In Wandsworth LBC v Tompkins [2015] EWCA Civ 846, Wandsworth had purported to grant Mr and Mrs Tompkins an introductory tenancy of a property; only, as the Court of Appeal found, it wasn’t an IT because it couldn’t be.  Mr and Mrs Tompkins had made a homelessness application.  There was some toing and froing on the decision.  While Wandsworth were considering the question of intentionality, they offered alternative temporary accommodation to Mr and Mrs Tompkins.  When they went to sign up for it, they were offered and signed up for an introductory tenancy.   Their legal advisors properly advised them that now they had an IT of a property they should withdraw their homelessness application and wrote to Wandsworth accordingly; Wandsworth responded that the IT form had been used in error.  Rather than simply determining the IT during the relevant period, they brought proceedings for possession one day too late.  They amended the claim form to plead that the tenancy was incapable of taking effect as an introductory tenancy.

This mess of Wandsworth’s making gave rise to a rather difficult problem for them.  Although not mentioned in the judgment (but apparently the subject of argument before the court), Birmingham CC v Qasim would suggest that an ultra vires allocation of accommodation would still create a secure (or introductory) tenancy because of the inherent separation between allocation and grant.  That was also, perhaps not surprisingly, Mr and Mrs Tompkins’ position – that they had been granted an IT by way of a Part 6 allocation.  One might also have argued that Wandsworth themselves were estopped from denying that the tenancy was an IT (although I guess that would be met with the same argument of illegality – see, for example, Yaxley v Gotts).

Patten LJ said that what had been created was clearly a tenancy and Wandsworth did not argue that they had contracted for a non-secure tenancy.  But they did argue that its effect depended on the statutory provisions which govern it.  This argument depended on the fact that the tenancy was granted pursuant to a Part 7, Housing Act 1996 (ie homelessness) function because they were still considering the question of intentionality.  As a result of Schedule 1, Para 4, Housing Act 1985 could not be a secure tenancy.

In deciding in Wandsworth’s favour, Patten LJ said that Mr and Mrs Tompkins’ argument “concentrates on the form rather than the circumstances of the grant” ([30]) and it assumed the very thing which had to be established ([24]).  That the wrong tenancy form was used did not alter the statutory function under which the tenancy was granted.  The tenancy was granted under s. 188, Housing Act 1996 as interim accommodation pending a decision as to intentionality.    Further, there was no notification that it was to be a secure tenancy, just an acknowledgement by Mr and Mrs Tompkins of the effect of the IT provisions in the 1996 Act that made this matter different from Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202.

So, all-in-all, this was not a hugely satisfactory case from anybody’s point of view.  Wandsworth’s carelessness led to the initiall error and inexorably to the CA; Mr and Mrs Tompkins’ occupation status was left in doubt for a considerable time and can’t have been helpful to them; and, I’m not that convinced that Patten LJ was right in the way that he distinguished Qasim – after all, if one concentrated on the circumstances of the grant in those cases, the form of tenancy would have been unlawful.  The key distinction, though, is the prohibition on granting a secure tenancy to a person seeking homelessness assistance.