Case Comment: R (ZH and CN) v London Borough of Newham and London Borough of Lewisham  UKSC 62
14 Thursday May 2015
The Supreme Court has held (by a majority of 5-2) that temporary accommodation provided under Pt 7, Housing Act 1996 is not within the scope of s 3, Protection from Eviction Act 1977, such that a possession order is not required to evict occupiers of such property. Art 8, ECHR did not require a public authority to obtain a possession order; taken as a whole, the scheme of Pt 7 1996 Act provided sufficient protection for the rights of the occupiers. In particular, when hearing an appeal under s 204, Housing Act 1996, the county court could consider the proportionality of a proposed eviction which would follow from the dismissal of the appeal and could determine any disputed facts for itself.
The Housing Act 1996, Part 7, governs the duties of local housing authorities to a person who applies for accommodation, or for assistance in obtaining accommodation, where the authority have reason to believe that he is or may be homeless or threatened with homelessness (s 183(1)). The authority must make such inquiries as are necessary to satisfy themselves whether the applicant is eligible for assistance and what, if any, duty is owed to him under Part 7 (s 184(1)). If the authority have reason to believe that the applicant may be homeless, eligible for assistance and in priority need, they are obliged to secure that accommodation is available for his occupation pending a decision as to what (if any) duty is owed (s 188(1)).
Where the authority are satisfied that he is homeless, eligible for assistance, has a priority need but has become homeless intentionally, the authority must secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation and provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation (s 190(1)&(2), 1996 Act). Prior to providing advice and assistance, the applicant’s housing needs must be assessed (s 190(4), 1996 Act). There is nothing to exclude temporary accommodation under these provisions from the definition of “dwelling” for the purposes of housing benefit (s 130, Social Security Contributions and Benefits Act 1992).
Subject to specified exceptions (s 3A, Protection from Eviction Act 1977), where premises have been let as a dwelling under any tenancy or license, an occupier may not be evicted without a court order (s 3, 1977 Act). The content and duration of a notice to quit are also prescribed (s 5). In Mohammed v Manek and Royal Borough of Kensington and Chelsea (1995) 27 HLR 439, it was held that, as a general rule, accommodation made available for an applicant pending enquiries as to what (if any) duty was owed to him under Pt 7, Housing Act 1996, was not within the scope of s 3, so that an authority do not have to obtain a possession order before evicting an applicant. In Desnousse v LB Newham  EWCA Civ 547;  QB 831;  HLR 38, it was held that Manek was still binding, notwithstanding the enactment of the Human Rights Act 1998 and, in particular, the rights protected under art 6 (right to a fair trial) and art.8 (right to respect for home).
The ECHR, art 8, provides, inter alia, that everyone has the right to respect for his home (Art 8(1)). There may be no interference with that right by a public authority except in accordance with the law and so far as is necessary in a democratic society (Art 8(2)). “Home” is an autonomous concept which does not require a right of occupation in domestic law; it is a question of fact whether someone has sufficient and continuous links with a property to be occupying it as a home: see Buckley v UK (1996) 23 EHRR 101; Qazi v Harrow LBC  UKHL 43;  1 AC 983;  HLR 75.
In Manchester CC v Pinnock  UKSC 45;  2 AC 104;  HLR 7, the Supreme Court decided that domestic law should follow the jurisprudence of the ECtHR so that a person at risk of being dispossessed of his home by a public authority should have the right under Art 8 to challenge the proportionality of his eviction and to have it (and any disputed facts necessary to its determination) decided by an independent tribunal notwithstanding that, under domestic law, his right of occupation had come to an end. In Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby  UKSC 8;  2 AC 18;  HLR 23, the decision in Pinnock was held to be of general application whenever a public authority seek possession of a property that constitutes a person’s home. In both Pinnock and Powell, it was held that any proportionality defence should initially be dealt with summarily and should be rejected unless it could cross the threshold of being “seriously arguable”.
CN’s parents were evicted for rent arrears and his mother applied to Lewisham for homelessness assistance under Pt 7, Housing Act 1996. The family was provided with temporary accommodation under s 188(1) pending a s 184 decision. The accommodation was owned by a private owner, who had granted Lewisham a head licence to use the accommodation for homeless persons. Lewisham decided that CN’s mother was homeless intentionally and upheld that decision on review (s 202). There was no appeal against that decision (s 204) and Lewisham told the family to leave the accommodation in 28 days but neither they nor the owner gave notice under s 5, 1977 Act. CN issued a judicial review claim in respect, inter alia, of Lewisham’s decision to evict without a court order. The High Court refused permission to bring the judicial review claim, but permission was granted by the Court of Appeal, which directed that the application should be retained by that court.
ZH was born in March 2012. His mother gave up her assured tenancy in Liverpool and moved to stay with relatives in London. In August 2012, ZH’s mother was asked to leave her aunt’s home and she applied to Newham for homelessness assistance. Pursuant to their duty under s 188(1), Newham provided ZH and her mother with temporary accommodation. The accommodation was owned by a private owner who had granted a head licence to Newham to enable them to use it for homeless accommodation. Newham decided that ZH’s mother was homeless intentionally and required the family to leave the accommodation but neither they nor the owner gave notice under s 5, 1977 Act. A review was requested (s 202) but Newham refused to provide accommodation pending it. ZH issued a claim for judicial review challenging, inter alia, the decision to evict without a court order.
The Court of Appeal dismissed the claims, holding that the decisions in Manek and Desnousse remained good law. The decisions of the Supreme Court in Pinnock and Powell did not establish that a public authority must always take proceedings before evicting someone from his home; in the case of temporary accommodation provided under Pt 7, there would be an opportunity for a review (s 202), an appeal (s 204) and, if necessary, judicial review of the decision to evict.
CN and ZH appealed to the Supreme Court, arguing that they occupied the temporary accommodation as a dwelling for the purposes of s 3, Protection from Eviction Act 1977. In the alternative, the properties were their homes for the purposes of Art 8, ECHR and the respondent public authorities required a court order before evicting them from their homes. The local authorities argued, inter alia, that occupation under the relevant provisions of Part 7 did not comprise occupation of a dwelling as a residence, within s 3 1977 Act, relying on case-law under the Rent Acts and the Housing Act 1985; the Secretary of State argued, inter alia, that Parliament must have been taken to have approved of the decisions in Manek and Desnousse as neither had been overturned despite legislative opportunities to do so.
By a majority, the Supreme Court dismissed an appeal. Lord Hodge (with whom Lords Clarke, Wilson and Toulson agreed) held that the licences granted to ZH and CN were not licences to occupy premises as a dwelling. The statutory context required short term accommodation for a short and determined period. It would significantly hamper the operation of Pt 7, 1996 Act, if such temporary accommodation was within the terms of s 3, 1977 Act. Further, the temporary accommodation was not intended to provide a home and the authorities could require ZH or CN to transfer to other accommodation at short notice. The exclusions in s 3A, 1977 Act were for the avoidance of doubt, rather than to provide an exhaustive list of lettings which fell outside of s 3. The fact that Parliament had not overturned the decisions was potentially relevant if there was an ambiguity in the statutory scheme, but there was no such ambiguity. When considering the position under Art 8, the statutory scheme had to be seen as a whole. In particular, the applicant would have been given reasons for an adverse decision and the opportunity for it to be reviewed (s 202) and considered on appeal (s 204). Homeless children and families would additionally be likely to qualify for support from social services. It was, however, necessary to re-interpret the scope of a s 204 appeal as empowering the county court to assess the proportionality of a proposed eviction which would follow from the appeal being dismissed and to resolve any relevant dispute of fact. The combination of these factors was sufficient to ensure compliance with Art 8.
Lord Carnwath agreed with Lord Hodge, save for the importance of the fact that Parliament had not overturned Manek or Desnousse. The cases could give rise to a “settled understanding” which was relevant to issues of statutory interpretation. If a statute was ambiguous, but had been considered by lower courts, there should be a strong presumption against overturning that settled practice.
Lord Neuberger – with whom Lady Hale agreed – dissented on the principal issue, whether temporary accommodation under Pt 7 was within the scope of s 3, 1977 Act. That provision was aimed at protecting anyone who had been lawfully living in premises which had been let as a dwelling. The words should be given a wide, rather than narrow meaning. Temporary accommodation under Pt 7 was a short term dwelling, but a dwelling nonetheless. The absence of any exclusion for such accommodation in s 3A, 1977 Act was also important. It was not a permissible approach to statutory construction to use the provisions of Pt 7, 1996 Act to inform the meaning to be given to s 3, 1977 Act, as the former post-dated the latter. It was striking that temporary accommodation was a “dwelling” for housing benefit purposes. Finally, it was not safe to assume any Parliamentary approval from the failure to overturn Manek or Desnousse as Parliament and it would be dangerous in practice and principle to start second-guessing Parliament. Lady Hale considered that – in light of their conclusion on the principal issue – the Art 8 issue did not arise.
Republished with kind permission. This post originally featured on Arden Chamber’s website and can be found here.
Andrew Arden QC, Toby Vanhegan, Justin Bates and Senay Nihat from Arden Chambers appeared for ZH and CN.
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