R (CN) v Lewisham LBC

The Supreme Court, by a majority, dismissed the appeals. The court held that temporary interim accommodation provided by a local housing authority under section 188 of the Housing Act 1996 is not, in ordinary statutory language, provided "as a dwelling" for the purposes of sections 3 and 5 of the Protection from Eviction Act 1977 where the licence is day-to-day or nightly, transient in purpose and properly referable to the authority's short-term statutory duty. The court also held that, even where article 8 of the European Convention on Human Rights is engaged, the procedural safeguards within the homelessness regime (written reasons, review under section 202, appeal to the county court under section 204 and other statutory and Children Act processes) provide sufficient protection and that article 8 does not require an automatic requirement that a court order be obtained before repossession of such interim accommodation.

Background and parties

The appeals arose from judicial review claims by two homeless families (ZH and CN), challenging the lawfulness of eviction from interim accommodation provided by local housing authorities (Newham and Lewisham) without a prior court order. The claimants sought declarations and relief premised on the Protection from Eviction Act 1977 and on article 8 ECHR.

Procedural history

• CN obtained permission to bring judicial review and the claim was retained for appeal to the Court of Appeal (permission granted by Davis LJ on 23 November 2012).
• ZH obtained permission from Sales J (9 May 2013) and the two cases were heard together in the Court of Appeal which dismissed the claims ([2013] EWCA Civ 804 and 805).
• The appeals to the Supreme Court were heard in June 2014 and decided 12 November 2014.

Nature of the claims / relief sought

• (i) a legal ruling that the Protection from Eviction Act 1977 required a court order before occupancy secured under section 188 Housing Act 1996 (interim accommodation) could be repossessed, and
• (ii) that eviction without such an order violated article 8 ECHR.

Issues framed

1. Whether interim accommodation provided under section 188 (and analogous interim provisions) is "premises occupied as a dwelling under a licence" within the meaning of section 3(2B) PEA 1977, thereby attracting the Act's requirement of 28 days' notice and a court order for repossession;
2. Whether a public authority (or eviction carried out at its instigation) that permits repossession without a court order infringes article 8 and, if so, whether more invasive procedural safeguards (a mandatory prior court order) are required.

Court’s reasoning

• The majority analysed the statutory language of PEA 1977 and the Housing Act 1996, relevant precedent and statutory purpose. It concluded that the statutory context of section 188 — a short-term, low-threshold duty to secure accommodation pending inquiries, often provided on a nightly or day-to-day basis and capable of relocation — meant that such licences are not ordinarily licences "for occupation as a dwelling" within PEA 1977.
• The majority emphasised that the licensing arrangement must be construed against the background and purpose of the homelessness legislation; requiring courts to be involved in every repossession of interim accommodation would frustrate the homelessness scheme and tie up scarce housing resources.
• On article 8 ECHR the majority proceeded on the basis that article 8 was engaged but held that the combined procedures available under the 1996 Act (written reasons, review under section 202, appeal under section 204), children’s services assessments and judicial review provided independent and effective safeguards. The court held these procedures gave the occupier an opportunity to raise proportionality and factual disputes before an independent tribunal so that a further mandatory requirement for a court order prior to eviction was unnecessary in the ordinary case.
• Two members of the court (Lord Neuberger and Lady Hale) dissented on the first issue: they considered the ordinary meaning of "dwelling" wide enough to include interim accommodation provided under section 188 where the occupier in fact lives there as their only home, and would have required the Protection from Eviction Act protections to apply; they agreed with the majority on the article 8 point.

Appeal dismissed. The majority held that interim accommodation provided under section 188 of the Housing Act 1996, on day-to-day or nightly licences properly referable to the authority’s short-term statutory duty, is not ordinarily "occupied as a dwelling under a licence" for the purposes of sections 3 and 5 of the Protection from Eviction Act 1977; and that existing statutory review and appeal procedures together with other safeguards satisfy the procedural requirements of article 8 ECHR so as not to require a mandatory prior court order in the ordinary case.

Permission to apply for judicial review: CN (refused initially, permission granted and retained for Court of Appeal by Davis LJ 23 Nov 2012); ZH (permission granted by Sales J 9 May 2013). The two cases were heard together in the Court of Appeal and dismissed ([2013] EWCA Civ 804 and 805). Appeal to the Supreme Court: [2014] UKSC 62 (judgment 12 Nov 2014).