Fletcher v London Borough of Brent

For the purposes of section 175(1) of the Housing Act 1996, an authority must identify the precise legal basis on which accommodation is said to be available to an applicant. A landlord's willingness to allow occupation is insufficient.

A valid notice to quit given by one joint tenant terminates the joint tenancy without the other tenant's concurrence. If the tenancy has ended, the authority must determine whether an express or implied licence exists, its terms, and whether it entitles the applicant to occupy the premises as a residence. A court hearing a statutory appeal cannot make factual findings that the reviewing authority did not make.

The appellant had held a joint secure tenancy with his former wife. After family proceedings ended, the wife served a notice to quit and left the property. The council nevertheless proceeded on the basis that the tenancy continued and decided on review that accommodation remained available to the appellant. It therefore found that he was not homeless under section 175 of the Housing Act 1996.

Her Honour Judge Bevington dismissed the appellant's section 204 appeal in the Willesden County Court on 7 November 2005. She considered that the property was available whether the appellant remained a tenant or had a licence. The appellant sought permission for a second appeal. The central issue was whether the review and the County Court could treat the accommodation as available without determining the legal nature and terms of the appellant's right, if any, to occupy it.

Appeal allowed unanimously. Peter Smith J gave the principal judgment. Mummery LJ agreed and gave additional reasons. Rix LJ agreed with both judgments.

1. The court granted permission under rule 52.13(b) of the Civil Procedure Rules. The errors in the review decision and in the County Court's approach supplied a compelling reason for a second appeal.
2. The wife's notice to quit validly terminated the joint secure tenancy. One joint tenant may unilaterally determine the tenancy, irrespective of the other joint tenant's concurrence or knowledge. The landlord's wish that the appellant should remain in occupation was irrelevant. The notice also gave the requisite period of notice: Harrow LBC v Qazi [2004] 1 AC 983 and Notting Hill Housing Trust v Roomus [2006] 1 WLR 1375 C.A. applied.
3. Section 175(1) of the Housing Act 1996 required the reviewing officer to establish the legal basis of any asserted entitlement to occupy. Once the tenancy had ended, the officer could not conclude that the property was available merely because the council offered keys and wished the appellant to return. It was necessary to decide whether there was an express or implied licence, identify its terms, and determine whether it entitled him to occupy the property as a residence. A licence merely to store possessions could not necessarily have that effect. A secure licence, by contrast, could provide the necessary entitlement.
4. The County Court erred by treating the distinction between a tenancy and a licence as immaterial. Mummery LJ added that the Court of Appeal, confined to correcting errors of law, could not make factual findings on a licence issue which the reviewing officer had not addressed.
5. The review decision was quashed in substance and the matter was remitted to the reviewing officer. The officer was to reconsider the case on the basis that the tenancy had ended and to investigate any express or implied licence and its terms. The council's out-of-time application was refused, save as to the costs question.

• Court of Appeal (Civil Division) — permission granted and appeal allowed: [2006] EWCA Civ 960. The matter was remitted to the reviewing officer.
• Willesden County Court — Her Honour Judge Bevington dismissed the section 204 appeal on 7 November 2005.
• Local housing authority review — on 11 July 2005, the council decided that the appellant was not homeless under section 175 of the Housing Act 1996.