Westminster City Council v Clarke

The House of Lords held that the occupier of a room in a local authority hostel was a licencee and not a secure tenant because the agreement did not confer exclusive possession. Section 79(3) of the Housing Act 1985, construed with its statutory predecessor (section 48 of the Housing Act 1980), did not alter the established principle that secure tenancy status requires exclusive possession of a separate dwelling. The decision turned on the terms of the licence and the purpose and circumstances of the hostel: the council legitimately retained possession and wide management rights to enable supervision and reallocation of rooms for vulnerable occupiers.

This was an appeal by Westminster City Council against a Court of Appeal decision that had found Mr Clarke to be a secure tenant of a room in a council hostel. The council provided temporary accommodation for vulnerable homeless single men under a document headed "Licence to Occupy" and allocated Mr Clarke Room E. Proceedings for possession were issued after complaints of nuisance and an incident in which Room E was damaged. At first instance the trial judge ordered possession; the Court of Appeal reversed and held Mr Clarke a secure tenant. The House of Lords allowed the council's appeal and restored the county court order.

The nature of the claim: possession proceedings by a local housing authority against an occupier in hostel accommodation; the relief sought was possession.

Issues framed by the court:

• Whether the occupier was a secure tenant under Part IV of the Housing Act 1985 or merely a licencee.
• Whether Section 79(3) of the Housing Act 1985 altered the pre-existing rule requiring exclusive possession for tenancy status.
• Whether the terms of the licence and the practical circumstances of the hostel gave exclusive possession of a separate dwelling to the occupier.

Reasoning: The Lords analysed Part IV (in particular section 79 and the tenant condition in section 81), relevant Rent Acts authorities on separate dwellings, and prior authorities such as Street v Mountford. They concluded that Section 79(3) was consolidating and did not change the law established by section 48 of the Housing Act 1980. Applying the exclusive possession test to the licence terms and to the hostel's purpose and management regime (power to reallocate rooms, right of entry, conditions limiting visitors and requiring compliance with wardens), the court found the council had retained possession to supervise and assist vulnerable occupiers, so that Mr Clarke did not enjoy exclusive possession and was a licencee. The Lords emphasised the special factual context of the hostel and that the decision did not permit landlords generally to evade tenancy protections by drafting.

Appeal allowed. The House of Lords restored the county court order for possession because the licence and the factual circumstances showed that exclusive possession was not granted; Section 79(3) of the Housing Act 1985 did not change the pre-existing requirement that exclusive possession is necessary to create a secure tenancy.

County Court (Westminster) — order for possession 16 October 1989 (trial judge Recorder Langan Q.C.); Court of Appeal — reversed the county court and held the occupier to be a secure tenant (Order of the Court of Appeal 21 March 1991); House of Lords — appeal allowed and county court order restored (6 February 1992).