Mohamed v London Borough of Barnet

Paragraph 6(b) of Schedule 1 to the Housing Act 1985 creates an exception to security of tenure for short-term accommodation arrangements. Its construction depends on whether the head arrangement is for a fixed or indeterminate period. For a fixed-term arrangement, the lessor must be able to obtain vacant possession both when the term expires and when required. For a periodic or indeterminate arrangement, a provision permitting termination on notice when required is sufficient. A notice period does not itself constitute a specified period for these purposes. The Court of Appeal decisions in London Borough of Tower Hamlets v Abdi and Haringey LBC v Hickey were therefore reconcilable.

The applicant occupied temporary accommodation provided by the respondent local authority pursuant to duties under the Children Act 1989. The accommodation had been leased by the Council from a private provider under an arrangement initially lasting 12 months and thereafter continuing monthly. The Council served a notice to quit and commenced possession proceedings.

Following a preliminary trial, HHJ Luba QC held that the arrangement fell within paragraph 6 of Schedule 1 to the Housing Act 1985 and did not attract security of tenure. The applicant appealed. The central issue was whether paragraph 6(b) required a single provision permitting vacant possession both at the end of a specified period and when required, or whether termination when required was sufficient for a periodic arrangement.

1. The appeal was dismissed. The agreement fell within paragraph 6(b) of Schedule 1 to the Housing Act 1985, so the applicant had no security of tenure.

2. The court was required to construe paragraph 6(b) in its statutory context and to follow the ratio of binding Court of Appeal decisions. Statements which were obiter could be persuasive but were not binding. London Borough of Tower Hamlets v Abdi and Haringey LBC v Hickey had to be read in the light of their facts and together.

3. Hickey concerned a fixed-term head lease. It established, on the facts considered there, the need for provision enabling the lessor to obtain possession at the end of the term and when required. Abdi concerned an indeterminate arrangement and treated termination on notice as provision for possession when required. The authorities were reconcilable.

4. In paragraph 6(b), “a specified period” referred to the period for which the accommodation was provided under the head arrangement, ordinarily a fixed or determinate term. It did not refer to the notice period specified in a clause allowing termination when required.

5. The head arrangement was periodic by the time the applicant took occupation. The provision allowing the private provider to obtain possession on not less than 14 days’ notice was materially equivalent to the seven-day notice provision in Abdi. It was therefore sufficient to satisfy paragraph 6(b). The provision for termination on notice necessarily proceeded on the basis that vacant possession would be given when the notice expired.

1. High Court (Queen's Bench Division) — Appeal from the preliminary decision of HHJ Luba QC in the Central London County Court. The appeal was dismissed.