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

Temporary accommodation secured under Housing Act 1996, section 188 or section 190(2), is not generally 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 possession proceedings before terminating and recovering such accommodation. Article 8 does not impose that universal procedural requirement. An occupier may raise an arguable proportionality challenge in judicial review, where the court can assess proportionality and resolve relevant factual disputes. The decision-making process must be considered as a whole, including advice, review, appeal and other safeguards. The same construction applies to the notice requirements in section 5(1A) of the 1977 Act.

CN and ZH were children living with their mothers in temporary accommodation secured by local housing authorities under section 188(1) of the Housing Act 1996, pending homelessness inquiries. The authorities later decided that the mothers had become intentionally homeless and gave notice terminating the temporary accommodation. The claimants sought judicial review and injunctions, contending that the authorities could not evict without possession proceedings under the Protection from Eviction Act 1977, construed compatibly with Article 8 of the Convention.

The Deputy High Court Judge considered himself bound by Desnousse v Newham London Borough Council [2006] EWCA Civ 547 and refused relief. The appeals were heard together. The central issue was whether Mohammed v Manek and Desnousse remained binding after Manchester City Council v Pinnock and Hounslow London Borough Council v Powell.

The Court of Appeal unanimously dismissed both claims. Kitchin LJ gave the principal judgment, with Floyd and Moses LJJ agreeing.

1. Binding construction. Mohammed v Manek established that temporary accommodation provided under the interim homelessness duty is not, as a general rule, premises occupied as a dwelling under a licence within section 3(2B) of the Protection from Eviction Act 1977. Desnousse v Newham London Borough Council confirmed that construction under the 1996 Act and held that Article 8 did not require the 1977 Act’s procedural safeguards in such cases. The authorities remained binding.
2. Effect of Article 8. Pinnock required a court to be able to assess the proportionality of evicting a person from a home and to resolve relevant factual disputes, but it did not require a public authority always to issue possession proceedings. Proportionality ordinarily arises only where raised by the occupier. Judicial review can provide the necessary assessment in an appropriate case.
3. Decision-making process and margin. The court must consider the process as a whole. The advice and assistance duties, review and appeal rights, possible continued accommodation and judicial review provide significant safeguards. The State also has a wide margin of appreciation in housing policy. Requiring possession proceedings in every temporary-accommodation case would impose a substantial burden and seriously reduce the accommodation available to homeless applicants.
4. Notice requirements. Section 5(1A) of the 1977 Act, concerning notice for determining a periodic licence, had the same relevant meaning and did not apply to temporary accommodation provided under section 188(1).
5. The court left open whether either authority was the owner entitled to possession under section 8(3), since that issue was unnecessary to decide. Permission to appeal to the Supreme Court was refused.

1. Court of Appeal (Civil Division): The claims were dismissed. The court upheld the Deputy High Court Judge’s conclusion that the authorities were not required to obtain possession orders before terminating the temporary licences. [2013] EWCA Civ 805