A question of authority – settled accommodation

Well now. I’m not sure what to make of this. The Supreme Court has refused permission to appeal in Doka v London Borough of Southwark. But…

Doka v Southwark concerned what could amount to ‘settled accommodation’ for homelessness matters, and specifically for ‘breaking the chain’ of intentional homelessness.

Our report on the Court of Appeal decision in Doka v London Borough of Southwark (2017) EWCA Civ 1532 is here. My comment to that judgment said:

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.

So you can take it that we weren’t impressed.

Doka sought permission from the Supreme Court, but permission has been refused. However it was refused in the following terms:

Permission to appeal be refused because the application does not raise an arguable point of law of general public importance which ought to be considered at this time and, because the applicable principles were authoritatively laid down in the cases of Din and Haile, this is not a case in which they should be reviewed even through there may be errors in the reasoning in the Court of Appeal, which should not be treated as authoritative.

So what is the Supreme Court saying? That the Court of Appeal in Doka should basically be ignored? If so, why and on what points? Where it differs to, or adds to Din and Haile? But which bits are properly regarded as doing that?

And then what is the status of a Supreme Court note to a refusal for permission to appeal? If someone cites and relies upon the Court of Appeal decision in Doka, what would be the status of citing the Supreme Court note to the refusal of permission?

If the Court of Appeal was wrong in such a way that its reasoning should not be considered to be authoritative, why has permission to appeal been refused?

This is making my head hurt. We will have to see what the circuit judges on section 204 appeals make of it.

 

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 and tagged , .

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