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What is a "dwelling"?

Supreme Court Main Entrance 03521C press office supplied  146x219Matt Hutchings and Nicola Margiotta discuss the recent Supreme Court decision on eviction from 'interim accommodation' provided under Part VII of the Housing Act 1996.

On 12 November 2014, the Supreme Court handed down judgment in the linked appeals of R(CN) v Lewisham LBC and R(ZH) v Newham LBC [2014] UKSC 62.

At the centre of these cases was section 3 of the Protection from Eviction Act 1977. The section requires landlords and licensors of dwellings to recover possession through court proceedings. This rule is subject to a list of specific exceptions in section 3A. For example, there are exclusions for accommodation provided under the Immigration and Asylum Act 1999 and for local authority hostels.

Under section 188(1) of the Housing Act 1996, local authorities are obliged to provide "interim accommodation" for homeless applicants in apparent priority need while their cases are being assessed. There is no exclusion in section 3A of the 1977 Act for interim accommodation. Although enquiries into homeless applications are required to be conducted as quickly as possible, in practice they may take a number of months. Nevertheless, in these appeals the local authorities argued that interim accommodation fell outside of the statutory protection.

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The legal issues were: (1) was interim accommodation "occupied as a dwelling" within the meaning of the Protection from Eviction Act 1977 and (2) if not, was eviction without proceedings a violation of the applicants' right to respect for their homes under article 8 of the European Convention on Human Rights? The homeless appellants argued that the answer to both of these questions was yes.

The essential problem from a local authority perspective was that, if either of the appellants' arguments was right, authorities would have to apply for court orders to evict homeless applicants from interim accommodation, once it had been decided that no housing duty was owed to them. Under existing case law at Court of Appeal level, the authorities were not required to go to court to evict the occupiers. See Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439 and Desnousse v Newham LBC [2006] QB 831.

In Newham’s experience, it takes between three to four months to recover possession via undefended proceedings in the county court. In the financial year 2012/2013, Newham made 193 negative homelessness decisions and transferred 332 households between units of temporary accommodation. If it were required to obtain possession via court proceedings, this would lead to a substantial waste of scarce affordable housing and would also make transfers between units of temporary accommodation practically impossible to enforce. To emphasise the point, this would approximately equate to the total number of possession claims brought by Newham in relation to its permanent stock in a year.

Happily, from the local authority point of view, a majority of five of the seven justices who heard the case agreed with Lewisham’s and Newham's arguments. There were four main arguments that convinced them that the interim accommodation was not licensed "as a dwelling".

First, they accepted that, in context, the use of the word "dwelling" required a degree of settled occupation or, in other words, establishing a home. In reaching that conclusion they gained assistance from previous case law, particularly under the Rent Acts, as illuminating the relevant statutory policy.

Secondly, the aim of the interim accommodation provisions was not to require local authorities to provide a settled home. Indeed, a person remains "homeless" for the purpose of the homelessness legislation while occupying interim accommodation.

Thirdly, the licences granted by Newham and Lewisham were consistent with the limited and short-term nature of the interim accommodation provisions. These were nightly or daily licences which contained terms requiring the occupants to move at short notice.

Lastly, they accepted that the imposition of the requirements of the Protection from Eviction Act 1977 on interim accommodation would significantly hamper local authorities in their operation of the homelessness legislation.

Lord Carnwath delivered a concurring judgment, observing that settled practice may, in appropriate circumstances, be an aid to statutory interpretation “where businesses or activities, public or private, have reasonably been ordered on that basis for a significant period without serious problems or injustice.”

Lord Neuberger and Lady Hale, the two senior justices, delivered dissenting judgments. In essence, they were of the opinion that "dwelling" carries its ordinary meaning and that "a temporary dwelling" is a natural use of language. The statutory purpose of preventing people from being summarily evicted or locked out from where they had been living lawfully favoured a wide interpretation. Lord Neuberger and Lady Hale would have held that the policy considerations relied on by the local authorities were an insufficient basis for departing from the ordinary meaning of the statutory language.

Six of the seven justices held that the human rights challenge failed (Lady Hale expressed no view on this issue). The provisions of the homelessness legislation provided the answers: the homeless applicants had rights a) to be involved in the decision making process leading up to eviction and b) to an independent determination of the proportionality of their evictions. In particular, the court accepted a submission by the local authorities that section 204, Housing Act 1996 should be read compatibly with article 8 so as to permit the county court to consider the proportionality of a proposed eviction, as part of a section 204 appeal. They emphasised that it would take a very exceptional case for such a challenge to succeed. It remains to be seen what kind of circumstances would lead to an individual who is unsuccessful on a section 204 appeal to succeed on a proportionality argument.  

As the dissenting judgments show, the legal arguments in these cases were not easy. Given the substantial resource implications and the serious pressures they are under, many local authorities will feel very relieved with the outcome.

Matt Hutchings of Cornerstone Barristers was lead counsel for Lewisham and Newham in CN and ZH. Nicola Margiotta was the instructing lawyer for oneSource Legal Department on behalf of the London Borough of Newham.

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