Westminster City Council v Clarke

A tenancy or licence falls within the secure-tenancy regime only if it confers exclusive possession of a dwelling-house let as a separate dwelling. The extension of that regime to licences by section 79(3) of the Housing Act 1985 did not remove the requirement for exclusive possession.

Whether exclusive possession exists depends on the substance of the parties’ rights and the circumstances in which the accommodation is provided. Genuine powers retained to move residents, require sharing, enter rooms and supervise vulnerable occupants may demonstrate that a hostel operator retains possession. Merely describing an agreement as a licence, or using reservations designed as a pretence, cannot prevent a tenancy arising.

Westminster City Council accommodated Mr Clarke, a vulnerable homeless person, in a single-person hostel under an agreement described as a licence. He occupied a room containing facilities for living, sleeping and cooking. The agreement permitted the council to move him, require him to share, enter at any time and control his conduct through hostel staff.

After complaints about his behaviour, the council terminated the licence and sought possession. The county court made a possession order. The Court of Appeal reversed that decision, holding that Mr Clarke was a secure tenant and dismissing the possession claim.

The council appealed. The central issues were whether section 79(3) of the Housing Act 1985 permitted a licensee without exclusive possession to be a secure tenant and whether, upon the agreement’s true construction and in its operational context, Mr Clarke possessed his room exclusively.

1. Appeal allowed unanimously. Lord Templeman delivered the leading speech. Lord Bridge, Lord Griffiths, Lord Ackner and Lord Lowry agreed with his reasons. The Court of Appeal’s order was set aside and the county court’s possession order restored, subject to a substituted possession date.

2. Per Lord Templeman, Part IV of the Housing Act 1985 applies only to a tenancy of a dwelling-house let as a separate dwelling. Such an arrangement requires exclusive possession. Section 79(3), which applies Part IV to a licence as it applies to a tenancy, therefore protects only a licence possessing the same characteristic. It does not give security to lodgers or other licensees lacking exclusive possession.

3. Section 79(3) was a consolidating re-enactment of section 48 of the Housing Act 1980. The draftsman had no power to change the law when redrafting that provision. The contrary construction adopted in Family Housing Association v Jones [1990] 1 WLR 779 was rejected.

4. A room containing facilities for living, sleeping and cooking may constitute a separate dwelling even where bathroom and lavatory facilities are shared. Mr Clarke’s room had the necessary physical characteristics. His status therefore depended on whether the council had conferred exclusive possession.

5. Per Lord Templeman, exclusive possession must be determined from the rights conferred and reserved, evaluated in the circumstances in which the accommodation is provided. A landlord cannot avoid a tenancy merely by adopting licence terminology or inserting sham reservations. Here, however, the reservations were genuine and served the hostel’s rehabilitative and supervisory purposes.

6. The council legitimately retained possession of every room so that it could move residents, require sharing, enter rooms, enforce hostel conditions and supervise vulnerable occupants. Those immediate and extensive powers were inconsistent with Mr Clarke having exclusive possession. He was consequently a licensee with rights corresponding to those of a lodger, not a secure tenant.

7. Lord Templeman emphasised the exceptional factual context. The decision did not permit public or private landlords to evade statutory protection through carefully drafted licence language. The cause was remitted to the county court to proceed consistently with the House’s judgment.

1. House of Lords: The council’s appeal was allowed unanimously. The Court of Appeal’s order was set aside, save as to legal-aid taxation, and the county court’s possession order was restored with a substituted possession date.

2. Court of Appeal: Dillon, Balcombe and Ralph Gibson LJJ reversed the county court. They held that Mr Clarke was a secure tenant of his room and dismissed the council’s possession claim.

3. Westminster County Court: Mr Recorder Langan QC made an order for possession in favour of the council.