Doka v London Borough of Southwark [2017] EWCA Civ 1532

The issue in this second appeal was what amounts to ‘settled accommodation’, sufficient to break the chain of causation of intentional homelessness.

Mr D was homeless and in priority need. However, Southwark found he was intentionally homeless on the basis that his last settled accommodation was a secure tenancy from which he was evicted in 2010 due to rent arrears. This was upheld on review and a s.204 appeal.

After that eviction, Mr D

was allowed by his former employer, Mr Theobald, to stay at his home at 37 Capel Place, Dartford. Although this was originally intended to be a temporary arrangement, after about 3 weeks Mr Theobald agreed to provide what he described as “full-time accommodation” in the form of the room which had been occupied by Mr Theobald’s son who was by then at university. The information provided by Mr Doka’s solicitor on which the Council relied in making its decision was that Mr Theobald had taken a fatherly interest in Mr Doka’s welfare which led him to provide the accommodation in the form of his son’s room. Mr Doka was told that he would be able to live there until the son finished at university which would be a period of 2-3 years but he also agreed to stay elsewhere with friends on the occasional nights when Mr Theobald’s son returned home and needed to use his room. Mr Doka agreed to pay £500 per month for the use of the room.

In December 2012 Mr Doka was asked to leave because Mr Theobald’s son had returned from university and various refurbishment works were to be carried out. Between 2013 and October 2014 Mr Doka stayed with friends until, following the birth of his son, he applied to the respondent authority for housing assistance.

Mr D’s appeal was that the 2 year period between 2010 and 2012 amounted to settled accommodation.

That settled accommodation forms such a ‘break’ was held in Din v Wandsworth London Borough Council [1983] 1 AC 657, as approved by the House of Lords in R v London Borough of Brent ex parte Awua [1996] 1 AC 55.

The key case on what amounts to settled accommodation is Gilby v City of Westminster [2007] EWCA Civ 604. In particular, this passage at 9. of Gilby:

“For this purpose the distinction is between “settled” in the sense of reasonably secure or permanent accommodation and insecure accommodation in the sense of precarious, temporary or transient accommodation. The epithet “secure” connotes accommodation in respect of which there are solid grounds for the reasonable expectation of continuance of occupation for the foreseeable future or for a significant period of time. There is no legal requirement as to the form of or the label that designates the legal character of the occupation. What matters is whether as a matter of fact the required security is available. For the purpose of determining whether accommodation is secure it is relevant whether the occupation is under a lease or a licence, but the fact that occupation is under a lease or licence is in no way decisive. Relevant circumstances also include (amongst others) the terms of the lease or licence, whether the grantor of the lease or licence could lawfully grant it, the relationship between the lessor and licensee and the lessee and the licensee (e.g. parent and child or husband and wife or partners or employer and employee), the nature of the accommodation and the period for which the accommodation may be expected to continue and for which it has continued.”

Southwark’s review letter stated:

12. I have considered whether it could be argued that you willingly gave up your room to help your friend because he had been supportive of you. However, your representatives stated that, “Mr Theobald had a spare room as his son had gone to university and no longer needed the room apart from the occasional overnight visit when our client would stay elsewhere…”. I am of the opinion that this confirms that Mr Theobald’s need of the room for his son’s visits took priority over him allowing you to stay there, rather than you allowing the son to use your room. Therefore, I am not satisfied that your arrangement was a tenancy agreement or that you had exclusive use of a room as submitted by your representatives.
13. Secondly, by your representatives’ own statement, you were fully aware that your residence in Mr Theobald’s property was a temporary arrangement as they stated that “… so our client knew from the start that he would be able to stay for two to three years until his son finished his course”. This confirms that when you moved into 37 Capel Place you were fully aware that this was only ever going to be a temporary arrangement.

Mr D argued that while the arrangement was for a licence, it was for a significant period of time – two years – and so with a reasonable expectation that the occupation would continue for a significant period (as indeed, it did).

A private sector assured shorthold tenancy would be likely to be for a 6 month term. The court of appeal notes that Din was decided when Rent Act tenancies were the norm, and relies on R v Hackney LBC ex Ajayi (1998) 30 HLR 473 and Knight v Vale RBC [2003] EWCA Civ 1258; [2004] HLR 9 on the question of whether occupation even under an AST could be precarious, deciding that it could be if it was clearly not going to be renewed. At 18:

This and some of the earlier authorities confirm that the length of the period of accommodation relied on is not conclusive as to whether it should be treated as settled in the sense described in Din and the subsequent cases in which the test has been applied. What the applicant needs to establish is a period of occupation under either a licence or a tenancy which has at its outset or during its term a real prospect of continuation for a significant or indefinite period of time so that the applicant’s transition from his earlier accommodation cannot be said to have put him into a more precarious position than he previously enjoyed.

Further Huda v Redbridge LBC [2016] HLR 30 suggested that actual duration of occupation made no difference to the precariousness of the occupation.

So even though Mr D had been given – and had had – a two year period of occupation, this was not settled accommodation:

In this case, however, Mr Doka was able to rely on the generosity and friendship of Mr Theobald in order to put a roof over his head. Although that arrangement undoubtedly had a commercial aspect to it in that Mr Doka paid a not insignificant rent for his use of the room, the reviewing officer was in my view entitled to conclude that it was at all times a precarious arrangement in that it had a finite duration and was obviously one in which Mr Theobald would give priority to his son’s need for the room. Mr Doka was required (and was agreeable) to vacate the room for the days when the son came home and when he ended his studies at university. This was an intermittent licence under which the prospect of continuation was always uncertain.

Appeal dismissed.

Comment

This is, with all due respect, a very poor decision. The simple fact of assured shorthold tenancies is that no tenant can have any ‘real prospect’ of occupation for longer than the fixed term. And add to that that private sector discharge of full housing duty requires only a two year fixed term. (And the Homelessness Reduction Act 2017 will only require a 6 month tenancy for avoiding being ‘threatened with homelessness’.)

The Court of Appeal here sets a frankly ludicrous measure of ‘settled accommodation’, one that no private sector tenant could practically hope to meet. The only saving grace is that their position in the most recent tenancy would be no more precarious than the previous tenancies.

However, for someone who lost a secure or assured tenancy, the court of appeal’s decision would suggest that they can never have ‘settled accommodation’ sufficient to break the chain of causation again, as any PRS tenancy would be more precarious than a secure or assured tenancy. This is, frankly, ridiculous. It is also not what the prior case law says. Not even Knight v Vale.