Westminster v Boraliu

A tenancy granted by a local housing authority in pursuance of any function under Part VII of the Housing Act 1996 is not a secure tenancy under paragraph 4 of Schedule 1 to the Housing Act 1985, unless the authority notifies the tenant that it is to be secure.

Paragraphs 4 and 6 of Schedule 1 have independent purposes and are not mutually exclusive. Paragraph 6 may apply outside the homelessness functions in Part VII, including where the landlord is not a local housing authority or where temporary housing is provided under another statutory function. Its potential overlap with paragraph 4 does not qualify paragraph 4's unambiguous terms.

Westminster City Council let the respondent temporary accommodation which it leased from a housing association. The tenancy agreement described the tenancy as non-secure by reference to paragraph 6 of Schedule 1 to the Housing Act 1985.

After the respondent refused alternative accommodation, the council decided that its housing duty under section 193 of the Housing Act 1996 had ended and commenced possession proceedings. A Deputy District Judge made a possession order. On appeal, HHJ Knight QC allowed the respondent's appeal. He held that paragraphs 4 and 6 of Schedule 1 were mutually exclusive and that the council could not rely on paragraph 4.

The council's expedited appeal raised whether a tenancy granted in discharge of a Part VII homelessness function remained within paragraph 4 where the authority held the dwelling under a lease which could also bring paragraph 6 into play.

1. Appeal allowed unanimously. Chadwick LJ held, with whom Gage and Lawrence Collins LJJ agreed, that HHJ Knight QC had erred in treating paragraphs 4 and 6 of Schedule 1 to the Housing Act 1985 as mutually exclusive.

2. The tenancy plainly fell within paragraph 4. It had been granted in pursuance of the council's Part VII function under section 193 of the Housing Act 1996, and the council had not notified the respondent that it was to be regarded as secure. Paragraph 4 therefore applied according to its unqualified language.

3. Paragraph 6 did not impliedly restrict paragraph 4. It had a separate field of operation because it could apply to a qualifying landlord which was not a local housing authority, and to temporary accommodation provided otherwise than under Part VII. The legislative history confirmed that the predecessor provisions had distinct purposes. Overlap between the provisions did not make paragraph 6 redundant.

4. It was therefore unnecessary to decide whether the paragraph 6(b) condition was satisfied in this case. The court allowed the council's appeal.

• Court of Appeal (Civil Division) — allowed the council's appeal: [2007] EWCA Civ 1339.
• Central London County Court — HHJ Knight QC allowed the tenant's appeal from the possession order on 24 August 2007.
• Central London County Court — Deputy District Judge Harmer ordered possession on 6 June 2007.