Paragraph 71

One of life’s great pleasures is watching a good film with Bill Nighy in it. One of my recent favourites is a film called Page Eight. A housing law blog isn’t really the time or the place to review the film (you have the link to imdb if interested), but there is a cracking line in it when Bill Nighy’s character is at a meeting with Michael Gambon, Judy Davis and Saskia Reeves and they are discussing the implications of what we come to find is a particularly damaging piece of intelligence. During the scene Bill Nighy says “Has anyone actually read this thing? I don’t mean cast your eye over it. I mean read it.” Obviously Michael Gambon has read it, but the rest haven’t. Bill then refers them to the bottom of page eight and reads it out. The mood changes, the minute taker is asked to leave and looks of shock, foreboding and aprehension pass over everyone’s faces.

Now you might be wondering at this point what has this got to do with housing law and isn’t this a rather odd way to start a blog that concerns the recent Supreme Court case of R (CN & ZH) v Lewisham LBC and Newham LBC [2014] UKSC 62. It seems apt, however, because this week I have had a couple of similar conversations (unfortunately not with Bill or Michael) about CN. It turned out a few people had only cast their eye over it rather than actually read it and I found myself directing them to paragraph 71 and, while these conversations were not being minuted, my colleagues had similar reactions. We’ll come to the rest of the judgment in due course but I thought I’d get this bit out of the way first:

“[71]…   Sixthly, the decisions of this court in 2011, in Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, extended the powers of the county court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 or 202 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authority’s decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. …”

I am told by counsel involved that this proposal was not canvassed by either party to the appeal and this development has therefore arisen without being argued and no written submissions were invited on its implications. Therefore the Supreme Court were not told about what issues may arise from this proposal. Just a few questions spring to mind. First, does this mean every dispute of fact? Or just the facts that are relevant to the proportionality of the eviction? If the latter, then where is the line drawn? Surely every fact will be relevant because the applicant is going to be evicted if they aren’t owed a duty so that must mean that any fact that is relevant to whether a duty is owed must be in play? Second, does this change the law on s.188(3) and s.204(4) too? Third, presumably JR will be the option if the eviction is to take place before the s.204 appeal? But how will we know if someone is going to be evicted before the s.204 grounds are settled? Presumably, they have to be drafted and then amended if the eviction takes place first? Or can we JR and ask for the eviction to be adjourned pending the s.204 appeal? (A reverse Cochrane?)

Obviously, the Court of Appeal (perhaps even the Supreme Court again) are going to have work out what all this means. Especially, as there are a number of House of Lords and Court of Appeal decisions over a period of 30 years that have said the exact opposite. One would have thought they would need to be considered?  Until then expect a lot of confusion and adjourned s.204 appeals.

Anyway, back to the judgment. ZH and CN were the children of applicants for accommodation under Housing Act 1996 Part 7. Both had been placed in temporary accommodation by the authorities they had applied to under Housing Act 1996 188(1). The accommodation they occupied was governed by licence agreements that allowed the authority to terminate such agreements on a day’s notice and without the need for a court order. Both were required to leave their accommodation after the authorities decided that they were not under owed a duty under Housing Act 1996 s193(2). Both applicants unsuccessfully judicially reviewed these decisions in the Court of Appeal on the basis that they occupied their accommodation as a dwelling and as a result the authorities were required to obtain a court order in accordance with Protection from Eviction Act 1977.;alternatively, Article 8 required the authority to obtain a possession order before an eviction. They appealed to the Supreme Court.

The Supreme Court dismissed the appeal (5-2; Lord Neuberger and Lady Hale giving strong dissenting judgments). The word “dwelling” as a general rule suggests a more settled occupation than “residence” and is to be equated with a person’s home. It also had to be construed by considering the purpose of the licence and the statutory context in which the accommodation had been provided, i.e. under the Housing Act 1996 Part 7 where temporary accommodation provided under s.188(1) does not prevent an applicant from being homeless, was not intended to last more than a month or so and an authority is free to move the applicant to another location. In this case, it was relevant that the license was expressed to be a day-to-day or nightly licence which recognised that the authority may require the applicant to transfer to alternative accommodation at short notice. Finally, the requirement to obtain a court order before evicting someone from such accommodation would significantly hamper the operation by the authorities of the statutory scheme under Housing Act 1996. An authority would not be able to transfer an applicant from one location to another without either his or her consent or, alternatively, there was little purpose in requiring court proceedings to recover possession because it is difficult to see what a homeless person could advance as a defence to the application where s/he can challenge a decision, that she is not entitled to accommodation under s.193(2), by way of review and appeal to the court.

The second issue was dealt with by para.71. Additionally, judicial review – with a fact finding jursidiction- also meant that the procedural requirements of Article 8 could be complied with. That meant there was no obligation for a court order.

Neither Lady Hale nor Lord Neuberger were terribly impressed with the majority finding it hard to find any meaningful difference between a person’s dwelling and residence (it being accepted that temporary accommodation was a residence) and that the only authority that was of any real relevance (Uratemp) appeared to support this view. They were also of the view that the fact that someone was not homeless within the meaning of Part 7 had no bearing whatsoever on whether the accommodation was their dwelling.

This has probably laid the main point to rest (it having been argued in the Court of Appeal twice before). I’d imagine that Strasbourg will probably not be too concerned by it either when para.71 is cited to them. I would recommend, however, reading Lord Neuberger and Lady Hale’s judgments just so you too can wonder how the other five didn’t agree with them.

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.
Posted in Housing law - All.

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