CN, R (on the application of) v London Borough of Newham

Temporary accommodation secured under the homelessness duties in sections 188 or 190(2) of the Housing Act 1996 is not ordinarily accommodation occupied as a dwelling under a licence for the purposes of section 3(2B) of the Protection from Eviction Act 1977. The authority therefore need not obtain a possession order before terminating it.

Article 8 does not alter that conclusion. An occupier who raises a seriously arguable proportionality issue may challenge the decision by judicial review. The court must be able to assess proportionality and relevant disputed facts, considering the decision-making process as a whole.

CN and ZH occupied privately owned temporary accommodation provided by local housing authorities under section 188(1) of the Housing Act 1996 while homelessness inquiries were conducted. Each authority later decided that the applicant had become intentionally homeless and gave notice terminating the accommodation.

CN appealed from a decision of Philip Mott QC, sitting as a Deputy High Court Judge, refusing judicial review. ZH’s claim was transferred from the Administrative Court to the Court of Appeal and heard with CN’s appeal. The central issue was whether Mohammed v Manek and Desnousse remained binding after the Supreme Court’s decisions in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, and whether Article 8 required possession proceedings before eviction.

1. Claims dismissed. Lord Justice Kitchin gave the leading judgment, with Lord Justice Floyd and Lord Justice Moses agreeing.
2. Temporary accommodation provided under section 188(1), or under section 190(2), of the Housing Act 1996 is ordinarily outside section 3(2B) of the Protection from Eviction Act 1977. The construction adopted in Mohammed v Manek and confirmed in Desnousse remained binding. The temporary character of the accommodation and the statutory homelessness scheme were decisive. Section 5(1A) of the 1977 Act was to be given the same meaning, so its notice requirements did not apply to this accommodation.
3. Article 8 did not require possession proceedings before eviction from temporary licensed accommodation under sections 188 or 190(2). Manchester City Council v Pinnock established that a court must be able to assess proportionality and resolve relevant factual disputes where a person’s home is at risk, but it did not require a public authority always to commence possession proceedings. Judicial review could provide that assessment where an occupier raised an arguable Article 8 defence.
4. Proportionality had to be assessed by reference to the decision-making process as a whole. Advice and assistance, review rights under sections 202 and 203, appeal rights under section 204, possible continued accommodation, and judicial review were relevant safeguards. The threshold for an Article 8 defence was high. The State also enjoyed a wide margin of appreciation in housing policy, and requiring proceedings in every temporary-accommodation case would materially burden local authorities and reduce accommodation available to homeless families.
5. Patel v Pirabakaran concerned mixed-use premises and private forfeiture proceedings and was not inconsistent with the homelessness cases. Hounslow London Borough Council v Powell concerned section 193 accommodation and introductory tenancies, not temporary licences under sections 188 or 190(2), and was distinguished. The alternative argument concerning ownership and enforcement of possession rights under section 3(1) was left undecided. Permission to appeal to the Supreme Court was refused.

1. Court of Appeal (Civil Division): The conjoined appeal and claim were dismissed. The court held that the statutory and Convention arguments did not require possession proceedings before termination of the temporary accommodation. The first decision was reported as [2013] EWCA Civ 804 and the conjoined decision as [2013] EWCA Civ 805.
2. High Court, Administrative Court: Philip Mott QC, sitting as a Deputy High Court Judge, held on 12 July 2012 that he was bound by Desnousse, that the 1977 Act did not require a possession order, and that no Article 8 point arose on the facts. Permission to appeal was refused below but granted by the Court of Appeal.