Possession order not needed to evict from Part VII accommodation: Supreme Court

A possession order is not required to evict occupiers of temporary accommodation provided under Part VII of the Housing Act 1996, a majority of the Supreme Court has ruled.

The case of R (on the application of ZH and CN) v London Borough of Newham and London Borough of Lewisham UKSC 2013/0194 concerned whether temporary accommodation provided under Part VII to an applicant for assistance on the basis of homelessness, pursuant to a local authority’s interim duty to house such an applicant while the authority makes further enquiries, constituted a "premises occupied as a dwelling under a licence" for the purposes of s. 3(2B) Protection from Eviction Act 1977 (PEA).

Under section 3, landlords of dwellings must recover possession through court proceedings. Section 3A sets out a number of exceptions.

The Supreme Court also considered whether Article 8 of the European Court of Human Rights required that a public authority must obtain a court order before it can evict an individual from his/her home.

The first of the two cases saw CN and family occupy temporary accommodation provided by the London Borough of Lewisham pursuant to its interim duty.

Lewisham later notified CN’s family that it had concluded that the family were ineligible for assistance and required them to leave the temporary accommodation.

The family applied for a number of further reviews and assessments, extending the process. On 4 May 2012 CN applied for judicial review of Lewisham’s decision.

ZH and family were meanwhile provided with temporary accommodation by the London Borough of Newham in 2012, pursuant to its interim duty.

Newham notified the family on 19 February 2013 that it had concluded that they were ineligible for assistance and required them to leave their temporary accommodation by 18 March 2013, later extended to 21 March 2013.

On 18 March 2013 ZH applied for judicial review of Newham’s decision. ZH’s claim was transferred to the Court of Appeal to be heard with CN’s claim.

Both CN and ZH’s claims were dismissed by the Court of Appeal.

The Supreme Court dismissed the appeal by a majority of five to two. The majority held that Newham and Lewisham were entitled to evict the appellants from s.188 accommodation without first obtaining a court order.

Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agreed) gave the main judgment. Lord Carnwath gave a concurring judgment, while Lord Neuberger and Lady Hale gave dissenting judgments.

On the issue of whether s.188 accommodation was “occupied as a dwelling under a licence” for the purposes of ss.3 and 5 PEA, Lord Hodge held that the word ‘dwelling’ did not have a technical meaning but “as a matter of nuance” suggested a more settled occupation than ‘residence’ and could be equated with one’s home. It bore the same meaning in PEA as in predecessor legislation (the Rent Acts).

Lord Hodge said that on an assessment of the legal and factual context, a licence to occupy s.188 accommodation was not granted for the purpose of using the premises “as a dwelling”.

First, the statutory context was inconsistent with such a purpose; s.188 imposed a low threshold duty on a local housing authority to provide interim accommodation (not a home or fixed abode) for a short and determinate period only. “Most significantly, a person who is given temporary accommodation under Part VII of the 1996 Act does not cease to be homeless,” the judge said.

Secondly, such a licence was granted on a day-to-day or nightly basis which recognised hat the authority might require the applicant to transfer to alternative accommodation at short notice.

Thirdly, (although this was not of itself determinative) the imposition of the requirements of PEA would significantly hamper the operation by the authorities of the statutory scheme under the 1996 Act.

“The authority, while awaiting the court order for possession, would have to provide accommodation to someone about whom it had made an adverse section 184 decision and to whom it had already given a reasonable opportunity to obtain alternative accommodation, thereby tying up scarce housing resources,” Lord Hodge said.

“In a time of strained public finances this may deprive other applicants who may have priority need of suitable accommodation and also restrict the authority’s ability to provide accommodation where it has a discretion to do so, as under sections 188(3) and 204(4) of the 1996 Act.”

Lord Hodge added that the absence of an express exclusion for accommodation under s. 188 of the 1996 Act in s.3A PEA for s.188 accommodation did not mean that such accommodation fell within s.3 PEA.

Parliament sought to confirm excluded tenancies and licences for the avoidance of doubt but did not intend to thereby extend protection to accommodation that would not have classified as a “dwelling” under the Rent Acts.

Lord Carnwath added that settled practice might, in appropriate circumstances, be an aid to statutory interpretation; were the issues more finely balanced, the fact that the Court of Appeal’s statutory interpretation in Mohammed v Manek (1995) 27 HLR 439 had been adopted in departmental guidance would be an additional reason to dismiss the appeal.

In dissenting judgments, Lord Neuberger and Lady Hale held that in the context of PEA 1977 'dwelling' had at least as broad a meaning as 'residence'.

Lord Neuberger said: “Plainly, it seems to me, these sections [3 and 5 PEA] should not be accorded an unnaturally narrow effect; indeed, I think one should lean in favour of a wide, rather than a narrow, meaning when it comes to deciding the ambit of these sections.

“They do not represent a substantial incursion into the property rights of the owners of premises, and they reflect a policy that people who have been lawfully living in premises should not be summarily evicted or locked out.”

The Supreme Court President suggested that it would not be appropriate to exclude from the ambit of these sections accommodation simply because its occupation was short term, provisional or precarious.

He argued that this interpretation was supported by the absence of a specific exclusion in s.3A PEA.

On the question of whether Article 8 ECHR required the authorities to obtain court orders before carrying out evictions, the parties had been in agreement that the appellants’ Article 8 rights were engaged.

Lord Hodge (with whom Lord Neuberger, Lord Wilson, Lord Clarke, Lord Carnwath and Lord Toulson agreed) held that the interference with the appellants’ Article 8 rights was objectively justified.

The termination by the authority of an unsuccessful applicant’s licence to occupy s.188 accommodation was in accordance with the law and pursued the legitimate aim of inter alia accommodating other homeless applicants.

“The local authority, faced with the pressing social problem of homelessness and charged with duties to provide accommodation for the homeless with priority need, will wish to make the accommodation available to other applicants who are entitled to benefit from the provision of interim accommodation under the 1996 Act,” Lord Hodge said.

He added that recovery of possession was proportionate to the aim being pursued. “It is well known that authorities have limited resources to provide accommodation to individuals who claim to be homeless and in priority need. As a general rule there can be no justification for preferring those whose claims have been investigated and rejected over those whose claims are still the subject of inquiry under section 184 of the 1996 Act and who may be found to be homeless, to have priority need, and to be the objects of the authority’s full housing duty.”

The procedural safeguards contained in the 1996 Act, the Children Act 1989, and by way of judicial review, together afforded fair procedure such as to comply with the requirements of Article 8; there was “no need to impose the additional procedural hurdle [of obtaining a court order] which would impose costs on an authority without any significant benefit to the applicant”.

As Lady Hale found for the appellants as a matter of statutory interpretation, in her judgment the Article 8 issue did not arise.

Matt Hutchings and Jennifer Oscroft of Cornerstone Barristers appeared for Newham and Lewisham councils, instructed by their legal departments.

Commenting on the ruling, Cornerstone said: “As the dissenting judgments show, the legal arguments in these cases were not easy. Given the substantial resource implications and the serious pressures they are under, many local authorities will feel very relieved with the outcome.”

Andrew Arden QC, Toby Vanhegan, Justin Bates and Senay Nihat of Arden Chambers appeared for the appellants, instructed by TV Edwards LLP.

Martin Chamberlain QC and Oliver Jones of Brick Court Chambers acted for the Treasury Solicitors.

This article was based in part on the Supreme Court's press summary for the judgment.