When is a home not a home? Under Scrutiny: temporary accommodation and the Protection from Eviction Act 1988
Monday, 15th December 2014
In the joined cases of R. (on the application of N) v Lewisham LBC and R. (on the application of H (A Child)) v Newham LBC , the Supreme Court have recently had to consider the question of (1) whether temporary accommodation, provided under the Housing Act 1996 s.188, was subject to the Protection from Eviction Act 1977 s.3 and therefore whether a local authority required a court order before evicting an individual from such accommodation, and (2) whether an eviction by a public authority without first obtaining a court order for possession is a violation of that occupant's rights under Article 8 of the European Convention on Human Rights ("ECHR").
The local authorities had provided temporary accommodation to families under their duty under the Housing Act 1996 s.188 pending inquiries into whether they were homeless. In both cases the local authority had granted licences pending inquiries under section 184. In both circumstances it was concluded that they had become homeless intentionally and possession as sought.
The first issue before the court was a submission that the Protection from Eviction Act 1977 ("PEA") requires a court order to recover possession of "premises occupied as a dwelling under a licence" and that Parliament had set out a comprehensive list in s.3A of PEA 1977 of the tenancies and licences which were excluded from the scope of the Act - this type of accommodation was not, the appellants argued, included. To determine the first issue, the court were required to consider whether the premises were licensed for occupation "as a dwelling". The difficulty before the court was that the words dwell and dwelling do not carry a defined legal meaning but rather are ordinary English words.
In considering the meaning of dwelling, assistance was drawn from the Rent Act, where the court looked at the purpose of the accommodation in order to ascertain if the property is a dwelling. Although Lord Neuberger and Lady Hale dissented, the majority found that that s.188 imposes a low threshold duty onto the local authority in that an authority is not under a duty to provide a particular form of accommodation or to provide the same accommodation for an applicant throughout the period, and can require the applicant to transfer from one address to another pending its decision.
In considering policy issues the Court felt that further straining scarce housing resources by requiring possession orders, combined with the legislative and factual context of licences, pointed to the conclusion that the temporary accommodation provided by the authority in performance of its duties is not provided as a dwelling for the purposes of PEA 1977.
Lord Hodge (in his leading judgment) then turned to discussing various case law and concluded that 'dwelling' suggests a more settled occupation than mere residence. Therefore it was consistent with this approach to conclude that a day to day licence of accommodation does not show any intention to allow the homeless applicant to make his or her home in that accommodation.
Lord Neuberger and Lady Hale's dissenting views were that a person can dwell, reside or live in premises where his occupation is temporary. They highlighted the housing benefit system which makes reference to "funds such persons that are liable to make payments in respect of a dwelling" arguing that the system of funding would fall apart if housing benefit were not available to pay for the temporary accommodation provided. They were also unimpressed by the argument that there should be any disturbance of what had been understood to be the law since the Court of Appeal decision in Mohammed v Manek.
In considering the second issue of the Article 8 consideration the appellants submitted that procedural protection requires the owner to obtain a court order before evicting the occupant enabling them to raise the issue of proportionality as a defence. In deciding this issue the Court noted that it is only in exceptional cases that the applicant will succeed in raising a proportionality defence, that there are safeguards in place that allow the occupant to be involved in the process and through the county court or judicial review have the opportunity to raise the question of proportionality. In addition, recovery of possession was proportionate to the aim pursued and was therefore necessary in a democratic society. Therefore the second issue also failed.
This judgement does offer clarity to local authorities in respect of this issue and the finding that temporary accommodation can be recovered without the need for a possession order will come as a relief to local authorities.