Desnousse v London Borough of Newham & Ors Rev 1

Accommodation made available under the interim homelessness duty in section 188(1) of the Housing Act 1996, or the temporary duty in section 190(2)(a), is generally not occupied as a dwelling under a licence for section 3(2B) of the Protection from Eviction Act 1977. A former licensee may therefore be evicted without a possession order once the licence has lawfully ended.

By a majority, the court held that this rule is compatible with article 8. The temporary public-law scheme, its review and appeal safeguards, and the need to preserve scarce accommodation for other homeless applicants justified the absence of mandatory possession proceedings. A contrary agreement or sufficiently exceptional occupation may displace the general rule.

A local housing authority secured a self-contained flat for a homeless applicant and her children while it investigated her application under Part 7 of the Housing Act 1996. It later decided that she was homeless, eligible and in priority need, but intentionally homeless. After giving notice, it proposed that the private owner recover the flat without obtaining a possession order.

His Honour Judge Roberts in Bow County Court dismissed the applicant’s claim for an injunction but granted permission to appeal. The Court of Appeal considered whether section 3 of the Protection from Eviction Act 1977 required a court order and whether the earlier decision in Mohamed v Manek remained binding or had to be read differently under articles 6 and 8 of the Convention.

1. Appeal dismissed by a majority. Tuckey and Pill LJJ held that Mohamed v Manek remained binding. It established that, as a general rule, accommodation made available under section 188(1) of the Housing Act 1996 pursuant to a licence is not occupied as a dwelling under a licence within section 3(2B) of the Protection from Eviction Act 1977. The rule also extends by close analogy to temporary accommodation under section 190(2)(a). The court left open whether it also applies where the accommodation was granted under a tenancy.

2. The earlier authority was not confined to hotels or hostels. Its majority reasoning stated a general rule for interim homelessness accommodation. The standard agreement and the applicant’s occupation of the self-contained flat for almost five months did not constitute a contrary agreement or sufficiently exceptional occupation. The decision was neither per incuriam nor displaced by subsequent legislative changes or later decisions concerning the meaning of a dwelling.

3. The flat had become the applicant’s home for article 8 purposes. Eviction therefore interfered with her right to respect for that home. The majority nevertheless held that the interference was justified and proportionate. Part 7 creates a temporary safety-net scheme, supported by review, appeal, advisory and discretionary accommodation safeguards. Requiring possession proceedings in every case would delay the reuse of scarce accommodation, increase expense and manpower demands, and impair authorities’ ability to house other persons to whom duties were owed.

4. Article 6 did not require a different result. The relevant issue was the compatibility of the statutory scheme with article 8, and an occupier could seek an injunction where a private-law right or an unexpired statutory accommodation period was genuinely in issue.

5. Dissenting, Lloyd LJ would have allowed the appeal. He considered the distinction between tenants, who might receive section 3 protection, and licensees arbitrary. In his view article 8 required the procedural safeguard of a possession order where self-contained licensed accommodation constituted the occupier’s home.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal and upheld the refusal of a permanent injunction: [2006] EWCA Civ 547.

2. Bow County Court: His Honour Judge Roberts dismissed the claim for an injunction restraining eviction without a possession order and granted permission to appeal. No neutral citation is stated.