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Social Welfare Update: Security of tenure for person accommodated by local authority under Everyone In

Friday 30 April 2021

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The Claimant, AAI, was a stateless Palestinian who was sleeping rough in London. The First Defendant, Haringey LBC, secured accommodation for him in May 2020 pursuant to the ‘Everyone In’ initiative to alleviate homelessness during the Covid-19 pandemic.

At the point he was accommodated AAI signed ‘what purported, on its face, to be an agreement for the provision of "Temporary Accommodation provided under Licence to an Occupier for Homelessness Assistance under s. 188(1) or s. 190(2) Housing Act 1996’. However, it was common ground that this was not a legally accurate description as AAI was not eligible for accommodation under Pt 7 Housing Act 1996 because of his immigration status. The accommodation was a self-contained flat provided by the Second Defendant. A nightly charge of £45 was levied for occupation of the accommodation, which was paid by Haringey.

Shortly after AAI moved in, Haringey asked him to move out of the flat and into temporary hotel accommodation. AAI did not do so and, on his case, attempts were made to evict him from the flat without prior notice.

AAI issued proceedings in the county court contending that he occupied the flat under a secure licence or tenancy under Housing Act 1985 and applied for an injunction, compelling the Defendants to re-admit him to the flat and forbidding them from interfering with his quiet enjoyment of it. An interim injunction was granted forbidding the Defendants from excluding AAI from the property or in any way interfering with his quiet enjoyment, following an ex parte telephone hearing.

At an inter partes hearing three days later HHJ Saunders discharged the interim injunction. The preamble to his order recorded that 'the parties did not enter into any legal relationship'. Within his judgment, he also made a number of findings relating to whether AAI had exclusive possession of the flat and whether it was occupied as a ‘dwelling house’, all of which were relevant to whether the flat was occupied under a licence or a tenancy and whether it attracted the protection of Housing Act 1985 or Protection from Eviction Act 1977.

The Claimant appealed arguing that the Judge had erred in making an order at the interim relief stage which was effectively dispositive of his claim as a whole. The High Court allowed his appeal. There was a serious issue to be tried as to whether the parties had intended to enter into legal relations which turned on the particular facts of the case. Following from this, the Judge observed:

64. This leads me to the issue of whether, if there were an intention to create legal relations, the transaction with the claimant generated a state of affairs in which the claimant held a secure tenancy or, at least, one that was subject to the terms of the Prevention from Eviction Act 1977. In R (N) v Lewisham London Borough Council (paragraph 11 above), the majority of the Supreme Court held that the word "dwelling" in section 3 of the Protection from Eviction Act 1977 (prohibition of eviction without due process of law) bore the same meaning as in the Rent Act legislation. As a general rule, "dwelling" suggests a more settled occupation than "residence" and can be equated with one's home. It was therefore necessary to look at the purpose of the licence in each case.

65. Whilst, at first sight, it might be said that the Supreme Court's majority judgment in R (N) supports the first defendant, both as regards the meaning of "dwelling" in the Protection from Eviction Act 1977 and, for the purposes of determining whether any tenancy was a secure one, within the meaning of sections 79 et seq of the 1985 Act, the position before HHJ Saunders was not so clear as to have permitted him to dismiss the substantive claim on this basis. There was in particular the following issue. At paragraph 45 of his judgment, Lord Hodge said:-

"45. Pulling together the threads of the case law, in my view the following can be stated: (i) the words "live at", "reside" and "dwell" are ordinary words of the English language and do not have technical meanings, (ii) those words must be interpreted in the statutes in which they appear having regard to the purpose of those enactments, (iii) as a matter of nuance, "dwelling" as a general rule suggests a more settled occupation than "residence" and can be equated with one's home, although "residence" itself can in certain contexts (such as the two-home cases) require such an equation, and (iv) under the 1996 Act a person remains homeless while he or she occupies temporary accommodation provided under sections 188(3), 190(2), 200(1) or 204(4) of the 1996 Act so long as the occupation is properly referable to the authority's performance or exercise of those statutory duties or powers. In my view it is consistent with this approach to conclude in the context of PEA 1977 that an overnight or day-to-day licence of accommodation pending the making of a decision under section 184 or on review or appeal does not show any intention to allow the homeless applicant to make his or her home in that accommodation."

66. I find the claimant ought to have been afforded the opportunity of arguing, at trial, that the circumstances of his agreement with the first defendant materially differed from the accepted purpose in R (N) of providing "overnight or day to day licence of accommodation pending the making of a decision under section 184 or on review or appeal". On one view, any reliance on R (N) could be said to be redundant since in our case the power under which the accommodation was provided is itself at issue; and, if the claimant is right, then, notwithstanding what the first defendant might have intended, the claimant (a) took possession of premises that are plainly capable of being a "dwelling"; and (b) albeit fortuitously, did so in a way that made his tenancy secure and subject to the protection of the 1977 Act. But, even if one adopts the more limited position that the claimant was merely permitted to live in the premises during the currency of the pandemic, that still arguably put him in a different position from the appellants in R (N), whose terms of occupation would necessarily be short ones.

The Claimant, the judge held, had a properly arguable case to go to trial and the order of HHJ Saunders, in so far as it amounted to a dismissal of the Claimant’s substantive claim, should be set-aside.

The judgment is available here.

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