London Borough of Wandsworth v Tompkins & Anor

For a local authority operating an introductory-tenancy regime, the statutory character of a tenancy is determined by the function being exercised and by the Housing Acts, not by the tenancy form, description or parties’ intention. Accommodation provided while a homelessness application remains under investigation is granted pursuant to the interim duty under section 188 of the Housing Act 1996 and is a Part VII tenancy. Under Schedule 1 paragraph 4 of the Housing Act 1985, it is not secure unless the authority notifies the tenant that it is to be regarded as secure. Without that condition, it cannot take effect as an introductory tenancy under section 124. A tenant-signed acknowledgement that an introductory tenancy will become secure after a trial period is not such notification.

Mr and Mrs Tompkins were housed by the London Borough of Wandsworth while their homelessness application and the issue of intentional homelessness remained unresolved. The Council provided the property as temporary accommodation under its Part VII duties but used a form headed Grant of Introductory Tenancy. The County Court, sitting at Central London, declared that the tenancy was non-secure.

Mrs Tompkins appealed. The issues were whether the grant was instead a Part VI allocation, whether the tenancy certificate amounted to the statutory notification required for security, and what legal effect followed from the Council’s use of the introductory-tenancy form.

Appeal dismissed. The Court of Appeal unanimously upheld the declaration that the tenancy was non-secure.

1. Legal effect of the agreement. The agreement was effective to create a tenancy because it granted exclusive possession for rent. Its legal classification was nevertheless governed by the statutory scheme in the Housing Act 1996 and the Housing Act 1985, rather than by the form used, the parties’ description or their intention.
2. Function being exercised. The court had to identify the statutory function being performed when the tenancy was granted. The Council had not completed its homelessness inquiry, the homelessness application remained extant, and the accommodation had been offered as temporary accommodation under Part VII. The grant was therefore made pursuant to the continuing interim duty under section 188 of the Housing Act 1996, not as a Part VI allocation. A purported introductory-tenancy grant did not itself establish a Part VI allocation.
3. Security and introductory status. The landlord and tenant conditions for security were satisfied, but Schedule 1 paragraph 4 of the Housing Act 1985 separately excluded a tenancy granted pursuant to a Part VII homelessness function from being secure unless the authority notified the tenant that it was to be regarded as secure. Paragraph 1A did not displace paragraph 4. Following the approach in Westminster City Council v Boraliu [2007] EWCA Civ 1339, the Schedule 1 exceptions were mutually exclusive. The absence of the paragraph 4 notification meant that the tenancy could not take effect as an introductory tenancy under section 124.
4. Certificate of acceptance. The certificate was an acknowledgement by the tenants of the general statutory effect of an introductory tenancy. It was not a notification by the Council that the tenancy was to be regarded as secure. Its reference to the tenancy becoming secure after the trial period also did not provide the required notification of security at the date of grant.
5. Other authority and order. Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202 was distinguishable. It concerned an unambiguous statutory notice, read literally, which the landlord had power to serve. Those features were absent here. The tenancy was consequently non-secure and the appeal was dismissed.

1. Court of Appeal (Civil Division) — [2015] EWCA Civ 846. Appeal by Mrs Tompkins dismissed; the declaration that the tenancy was non-secure was upheld.
2. County Court sitting at Central London — HH Judge Lamb QC, 26 September 2014. Declaration that Mr and Mrs Tompkins held the property under a non-secure tenancy.