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And no returns…

Merritt v Thurrock Council & Anor (2021) EW Misc 2 (CC)

A county court case of duelling injunction applications concerning Ms Merritt’s (re)occupation of what had been temporary accommodation arranged by Thurrock and managed by Midos Managment Co Ltd under section 188(3) Housing Act 1996. The primary issue was whether security of occupation was different under s.188(3) to that under s.188(1) – where the Supreme Court authority of R (N) v Lewisham LBC, R (H) v Newham LBC [2014] UKSC 62 (our note) applies.

Ms M had applied to Thurrock as homeless in October 218 and the full duty accepted in December 2018. She had been put in temporary accommodation under s.188(1), a private property managed by Midos, and then continued in the same accommodation under s.193. In July 2019, Thurrock told Ms M it had discharged the housing duty as she had refused an offer of suitable accommodation. A s.202 review of that decision was brought and Thurrock exercised its discretion to accommodate Ms M pending the review decision under s.188(3). The first review decision was withdrawn, and after a considerable period, in November 2020, a second review decision upheld the discharge of duty.

The local authority served a notice to quit upon Ms Merritt on 10 November 2020 notifying her that she was to give up possession of the property on 8 December 2020. By emailed letter dated 30 November 2020 the solicitors acting for Ms Merritt asked the local authority to exercise its discretion to provide suitable accommodation pending the appeal pursuant to section 204 of the HA 1996 against the decision on 2 November 2020 to uphold the decision that the main housing duty had been discharged. The local authority has a power to provide interim accommodation pending a section 204 appeal but no obligation to do so and in a detailed decision letter dated 3 December 2020 the local authority set out its reasoning for deciding to exercise its discretion by not providing interim accommodation. There has been no application to the Administrative Court of the High Court to judicially review that decision.

(Apparently there had not been a s.204A application to the county court or s.204 appeal at the time of this judgment either).

Midos emailed Ms M to tell her the property would be repossessed on 8 December and that she should vacate, though the actual date was 9 December. Ms M did not vacate. On 9 December, Ms M found that the locks to the property had been changed.

On 11 December, she returned to the property to try to collect belongings and found her back door key still worked. She re-occupied the property. Midos attempted to regain possession but the situation led to an interim injunction application by Ms M to restrain Midos from seeking possession other than in accordance with the Protection from Eviction Act 1977, and one by Midos to remove Ms M and restrain her from seeking to reoccupy.

For reasons that will remain a mystery, these applications in Romford weren’t heard by a Central London County Court CJ, but instead ended up in Chelmsford, but in these days of remote hearings, that was not so awful.

On her application, Ms M argued that s.188(3) accommodation was subject to section 3 Protection from Eviction Act 1977. Ms M was granted “exclusive possession of a self-contained residential property for a periodic weekly term and in consideration of a weekly payment of £145.39”, and therefore a ‘dwelling’ under s.3. Section 188(3) accommodation was distinct from s.188(1) accommodation and anything that the Supreme Court said about s.188(3) in R(N) v Lewisham was obiter.

This did not go very well.

For the reasons set out below, the Supreme Court decision of R (N) v Lewisham LBC, R (H) v Newham LBC [2014] UKSC 62, provides that a property provided by a local authority pursuant to the duty contained in section 188(1) of the HA 1996 is not a property let as a dwelling. While counsel for Ms Merritt contended that anything said about section 188(3) of the HA 1996 in R(N) v LB of Lewisham was not part of the ratio of the decision of the Supreme Court and is therefore obiter, in my judgment that is neither correct nor, if it were, would it be a reason in this case not to follow the reasoning of the Court. As I pointed out in the course of submissions, it would inevitably be a disincentive to all local authorities if a property provided in accordance with the discretionary power provided by section 188(3) of the HA 1996, required the local authority to obtain a court order before it could recover possession, when a property made available in accordance with the duty contained in section 188(1) of the HA 1996 did not enjoy the protection of section 3 of the 1977 Act. Further, there is no basis upon which it can be said that the same principles should not apply to section 188(3) as to section 188(1) of the HA 1996.

The s.188(3) power to accommodate pending review was discretionary, and likely, though not necessarily, for a period shorter than the s.188(1) accommodation pending s.184 decision. It could not be said to be ‘more significant at law’ than s.188(1) accommodation.

Further, Lord Hodge in R(N) v Lewisham had expressly addressed s.188(3) accommodation and held “accommodation pending a review does not make the property a home or a property “let as a dwelling””.

And the agreement entered into by Ms M was clearly headed as temporary accommodation and not creating a tenancy or stable accommodation.

There was no serious issue to be tried on Ms M’s application, so the interim injunction application failed.

Midos were granted their injunction. There was a good arguable claim for possession, and Ms M had re-entered, which was evidence of a need to restrain further re-entry. The stay on evictions did not apply, as this was not a CPR 55 eviction. However, given the pandemic, the enfocement of the injunction was suspended to 21 February 2021.

 

 

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.

3 Comments

  1. Niamh

    How does this fit with Dacorum Borough Council v Bucknall (aka Acheampong) [2017] EWHC 2094 (QB) I wonder ? Similar facts but different conclusion by the HC as to whether accommodation provided under s.193 continues to be ‘occupied as a dwelling’ after discharge of duty and unsuccessful s202 review.

    Reply
    • Suzie

      I feel that the difference between this case (Merritt v Thurrock) and DBC v Bucknall (aka Acheampong) is the nature of the property and residence at the time DBC served Notice to Quit and NOT the purpose for which the property was initially provided.
      DBC served NTQ and sought a court order, however, DBC was not able to obtain possession through the courts due to failure to include prescribed advise in their NTQ.
      It could be argued that the NTQ and the Court Order served on Ms Bucknall showed DBC’s intention for the occupation of the property to be more than a transient one and therefore may be considered to be “occupied as a dwelling” after discharge of full duty

      Reply
    • Giles Peaker

      Our note is here https://nearlylegal.co.uk/2017/08/dwelling-temporary-accommodation/
      The point simply wasn’t argued – no s.188(3) issue was raised. So not a ‘different conclusion’. But it is not at all clear from the appeal judgment when duty was discharged. It appears that the council treated Ms B’s letter refusing the offered property as a request for a review. No NTQ was served until about the conclusion of the review. In which case, it would have continued to be s.193 accommodation during the review.

      Reply

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