Dwelling in temporary accommodation

Dacorum Borough Council v Bucknall (aka Acheampong) [2017] EWHC 2094 (QB)

When is temporary accommodation provided under the Housing Act 1996 Section 193(2) duty occupied ‘as a dwelling’ fo the purposes of Section 3 Protection from Eviction Act 1977?

We know from R (N) v Lewisham London Borough Council [2015] AC 1259 (our report) that section 188 temporary accommodation (prior to s.184 decision), is not ‘occupied as a dwelling’. However, this appears to have confused Dacorum BC (and indeed the Judge at first instance).

Ms B was in temporary accommodation provided by Dacorum BC. Initially, this was under s.188, but, following a s.184 decision that the full housing duty was owed, the accommodation continued under s.193(2). No new licence agreement was issued, but Dacorum wrote to Ms B that she:

“would be offered suitable private sector accommodation but that there was a low supply of such accommodation available to the Council, with many competing demands, and that it was not possible to make an accurate prediction of when such an offer would be made; in the meantime she should continue to pay the charges and abide by the conditions of her agreement to occupy the “temporary accommodation you will be provided with”.

Some 6 weeks later, the Council offered Ms B a permanent property. She declined it as unsuitable by reason of her sight problems. This was treated as a review request. The review upheld the property as suitable and Dacorum discharged duty.

Dacorum served a notice to quit and then brought possession proceedings for the temporary accommodation. The notice to quit did not comply with the requirements of Section 5 Protection from Eviction Act 1977 (it apparently omitted the prescribed wording set out in The Notices to Quit etc. (Prescribed Information) Regulations 1988).

At first instance hearing of the ensuing possession claim, the Judge

referred to R(N) v Lewisham and quoted the headnote. He said that in accordance with that guidance he had taken particular note of the purpose of the written licence granted to Ms Bucknall when she was first accommodated in the Property. He set out the terms of that licence which made clear that it was temporary interim accommodation provided whilst the Council were making inquiries as to whether she was eligible under Part VII of the 1996 Act; that it was excluded from the PEA; and that she might be required to move to alternative accommodation at any time and without notice. He held that when the Council sent the letter of 18 September 2014 nothing had changed in the nature or status of her occupation of the Property; it remained interim accommodation provided to her under s. 188 and was not provided as a dwelling. Its nature did not change merely because the Council had accepted that it had a full housing duty under s. 193.

On appeal, the High Court had little trouble with finding that this was in error. The accommodation was clearly being provided under s.193(2). The s.188 duty ended at the point of s.184 decision. (At 27 & 28):

Mr Hutchings submitted that it was the settled understanding amongst practitioners that acceptance of an offer of temporary accommodation falling within subsection (5) of the 1996 Act never discharges the full housing duty, and drew my attention to the judgment of Lewis J in R (Brooks) v Islington London Borough Council [2016] PTSR 389 at [41] and that of Moses J in R v Brent London Borough Council ex parte Sadiq (2001) 33 HLR at [36]. Mr Vanhegan agreed with this proposition. Whilst I have some reservations as to whether it is correct, it is not necessary to decide the point in this case and I will assume that acceptance of accommodation falling within subsection (5) never brings the full housing duty to an end. What matters for present purposes, however, is that the duty may be being performed whilst continuing to exist, as Baroness Hale made clear in Aweys at [42].

It follows from the above analysis that when the Council offered Ms Bucknall the opportunity to continue to reside at the Property on 18 September 2014 pending any offer of alternative accommodation, and she accepted by staying there, the Council was performing its full housing duty. It was suitable accommodation, albeit avowedly temporary. It was for what was averred to be an indefinite but potentially lengthy period of time, and not such as to threaten homelessness.

However, the court went further. There remained the issue of whether the s.193 accommodation was ‘occupied as a dwelling’. Despite both parties agreeing that s.193 accommodation would be a dwelling, the court found that this was not necessarily so (paras 40 & 41)

This is a conclusion which depends upon the terms of the offer in the 18 September 2014 letter and the continued occupation. I do not accept Mr Vanhegan’s submission, conceded by Mr Hutchings, that if accommodation is being provided pursuant to the full housing duty it is automatically to be treated as occupied as a dwelling. In her dissenting judgement in R (N) v Lewisham, Baroness Hale expressed puzzlement that that appeared to be the generally accepted view. She rejected the notion that merely because the duty had changed, the purpose for which the accommodation was occupied must necessarily change. She treated the apparent consensus in relation to the full housing duty as supporting the view that accommodation pursuant to the interim housing duty was for occupation as a dwelling. In this she was in a minority, but the underlying premise is in my view sound: the change in the duty does not necessarily change the dwelling/non-dwelling status of occupation, which depends on the purpose of occupation, not the duty itself. If, for example, the local authority were to accompany the decision notification with an immediate offer of Part VI secure accommodation, which it would be reasonable for the applicant to accept within 7 days, I very much doubt that it could be said that continued occupation for 7 days would be occupation as a dwelling, notwithstanding that it would be being provided in performance of the s. 193 full housing duty. But it does not follow, as Mr Hutchings argued, that there can be no change of purpose in allowing the applicant to remain in the accommodation. Each case will be fact specific.

Mr Vanhegan argued that this would give rise to uncertainty. I doubt whether that need be so in practice, given that the critical factor will be the purpose for which the applicant is permitted to continue to occupy the property. This will depend primarily on the terms which will accompany the notification of the s. 184 decision, not the length of occupation which in fact continues thereafter. If the occupant is permitted to stay in the accommodation for an indefinite further period, that is likely to lead to the conclusion that the continued occupation is as a dwelling, notwithstanding any avowed intention by the local authority to offer him or her another property at some uncertain point in the future. If the occupier is told that he or she can stay in the property for the time being pursuant to the local authority’s acceptance that it must house them, they are justified in treating it as their home if they stay for more than a short period. It is the indefinite nature of the period of continued occupation offered which matters. It might be very lengthy, because it need not in fact be followed by an offer of other accommodation in order to fulfil the full housing duty, even if there is an avowed intention to do so. In such cases, the purpose of occupation has changed by reason of the terms offered following the s.184 decision because unlike occupation pursuant to the s. 188 duty, it is indefinite and is not to be brought to an end by the operation of the s. 184 investigation. That is what entitles the occupant to treat it as having the degree of settled residence as a home which makes it a “dwelling”.

In short, the question is not whether occupation is under s.193(2) per se, but whether the occupation is more than merely transient (Rogerson v Wigan Metropolitan Borough Council [2005] 2 All E R 1000 ). ‘Indefinite’ occupation will be more than merely transient.

Appeal allowed. Dacorum’s notice was not adequate and the possession claim failed.

Comment

While this caused a bit of a fuss amongst housing lawyers at first sight, on reflection I don’t think it is much of an issue. We had perhaps all assumed that s.193 accommodation would be occupied as a dwelling, as a matter of course. Yet the argument that very short term, transient accommodation may not be occupied as a dwelling of course makes sense. But in practice, it is highly unusual for s.193 accommodation to ever be for a specified very short period, and even if it is, it will be pretty unlikely to end up subject to  possession proceedings, as either the period will have since become indefinite (as surely any written provision for, say, a week, would become irrelevant on subsequent facts), or the homeless occupier moved to other accommodation.

Still, it is something else to factor in to dealing with possession claims for s.193 accommodation…

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All, Licences and occupiers, Possession.

2 Comments

  1. Is this important for other reasons:

    Suppose a person is owed the full housing duty and remains in their temporary accommodation (under s.193(2) HA 1996).

    The person then does something which entitles the council to terminate that duty under s.193(6) HA 1996 – for example rent arrears.

    If the temporary accommodation is classed as a dwelling, the council would then have to have a full court possession order to evict (under s.3 PEA 1977)

    In the case of rent, wouldn’t a court have the discretion to come to some arrangement about repaying the rent arrears rather than evicting? (I suppose the rent-arrears pre-action protocol would not apply to this type of accommodation).

    If so, eviction would not be automatic so it would be wrongful for a person to give up possession on the basis of the eviction notice alone?

    (Sorry, non-lawyer writing)

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