Landlord and tenant – Possession – Homelessness – Respondent council providing appellant and her family with temporary accommodation pursuant to interim housing duty under section 188 of Housing Act 1996 – Tenancy agreement signed on form appropriate to introductory tenancy under section 124 – Respondents later seeking possession – Whether appellant having introductory tenancy or non-secure tenancy – Whether grant of introductory tenancy precluded by exception in para 4 of Schedule 1 to Housing Act 1985 relating to tenancies granted pursuant to local housing authority’s homelessness duties under Part VII of 1996 Act – Appeal dismissed
In 2011, the appellant and her husband applied to the respondent council for accommodation for themselves and their four children on the grounds of homelessness. The respondents housed the family in temporary bed-and-breakfast accommodation pursuant to their interim housing duty under section 188 of the Housing Act 1996. In June 2011, the respondents wrote to the appellant and her husband to offer them another property in London, SW17, as alternative temporary accommodation. The appellant and her husband signed a tenancy agreement for that property in the form appropriate for the grant of an introductory tenancy under section 124 of the 1996 Act, including a certificate of acceptance indicating that the tenancy would become a secure tenancy at the end of a 12-month trial period.
The respondents later indicated that the introductory tenancy form had been used in error and that the property was provided as temporary accommodation pending further inquiries into whether the appellant’s family were intentionally homeless. In July 2012, they brought a claim for possession of the property, contending that no more than a non-secure tenancy had been granted pursuant to the interim housing duty. They argued that the tenancy was incapable of taking effect as an introductory tenancy under section 124 of the 1996 Act since it did not fulfil the requirement of being a tenancy which would otherwise have been a secure tenancy under the Housing Act 1985. They contended that the tenancy fell within the exception in para 4 of Schedule 1 to the 1985 Act, which applied to tenancies granted in pursuance of any function under Part VII of the Housing Act 1996 unless the local housing authority had notified the tenant that the tenancy was to be regarded as a secure tenancy.
In the county court, the judge granted a declaration in favour of the respondents. On appeal from that decision, the appellant argued that the relevant notification for the purposes of para 4 was contained in the terms of the tenancy agreement; alternatively, para 4 did not apply since the tenancy had not been granted in pursuance of the respondent’s duties in relation to homelessness under Part VII of the 1996 but was an allocation of housing under Part VI.
Held: The appeal was dismissed.
The legal effect of the July 2011 tenancy agreement did not depend on the proper construction of that agreement or on whether the apparent grant of an introductory tenancy was ultra vires the respondents’ statutory powers or made in error and therefore of no effect. On any view, the agreement was effective to grant a tenancy of the property. The kind of tenancy which it granted was then determined by the statutory regime contained in the 1996 Act and the 1985 Act, regardless of how the parties chose to describe it in the agreement or even how they might have intended it to take effect. While the language used in the tenancy agreement purported to create an introductory tenancy, it could not do so as a matter of law.
In order to be an introductory tenancy, the tenancy had to be one which would otherwise be a secure tenancy under the 1985 Act. The July 2011 tenancy was not such a tenancy since it fell within the exception in para 4 of Schedule 1 to the 1985 Act for tenancies granted pursuant to the respondents’ duties in relation to homelessness under Part VII of the 1996 Act. It was not possible to interpret the grant as having been made simply as part of an allocation of housing pursuant to Part VI of the 1996 Act. Although the Part VI power of allocation was separate from the housing duties under Part VII, that did not mean that any purported grant of an introductory tenancy was a Part VI allocation. It was still necessary to has to resolve the prior question of which powers the respondents had been exercising when they made the grant. At the time when the tenancy was granted, the respondents had not yet concluded their investigations into whether the appellant and her husband were intentionally homeless. The couple had an extant homelessness application and had been informed in writing that the respondents intended to provide them with temporary accommodation at the property in accordance with their Part VII duties. In the circumstances, the accommodation could only have been provided pursuant to the interim housing duty under section 188 of the 1996 Act. It followed that it could not be a secure tenancy unless the notification referred to in para 4 of Schedule 1 to the 1985 Act had been given.
Read as a whole, and in the context in which it was signed, the tenancy agreement and the certificate of acceptance which it contained could not amount to a notification by the respondents for the purpose of para 4 that the tenancy was to be a secure tenancy. The certificate was simply an acknowledgement by the appellant and her husband of the effect of sections 124 to 129 of the 1996 Act. It was not any form of notification by the respondents, whether for the purposes of para 4 or otherwise. The purpose of the certificate was to provide a statement by the tenants that they had understood the general statutory provisions which governed the grant of an introductory tenancy. It could not be read as anything more and, in any event, it did not contain the language that would be necessary for a para 4 notification: Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202; [2011] PLSCS 252 applied. It followed that the tenancy granted to the appellant and her husband was a non-secure tenancy.
Jonathan Manning and Sarah McKeown (instructed by South West London Law Centres) appeared for the appellant; Stephen Evans (instructed by the legal department of Wandsworth London Borough Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Wandsworth London Borough Council v Tompkins and another
