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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CN, R (on the application of) v London Borough of Newham [2013] EWCA Civ 804 (11 July 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/804.html Cite as: [2013] HLR 46, [2013] 30 EG 79, [2013] EWCA Civ 804, [2013] WLR(D) 297 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Philip Mott QC (sitting as a Deputy Judge of the High Court)
CO/4797/2012
AND
IN THE MATTER OF A CLAIM FOR
JUDICIAL REVIEW
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE KITCHIN
and
LORD JUSTICE FLOYD
____________________
The Queen on the Application of CN |
Appellant |
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- and - |
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London Borough of Lewisham |
Respondent |
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- and - |
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The Secretary of State for Communities and Local Government |
Interested Party |
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-and- |
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The Secretary of State for Communities and Local Government |
Interested Party |
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And Between: |
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The Queen on the Application of ZH (a child by FI, his litigation friend) |
Claimant |
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- and - |
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London Borough of Newham |
Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Appellant in the first case and for the Claimant in the second case
Matt Hutchings and Jennifer Oscroft (instructed by London Borough of
Lewisham Legal Department) for the Respondent in the first case and (instructed by London Borough of Newham Legal Department) for the
Defendant in the second case
Martin Chamberlain QC (instructed by The Treasury Solicitor) for the Secretary
of State for Communities and Local Government
Hearing dates: 10 and 11 June 2013
____________________
Crown Copyright ©
Lord Justice Kitchin:
Introduction
The facts
(a) The case of CN
(b) The case of ZH
The legal framework
Housing Act 1996
"188. Interim duty to accommodate in case of apparent priority need
(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
…
(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202)."
"190. Duties to persons becoming intentionally homeless
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.
(2) If the authority are satisfied that the applicant has a priority need, they shall -
(a) 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
(b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.
(3) If they are not satisfied that he has a priority need, they shall provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.
(4) The applicant's housing needs shall be assessed before advice and assistance is provided under subsection (2)(b) or (3).
(5) The advice and assistance provided under subsection (2)(b) or (3) must include information about the likely availability in the authority's district or types of accommodation appropriate to the applicant's housing needs (including, in particular, the location and sources of such types of accommodation)."
Protection from Eviction Act 1977
"3. Prohibition of eviction without due process of law
(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and –
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
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.
(2) In this section "the occupier", in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.
(2A) Subsections (1) and (2) above apply in relation to any restricted contract (within the meaning of the Rent Act 1977) which –
(a) creates a licence; and
(b) is entered into after the commencement of section 69 of the Housing Act 1980;
as they apply in relation to a restricted contract which creates a tenancy.
(2B) Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions "let" and "tenancy" shall be construed accordingly.
"5. Validity of notices to quit
(1) Subject to subsection (1B) below, no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless -
(a) it is in writing and contains such information as may be prescribed, and
(b) it is given not less than 4 weeks before the date on which it is to take effect.
(1A) Subject to subsection (1B) below, no notice by a licensor or a licensee to determine a periodic licence to occupy premises as a dwelling (whether the licence was granted before or after the passing of this Act) shall be valid unless –
(a) it is in writing and contains such information as may be prescribed, and
(b) it is given not less than 4 weeks before the date on which it is to take effect.
(1B) Nothing in subsection (1) or subsection (1A) above applies to –
(a) premises let on an excluded tenancy which is entered into on or after the date on which the Housing Act 1988 came into force unless it is entered into pursuant to a contract made before that date …"
The decisions in Manek and Desnousse
"The provisions in Part III of the 1985 Act for housing the homeless were formerly in the Housing (Homeless Persons) Act 1977. In my view, the provisions of the other Act of 1977, the Protection From Eviction Act, cannot have been intended to apply to the temporary housing by or on behalf of councils of the homeless. Under Part III of the 1985 Act councils have a public duty to secure accommodation under section 63 or 65 for many people. It is in the interests of good public administration that they should not have to commit their limited resources to securing accommodation for persons to whom, after making due inquiries, they properly decide they have no duty, at the expense of others to whom they may have a duty. The threshold for the duty is a low one, "reason to believe that an applicant may be homeless and have a priority need". The inquiries may take only a few days and result in a decision that a temporarily housed applicant is not in fact homeless or in priority need. A council's ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under section 63 for investigation of his application.
In my view, as a matter of construction of section 3(2B) of the 1977 Act, the expression "occupied as a dwelling under a licence" cannot apply to bed-and-breakfast accommodation of this sort, when, as here, it is provided pursuant to an agreement clearly intended as a purely temporary arrangement pending the making of inquiries under section 62. The council's duty under section 63 is only to secure accommodation pending those inquiries and their decision as a result of them. It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks drawn from another statute dealing with the private rights and duties of landlords (licensors) and tenants (licensees) as between themselves. Nor does it accord with the ordinary use of language to describe temporary accommodation in a hotel or hostel for this purpose as premises "occupied as a dwelling under a licence". In my view, that is so whether the council provide the accommodation themselves or arrange it through some third party, subject in each case, however, to any contrary agreement. The agreement here was plainly not to the contrary. It bore all the marks of an arrangement for the purpose of section 63 only, and not, in Lord Greene's words, "as a matter of fair and reasonable construction of simple words" as premises occupied as a dwelling under a licence."
"I rest my decision primarily on the simple proposition, derived from a purposive construction of both statutes, that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authority's inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy [or] premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. The context and purpose of section 63(1) have been fully considered by Auld LJ and I agree with the views he has expressed. Moreover, it cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1). True, the general rule may be displaced by an agreement between an authority and an applicant such as had been entered into in Eastleigh Borough Council v Walsh [1985] 1 WLR 525, or perhaps if the applicant's occupation is allowed to continue on a more than transient basis. But there was no such agreement or occupation here, nor anything else to take the case out of the general rule."
"154. But once a decision is made that no duty is owed I do not think the authority should have to take court proceedings to evict any applicant who fails or refuses to vacate the temporary accommodation provided. Even if everything went according to plan from issue of proceedings to court-ordered eviction the period of occupation would it seems to me be prolonged by months rather than weeks in most cases. I think one can also anticipate that this process will be further delayed by unmeritorious defences being raised to the claim for possession. Meanwhile the accommodation will not be available for other applicants to whom the authority owe duties which, as the judge said, might very well act to their detriment. Furthermore, in these days of limited resources the cost of taking proceedings (both in terms of actual expense and manpower) is a factor which should not be underestimated.
155. All in all I think the consequences of Lloyd LJ's conclusion would be far-reaching and would seriously hamper the ability of local authorities to discharge their duties under the 1996 Act. Subject to the uncertainty to which I have referred (at para 148 above) it would apply to all cases in which the accommodation was made available under section 199(1) and not just to those cases like the present where the applicant was in priority need but intentionally homeless."
These claims
"Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them."
"From these cases, it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v United Kingdom 47 EHRR 913, para 50; Cosic v Croatia 52 EHRR 1098, para 22; Zehentner v Austria 52 EHRR 739, para 59; Paulic v Croatia given 22 October 2009, para 43; and Kay v United Kingdom [2011] HLR 13, paras 73-74. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (ie, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189, para 92; McCann v United Kingdom 47 EHRR 913, para 53; Kay v United Kingdom [2011] HLR 13, paras 72-73. (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria 52 EHRR 739, para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v United Kingdom 47 EHRR 913, para 54; Kay v United Kingdom, para 73."
"… Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact."
"61. First, it is only where a person's "home" is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant's home (eg where very short-term accommodation has been provided). Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained."
"Finally, the Court reiterates that in the assessment of the present case it should be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. Whilst Art. 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests."
"65. State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one. The domestic authorities' judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under Art. I of Protocol No. I …. the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of Article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued."
"112. In addition, there may also be positive obligations inherent in an effective "respect" for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific measures.
113. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both the negative and positive contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation."
"Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock, as to other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order."
"The decision of the local authority to seek possession in a homelessness case will, of course, have been taken against the background of all the advice and assistance that the provisions of Part VII of the 1996 Act require to be given to the applicant. It is unlikely, as the course of events in Ms Powell's case demonstrates, that the reason why it has decided to take proceedings for eviction will not be known to the tenant. The right to request a review of the decisions listed in section 202 and the right of appeal under section 204 are further factors to be taken into account. They provide the tenant with an opportunity to address any errors or misunderstandings that may have arisen and to have them corrected. She will have a further opportunity to raise such issues as a judicial review for the tenant, not for the local authority. There is no need for the court to be troubled with these issues unless and until, at the request of the tenant, it has to consider whether it should conduct a proportionality exercise."
"The council's duty under s.63 is only to secure accommodation pending those inquiries (under s.62) and their decision to resolve them. It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks …"
Lord Justice Floyd:
Lord Justice Moses: