R v London Borough of Newham and London Borough of Lewisham

Interim accommodation secured by a local housing authority under section 188 of the Housing Act 1996 is not licensed “as a dwelling” for section 3 of the Protection from Eviction Act 1977 where its day-to-day or nightly occupation remains referable to the transient statutory purpose. The authority need not obtain a possession order when its duty ends.

Article 8 does not impose a universal requirement for possession proceedings. It requires a fair procedure through which the occupier can raise proportionality before an independent tribunal. Statutory review, a section 204 appeal interpreted as permitting determination of proportionality and disputed facts, and judicial review provide sufficient safeguards. Recovery of interim accommodation to meet other homelessness claims will generally be proportionate.

The mothers of CN and ZH received temporary accommodation under section 188 of the Housing Act 1996 while the respondent authorities investigated their homelessness applications. After adverse decisions, the authorities proposed to recover the accommodation without possession orders. The appellants sought judicial review, contending that the Protection from Eviction Act 1977 required court orders and that eviction without proceedings violated article 8 of the European Convention on Human Rights.

The Court of Appeal retained CN’s claim, received ZH’s transferred claim and dismissed both in [2013] EWCA Civ 804 and 805. The appeals raised two questions: whether the accommodation was occupied “as a dwelling” within section 3 of the 1977 Act, and whether article 8 invariably required possession proceedings before eviction.

1. Disposition. The appeals were dismissed by a majority of five to two. Lord Hodge delivered the leading judgment, with which Lord Wilson, Lord Clarke and Lord Toulson agreed. Lord Carnwath also agreed that both appeals should be dismissed.
2. The purpose of a licence is assessed objectively from its terms and factual and statutory context. Its purpose ordinarily remains that for which it was granted unless a later agreement changes the legal basis of occupation. “Dwelling” is an ordinary, context-sensitive word. In the statutory setting considered here, it generally connotes the provision of a home and a greater degree of settled occupation than residence.
3. Accommodation secured under section 188 of the Housing Act 1996 is a transient stopgap pending a homelessness decision. The authority may move an applicant at short notice, and the applicant remains homeless while occupying accommodation properly referable to that duty. Day-to-day or nightly licences granted for this purpose are therefore not licences to occupy “as a dwelling” under section 3 of the Protection from Eviction Act 1977. The same reasoning extends to comparable temporary accommodation under sections 188(3), 190(2), 200(1) and 204(4).
4. The express exclusions in section 3A of the 1977 Act do not imply that every other residential licence falls within section 3. Several exclusions confirm the established limits of “dwelling” or remove arrangements capable of prolonged, settled occupation. The absence of an exclusion for section 188 accommodation therefore does not bring it within the Act.
5. Assuming article 8 was engaged, its procedural guarantee required a fair opportunity to raise proportionality before an independent tribunal. It did not invariably require the landlord to obtain a possession order. The decision-making process had to be considered as a whole.
6. The safeguards under the 1996 Act were sufficient. They included reasons, reasonable notice, advice and assistance, review, a section 204 appeal and judicial review. Section 204 was to be interpreted as empowering the county court to determine a properly raised proportionality issue and any relevant factual dispute. Recovery was lawful, pursued legitimate aims and was proportionate because scarce accommodation had to remain available for applicants whose claims were awaiting decision.
7. Lord Carnwath added that settled practice can aid construction where statutory language is ambiguous and an authoritative lower-court interpretation has governed arrangements for a significant period without serious injustice. Lord Neuberger and Lady Hale dissented on the first issue. They considered that short-term or precarious occupation of a family’s only habitation could still be occupation “as a dwelling”, so that sections 3 and 5 of the 1977 Act applied. Lord Neuberger agreed with the majority’s article 8 conclusion on its premise; Lady Hale considered that issue did not arise.

• United Kingdom Supreme Court: Dismissed both appeals by a majority of five to two and affirmed the Court of Appeal’s result.
• Court of Appeal: Dismissed the conjoined judicial review claims in [2013] EWCA Civ 804 and 805. Davis LJ had granted CN permission and retained his claim in that court. Sales J granted ZH permission and transferred his claim there.
• Permission stage: CN was initially refused permission to seek judicial review before Davis LJ granted permission on appeal. ZH received permission from Sales J.