; para 9.25 Homelessness Code of Guidance, MHCLG, Feb 2018.

[7] R v Westminster ex parte Obeid (1996) 29 HLR 389, QBD.

[8] R v Wandsworth LBC ex parte Rose (1983) 11 HLR 105, QBD.

[9] R v Westminster ex parte Moozary-Oraky (1994) 26 HLR 213, QBD.

[10] Aw-Awden v Birmingham CC [2005] EWCA Civ 1834.

[11] para 9.26 Homelessness Code of Guidance, MHCLG, Feb 2018.

[12] para 9.27 Homelessness Code of Guidance, MHCLG, Feb 2018.

[13] para 9.24 Homelessness Code of Guidance, MHCLG, Feb 2018.

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