Human rights – Possession – Homelessness – Protection from Eviction Act 1977 – Local authorities providing temporary accommodation to housing applicants pursuant to section 188 of Housing Act 1986 – Authorities concluding that full housing duty not owed and seeking to evict applicants – Whether required to obtain possession order pursuant to section 3 of 1977 Act – Whether section 3 applying to such temporary accommodation – Whether eviction without possession proceedings incompatible with Article 8 of European Convention on Human Rights – Judicial review claims dismissed
Each of the two joined cases concerned a grant of temporary accommodation by a local authority to a family who had applied for assistance on the grounds of homelessness. In each case, the authority provided such accommodation pending further inquiries, pursuant their duty under section 188 of the Housing Act 1996, but later concluded that, while the applicants were homeless and in priority need, they had become intentionally homeless, such that the authority no longer owed the full housing duty under section 193(2) of the 1996 Act but only the lesser duty under section 190. Pursuant to that duty, the authorities permitted the applicants to remain in the property while they sought alternative accommodation, provided them with advice and assistance in that regard and obtained an assessment of the needs of the children from their social services department; the applicants were initially permitted to remain for 28 days, and a further short extension was granted, but the authorities indicated that the applicants had to leave at the end of that period.
The applicants applied for permission for judicial review, contending that, by virtue of section 3 of the Protection from Eviction Act 1977, the authorities could not evict them without first obtaining a possession order. In the first case, permission was refused by a deputy judge, who held that section 3 did not apply since, on the authority of Mohammed v Manek (1995) 27 HLR 439 and Desnousse v Newham London Borough Council [2006] EWCA Civ 547 respectively: (i) as a matter of construction, temporary accommodation provided to an applicant for homelessness assistance pursuant to an authority’s interim duty to house such an applicant pending further inquiries was not “occupied as a dwelling under a licence” within the meaning of section 3(2B); and (ii) that reading of section 3 was not inconsistent with Article 8 of the European Convention on Human Rights. The Court of Appeal subsequently granted permission on appeal and heard the claim together with that in the second case.
The central issue was whether Manek and Desnousse had ceased to bind the court in light of the subsequent decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186 on the application of Article 8; the applicants contended that the court should hold that, in order to act compatibly with Convention rights, an authority must always seek an order for possession against an occupier of a home.
Held: The claims were dismissed.
Compliance with Article 8 did not require that a public authority should always be required to take proceedings before evicting someone from his home. No such proceedings were required where an authority had provided temporary accommodation to an applicant for homelessness assistance pending further inquiries, pursuant to the duty under section 188 of the 1996 Act. In light of the obligation on the authority to provide advice and assistance, the right of review and appeal and the opportunity for judicial review, the occupier was given ample opportunity throughout the process to engage with the authority and explain and substantiate his claim that it would be disproportionate to evict him. Those rights were substantive and authorities could, in general, be trusted to act responsibly and reasonably. Moreover, the scheme of the legislation fell within the wide margin of appreciation that was afforded to states in implementing social and economic policies in matters concerning housing and in balancing the competing interests of the individual and of the community as a whole. In that regard, an important consideration was the burden that would be placed on local authorities and other landlords if they were required to bring possession proceedings before eviction in all cases where temporary accommodation had been provided under section 188 or 190 of the 1996 Act. Given the immense pressure on social housing, the costs and delays occasioned by such proceedings would have a real and serious impact on homeless families and on the ability of authorities to provide accommodation to those who needed it most.
Although the court had to have the power to assess the proportionality of the eviction and resolve any dispute of fact, that did not require the authority to bring eviction proceedings. Where eviction proceedings were brought, the Article 8 proportionality argument could be advanced by way of defence. However, if the authority had no need to bring eviction proceedings, the occupier of temporary occupation could still raise the issue of proportionality by way of judicial review; in such proceedings, the court had the power to make its own assessment of any relevant facts that were in dispute and to give effect to an occupier’s Article 8 rights in an appropriate case.
Accordingly, it was not necessary, in order to provide an occupier with an opportunity to vindicate his Article 8 rights, that a local authority should be required to bring proceedings for possession in every case, however pointless it would be. The decisions in Manek and Desnousse were not inconsistent with Pinnock and Powell and should still be followed.
Andrew Arden QC and Toby Vanhegan (instructed by TV Edwards LLP) appeared for the applicants; Matt Hutchings and Jennifer Oscroft (instructed by the legal departments of Lewisham London Borough Council and Newham London Borough Council) appeared for the respondent local authorities; Martin Chamberlain QC (instructed by the Treasury Solicitor) appeared for the interested party, the secretary of state for communities and local government.
Sally Dobson, barrister
