London Borough Of Hackney v Markou

A public law duty to house a homeless person under Part VII of the Housing Act 1996 is separate from any private law right to occupy particular premises. Failure to perform that duty cannot create a right to remain in council accommodation. Issuing a rent card or receiving housing benefit does not, without more, establish an intention to grant a tenancy. The Human Rights Act does not confer a right to occupy another person’s property as a trespasser. On a second appeal, permission requires an important point of principle or practice, or another compelling reason.

The Council owned a flat which had been unlawfully sublet to the applicant by a council tenant who misled him about the tenancy. The applicant was evicted after an initial possession order, then unlawfully re-entered the flat. A district judge made a further possession order on 20 November 2000. Mr Recorder Morris dismissed the applicant’s appeal on 21 February 2001 and granted the Council leave to enforce possession. The applicant applied to the Court of Appeal for a stay and permission for a second appeal, relying on the homelessness duty under Part VII of the Housing Act 1996, a rent card, housing benefit payments, alleged procedural unfairness and human rights. The central issue was whether any of those matters gave him a legal right to occupy the flat.

Lord Justice Tuckey, giving the single judgment, refused the application for a stay and permission to bring a second appeal.

1. The applicant had no right to remain merely because he had been deceived by the unlawful subtenant. Fraud by the subtenant did not create a legal right to occupy the Council’s flat.
2. Any public law duty owed under Part VII of the Housing Act 1996 was distinct from any private law right to occupy the premises. Failure to discharge the homelessness duty could not, as a matter of law, confer such a right.
3. The rent card and housing benefit payments could not in any event establish that the Council intended to grant a legal right to occupy. The issue technically arose before the earlier possession proceedings and could not be reopened because the earlier possession order had not been appealed. Nothing after the unlawful re-entry could create the claimed right.
4. The applicant had received a fair hearing before the Recorder. His real complaint was that his arguments had been rejected. The Human Rights Act did not give a trespasser a right to occupy another person’s property.
5. This was a second appeal. Permission required an important point of principle or practice, or another compelling reason. No such feature existed. The application was dismissed, and the stay could not be granted.

• Court of Appeal (Civil Division): refused permission for a second appeal and refused a stay; application dismissed.
• Shoreditch County Court: Mr Recorder Morris dismissed the applicant’s appeal on 21 February 2001 and granted the Council leave to enforce the possession order.
• Shoreditch County Court: a district judge made the possession order on 20 November 2000.