Out of order

R (CN) v LB Lewisham; R (ZH) v Newham LBC [2013] EWCA Civ 804

This is a very important decision from the summer. For some reason we haven’t got round to writing it up before now. In the meantime England have managed to retain (yay) and then lose (boo) the Ashes, so it just goes to show that there are worse things in the world than tardy blog writers.

The issue in the two cases is neatly stated by Kitchin LJ at [2]:

“The central issue on this appeal is whether the decisions in Manek and Desnousse continue to bind this court in the light of the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186.”

(In addition to those citations, Kitchin LJ could have referred to this on Pinnock and this on Powell. Manek and Desnousse are before our time).

The Protection from Eviction Act 1977 provides that a landlord cannot recover possession of premises “let as a dwelling” or “occupied as a dwelling under a licence” without first getting a court order for possession (s.3). The 1977 Act also provides that a notice to quit a periodic tenancy of premises “let as a dwelling” or notice to determine a periodic licence “to occupy premises as a dwelling” must give at least 4 weeks’ notice and contain prescribed information (which is set out in the Notices to Quit etc Prescribed Information Regulations 1988.

In Mohamed v Manek & RB Kensington & Chelsea (1995) 27 HLR 439, the Court of Appeal held that where a local housing authority provides B&B accommodation to a homelessness applicant, while the authority carries out its enquiries to decide the extent of the duty owed under Pt 7, Housing Act 1996,* that accommodation is generally not let as a dwelling, so s.3, 1977 Act does not apply to it.

In Desnousse v LB Newham [2006] EWCA Civ 547; [2006] QB 831, the Court of Appeal was asked to reconsider Manek in light of the Human Rights Act 1998 having come into force. A majority of the Court of Appeal considered that Manek still applied.

As we all know, in Pinnock and Powell, the Supreme Court held that art.8 of the European Convention on Human Rights required the availability of a proportionality assessment of an eviction in a claim for possession brought by a public authority. In Powell, one of the occupiers was housed under Pt 7 duties, but this was under s.193(2) (the “full” housing duty).

In CN & ZH, the claimants argued that the Manek and Desnousse could no longer stand, given the Supreme Court decisions in Pinnock and Powell.

The brief facts of the two cases are that CN was born in August 1994. In 2011 his family were evicted for rent arrears. They applied to Lewisham for assistance. Lewisham placed them in temporary accommodation and then decided that they were intentionally homeless. Lewisham told them to leave the temporary accommodation. When challenged by the family’s solicitors, Lewisham said that they did not need to obtain a possession order before evicting them. Judicial review proceedings were launched, challenging Lewisham’s decision to evict without a court order. Although an interim injunction was granted, requiring Lewisham to continue to accommodate, the High Court then refused permission for JR. That was successfully appealed to the Court of Appeal, which decided to retain the substantive JR.

ZH was born in March 2012, just a few months after his mother had given up her tenancy in Liverpool and moved in with her sister and aunt in East London. In August 2012 the aunt asked her to leave and she then approached Newham for assistance. Newham placed her and her son in temporary accommodation and then decided that she had made herself intentionally homeless by giving up her tenancy. Newham told her that she had to leave the temporary accommodation. As with CN’s case, JR proceedings were issued challenging the decision to evict without a court order. An interim injunction was granted and this time the High Court granted permission for JR. The claim was transferred to the Court of Appeal, so that the two cases could be heard together.

The Court of Appeal (Moses, Kitchin & Floyd LJJ) dismissed the claims. The lead judgment is given by Kitchin LJ. Moses LJ adds a few words and Floyd LJ agrees with both of them.

Kitchin LJ said that Manek and Desnousse were still good law, notwithstanding Pinnock and Powell. Temporary accommodation under s.188 or s.190, 1996 Act, was to be treated differently to accommodation granted under the full housing duty contained in s.193: [75].

Although a proportionality assessment is, in principle, available, that could be achieved through a JR claim rather than forcing local authorities to bring possession proceedings in every case. Moses LJ cites R (JL) v Secretary of State for Defence [2012] EWHC 2216 (Admin) as an example of a proportionality assessment being conducted in JR (our note here, this decision was upheld by the Court of Appeal: [2013] EWCA Civ 449).

Nor did s.5, 1977 Act, apply so that the detailed requirements for NTQs needed to be followed. That provision only applied where a licence “to occupy premises as a dwelling” was involved. Manek had decided that temporary accommodation under s.188, 1996 Act, was not “occupied as a dwelling under a licence” for the purposes of s.3, 1977 Act. The language used in s.3 and s.5 was so similar that this meant that this sort of accommodation also did not fall within s.5: [77].

Counsel for the occupiers appears to have recognised that it was going to be tough to convince the Court of Appeal to take this step, so sought to persuade them that if they were going to dismiss these cases they should still grant permission to appeal to the Supreme Court. That did not convince the CA (see [83]).

The Court of Appeal decision will definitely not, however, be the last word on the matter – the Supreme Court has granted permission to appeal and has placed a stay on the CA’s order. Expect a hearing in the spring or early summer next year, with judgment probably after the summer vacation and a write-up here sometime in 2015…

* Actually, Manek considered the predecessor provisions to Pt 7, 1996 Act, which were contained in Housing Act 1985.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
Posted in Homeless, Housing law - All, Licences and occupiers, Possession.

4 Comments

  1. Hearing is June 2014. It may be joined with Simms v Dacorum if they get permission to the Supreme Court. Simms has legal aid for the appeal if permission is granted.

  2. I know this is currently being heard in the SC so my question may become academic but if accommodation provided under s188 is not classed as accommodation under s175 (therefore preventing someone being placed in temp and then being classed as not homeless – as per Alam v Tower Hamlets, Moran v Manchester etc) how can one then say someone in such accommodation cannot be evicted without 28 days NTQ and a court order?

  3. Appeals dismissed. No need to obtain a possession order, but (somewhat remarkably) the proportionality of eviction can be addressed in a s.204 appeal. More soon(ish), no doubt.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.