When is a dwelling not a dwelling? When it is temporary accommodation under homelessness legislation. And is a possession order needed to evict those occupying such temporary accommodation? No.

Such was apparent from a majority of the Supreme Court on 12 November in R (ZH and CN) v London Boroughs of Newham and Lewisham [2014] UKSC 62. Lord Hodge (with whom lords Wilson, Clarke and Toulson agreed) gave the main judgment. Lord Carnwath gave a concurring judgment. Lord Neuberger and Lady Hale gave dissenting judgments.

As Lord Hodge indicated, the issues were: (i) whether the Protection from Eviction Act 1977 (PEA) requires a local housing authority to obtain a court order before taking possession of interim accommodation provided to an apparently homeless person while the authority investigated whether it owed that person a duty under part VII of the Housing Act 1996; and (ii) whether a public authority which, without first obtaining a court order for possession, evicts such a person on cessation of its statutory duty to provide such interim accommodation, violates that person’s rights under article 8 of the European Convention on Human Rights.

Background

Part VII of the 1996 act covers homelessness. As Lord Hodge explained, when an applicant applies for accommodation or assistance in obtaining accommodation under section 183 of the 1996 act (per section 184), the local housing authority carries out inquiries to satisfy itself whether the applicant is eligible for assistance and, if so, what if any duty is owed.

Of ‘central importance’ in the instant matter was the interim duty to accommodate under section 188. For (under section 188(1)) if the housing authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, it shall ‘secure that accommodation is available for his occupation’ pending a decision as to any duty owed to the applicant under part VII of the 1996 act. The authority’s duty ceases (under section 188(3)) when its decision is notified to the applicant even if the applicant requests review of the decision under section 202. However, the authority may secure for the applicant availability of accommodation pending a review decision.

The case concerned children of families provided with section 188 accommodation while their housing applications were considered. Both substantive housing applications were refused and the families were told to vacate the properties. In judicial review proceedings challenging the evictions the appellants argued that, even after the cessation of the section 188 duty, they could not be lawfully evicted from temporary accommodation without the notice and court order required by the PEA.

Section 3(1) of the PEA provides that where ‘any premises have been let as a dwelling which is neither a statutory protected tenancy nor…’ (emphasis added) (per section 3A) ‘… an excluded tenancy’ and the occupier continues to reside in the premises after the tenancy has terminated, ‘it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises’. By section 3(2B) these provisions also apply to licences. Although, as indicated, section 3A lists tenancies and licences excluded from protection, there is ‘no general exclusion in section 3A of accommodation provided under part VII of the 1996 act or in particular under section 188 of that act’.

So if PEA applies, 28 days’ notice and a court order are required to regain possession of the premises. Under these circumstances, Lord Hodge said, ‘it is likely that, in uncontested proceedings, a local authority might often have to wait several months to recover possession of a property provided as interim accommodation’.

Majority view

Lord Hodge said that the first issue is whether the temporary accommodation premises afforded under section 188 were ‘licensed for occupation as a dwelling’ (emphasis added). He referred to the observations of Lord Millett in Uratemp Ventures Ltd v Collins [2002] 1 AC 301 who, after indicating that the ‘words “dwell” and “dwelling” are not terms of art with a specialised legal meaning’, said that they ‘suggest a greater degree of settled occupation than “reside” and “residence”, connoting the place where the occupier habitually sleeps and usually eats…’. Lord Hodge agreed that ‘“dwelling” suggests a greater degree of settled occupation than “residence”’ and the licences in question were ‘consistent with the limited and short-term nature of the authority’s duty’.

In Lord Hodge’s view the features militating against such licences enabling occupation of premises ‘as a dwelling’ include: (i) the statutory context of 1996 act licences being short-term accommodation pending substantive decision; (ii) consistent with that, each licence is day to day or nightly, enabling transfer at short notice to alternative accommodation; and (iii) although policy considerations are not by themselves determinative, imposition of PEA requirements ‘would significantly hamper’ authorities’ operation of the statutory scheme.

Regarding excluded tenancies in section 3A of PEA, these were not in his view exhaustive, but rather parliament confirming the scope of statutory protection rather than altering the concept of ‘dwelling’.

As to the second issue, article 8 is a qualified right. Its exercise cannot be interfered with other than in accordance with the law and necessity in a democratic society for (among other things) the protection of the rights and freedoms of others. Lord Hodge said that the licence terminations in question were in accordance with the law and in pursuit of (among others) the legitimate aim of making the accommodation available to other applicants entitled to benefit from interim homelessness accommodation.  

Furthermore, in Lord Hodge’s view ‘recovery of possession is proportionate to the aim being pursued and therefore ‘necessary in a democratic society’ under article 8. For it is ‘well known that authorities have limited resources to provide accommodation to individuals who claim to be homeless and in priority need’. And there can generally be no justification for preferring those whose claims have been investigated and rejected over those still subject to inquiry under section 184. There are also sufficient procedural safeguards including: written notice of the reasons for an adverse section 184 decision; the right to review of the decision; the court’s ability to assess the proportionality of a proposed eviction; and safeguards under section 17 of the Children Act 1989 ‘to promote the welfare of children in need’.

Lord Carnwath said that the ‘settled practice principle’ would be an additional reason for dismissing the appeal.

Minority views

Lord Neuberger said that ‘one should lean in favour of a wide, rather than a narrow, meaning when it comes to deciding the ambit of these sections’ which ‘reflect a policy that people who have been lawfully living in premises should not be summarily evicted’. And while his conclusion would ‘inevitably increase the pressure on already hard-pressed housing authorities’ this would be ‘more of an exacerbating nuisance rather than a far-reaching disaster’. He considered that it is particularly difficult to justify dismissing the appeal on policy grounds given (among other things) that this ‘involves departing from the natural meaning of the relevant statutory words’.

Lady Hale had ‘little doubt that the premises in each case constituted a “dwelling house”’. She agreed with Lord Neuberger that ‘a person can dwell, reside or live in premises where his occupation is not only temporary but precarious in the extreme’. And while this view would indeed make life more difficult for housing authorities ‘this would not by itself be determinative’.

Comment

The majority view may be regarded as pragmatic, and ‘hard-pressed’ housing authorities across the land will be very grateful that this analysis prevailed.

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