Landlord and tenant — Secure tenancy — Whether terms of licence between housing authority and private landlord made grant of tenancy by the local authority a secure tenancy — Whether defendant tenant entitled to rely upon matters susceptible to judicial review in defence to possession proceedings
In discharging
their statutory responsibility under Part III of the Housing Act 1985, relating
to ‘housing the homeless’, the appellant council provided short-term accommodation
to the respondent, Mrs Lul Hassam Abdi and her family from October 30 1990 in
Flat B, 366 Green Lanes, London N4. On March 21 1991 the council offered the
respondent permanent accommodation at 32 Sleaford House, Lincoln Estate, London
E3, which she considered unsuitable for her medical condition; she rejected the
offer. The council having informed the respondent on May 21 1991 that their
duty under Part III of the 1985 Act had been performed, they served a notice to
quit on her on June 20 1991. Upon the respondent failing to give up possession
the council commenced possession proceedings. Flat B was owned by a private
landlord and held by the council under a licence dated March 9 1988. In the
proceedings the council made applications: (1) for the trial of a preliminary
issue as to whether the respondent had a secure tenancy by reason of the
requirements at para 6 of Schedule 1 to the 1985 Act; and (2) that the
respondent’s defence and counterclaim be struck out as either disclosing no
reasonable defence or cause of action or as being abusive. Giving no reasons
Judge Medawar QC dismissed both applications. The council appealed.
favour of the council, the defence and counterclaim was struck out and an order
for possession was made. The judge’s omission of reasons for the exercise of
his discretion was regrettable: it is the duty of a judge to give reasons,
albeit brief, for his decision. (1) Conditions (a) and (b) in
para 6 of Schedule 1 to the Housing Act 1985 were satisfied. It was inherent in
the agreement by the private landlord that vacant possession was granted to the
council; the purpose of occupancy by homeless persons was unachievable save by
the grant of vacant possession confirmed by the provision in the agreement for
giving vacant possession on its termination. The agreement between the private
landlord and the council contained a provision for the licensor to obtain
possession when he required, namely upon the giving of a seven-day notice. (2)
It was difficult to understand how an asserted breach of duty could be an
answer to a claim for possession of Flat B. The assertion of a breach of duty
has as its necessary corollary an allegation of infringement of right. If the infringed
right has no existence in private law but exists solely in public law, then the
complaint is apt for judicial review and to raise it in another way is abusive.
The only
rejected. She had, and has, no other private right although she would of course
have had a sufficient locus to challenge timeously the legality of the
council’s performance of their public law functions.
The following
cases are referred to in this report.
Ali v Tower Hamlets London Borough Council [1992] 3 All ER 512,
Avon
County Council v Buscott [1988] QB 656;
[1988] 2 WLR 788; [1988] 1 All ER 841; (1988) 86 LGR 569, CA
Cocks v Thanet District Council [1983] 2 AC 286; [1982] 3 WLR 1121;
[1982] 3 All ER 1135; (1982) 81 LGR 81, HL
Eagil
Trust Co Ltd v Pigott-Brown [1985] 3 All ER
119, CA
O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER
1124, HL
Tower
Hamlets London Borough Council v Miah [1992]
2 WLR 761; [1992] 2 All ER 667; (1991) 90 LGR 151; [1992] 1 EGLR 39; [1992] 18
EG 147
Wandsworth
London Borough Council v Winder [1985] AC
461; [1984] 3 WLR 1254; [1984] 3 All ER 976; (1984) 83 LGR 143, HL
This was an
appeal by Tower Hamlets London Borough Council from a decision of Judge Medawar
QC, sitting in Edmonton County Court on June 17 1992, whereby he rejected two
applications, an application for a question to be tried as a preliminary issue
and one for the defence and counterclaim of the respondent, Mrs Lul Hassam
Abdi, to be stuck out in possession proceedings brought by the council against
the respondent in relation to Flat B, 366 Green Lanes, London N4.
Ashley
Underwood and Lisa Giovannetti (instructed by the solicitor, Tower Hamlets
London Borough Council) appeared for the appellant; Alan Tyrrell QC and Mark
Loveday (instructed by Timmis Desai) represented the respondent.
Giving the
first judgment at the invitation of Glidewell LJ, MANN LJ said: There is
before the court an appeal against a decision of Judge Medawar QC given in Edmonton
County Court on June 17 1992. On that day the learned judge had before him two
applications by Tower Hamlets London Borough Council, which had been made by
them in an action in which they were the plaintiffs and in which the defendant
was Mrs Lul Hassam Abdi. The applications were: (1) an application under the
County Court Rules, Ord 13, r2, for a question to be tried as a preliminary
issue; (2) an application under Ord 13, r5, for the defence and counterclaim to
be struck out either as disclosing no reasonable defence or cause of action or
as being abusive.
The judge
dismissed both of those applications and the council now appeal against his
decision.
Each
application was one which called for an exercise of judicial discretion and, I
at once observe, that the judge gave no reasons for exercising his discretion
as he did. This was a regrettable omission. Recognised exceptions apart, it is
the duty of a judge to give reasons, albeit brief reasons, for his decision.
That duty exists so that the parties and, where necessary, this court can know
the basis on which the judge has acted. I draw attention to the observations
made in this court in Eagil Trust Co Ltd v Pigott-Brown [1985] 3
All ER 119. As it is, in this case we are deprived of the benefit of the knowledge
to which I have referred. Mr Tyrrell QC, for the respondent defendant, did
suggest that we should remit for the judge to exercise his discretion and to
give reasons for that exercise. That would be a most unfortunate course, for
the matter has now been fully argued before this court and I see no necessity
for adopting it. That course would arguably be necessary only if the judge had
declined to exercise his discretion at all and it is not suggested, nor is it
to be inferred, that that was the case.
Background
The council
have, as a housing authority, a statutory responsibility under Part III of the
Housing Act 1985 which relates to ‘housing the homeless’. In the exercise of
powers conferred under that part, the council determined in June 1990 that Mrs
Abdi and her family were unintentionally homeless persons and, accordingly, the
council accepted a statutory obligation to provide the family with suitable
accommodation: see sections 65 and 69, as amended, of the 1985 Act. The council
discharged their duty in the first instance by providing accommodation as from
October 30 1990 in Flat B, 366 Green Lanes, N4. There was a written agreement
between the council and Mrs Abdi relating to that accommodation dated October
29, which was prefaced in this way:
Dear Mrs Abdi,
HOUSING ACT
1985, (PART III) — PROVISIONS OF TEMPORARY ACCOMMODATION
You will now
be moving into your new temporary home. This is not your final accommodation
but we hope you will be happy there until a permanent dwelling is found for
you.
There were then
terms and conditions as to the occupancy. Mrs Abdi and her family moved in.
On March 21
1991 the council offered Mrs Abdi permanent accommodation at 32 Sleaford House,
Lincoln Estate, E3. Mrs Abdi regarded that offer as being an offer of unsuitable
accommodation, the unsuitability being that it did not cater for her medical
condition. The council considered Mrs Abdi’s rejection to be unreasonable and,
on May 21, they informed her that their duty under Part III of the Act had been
performed by the making of the offer which she had rejected. On June 20 1991
they served a notice to quit Flat B. Mrs Abdi did not comply with that notice
and the council commenced possession proceedings, in the course of which the
two applications now before the court came to be made.
Flat B is what
is called private-leased accommodation which, we were told, has to a great
extent supplanted bed-and-breakfast accommodation as temporary accommodation
for the homeless. It is a means by which local housing authorities can obtain
the temporary use of private-sector accommodation for the homeless. It is a
means recognised by provisions in the 1985 Act, which prevent tenancies or
licences of such temporary accommodation from becoming secure tenancies or
licences. Ordinarily, a letting or a licence by a housing authority of a
separate dwelling to an individual becomes a secure tenancy or licence with the
accompanying restrictions on recovery of possession. But among the exceptions
to the ordinary rule is one found at para 6 of Schedule 1 to the 1985 Act:
Short-term
arrangements
6. A
tenancy is not a secure tenancy if —
(a) the dwelling-house has been leased to the
landlord with vacant possession for use as temporary housing accommodation,
(b) the terms on which it has been leased include
provision for the lessor to obtain vacant possession from the landlord on the
expiry of a specified period or when required by the lessor,
(c) the lessor is not a body which is capable of
granting secure tenancies, and
(d) the landlord has no interest in the
dwelling-house other than under the lease in question or as a mortgagee.
The terms
under which the council held Flat B are in a licence dated March 9 1988 and
made between the owner of the premises and the council. Clause 1 provides:
The Grantor permits
the [Licensee] to use the premises at
— which can then be identified from another
page —
for the sole
purpose of enabling the [Licensee] to provide temporary housing accommodation
for the homeless persons as hereinafter defined but not so as to create a
relationship of landlord and tenant between the Grantor and Licensee or to
confer on the Licensee such rights as would amount in law to a tenancy of the
premises or to create any estate or proprietory interest therein or to create
any form of partnership or joint venture between Grantor and Licensee.
That the
instrument is a licence rather than a lease is not material for the purposes of
para 6. This court so held in Tower Hamlets London Borough Council v
Miah [1992] 2 WLR 761*. The conclusion of the court was that the word
‘leased’ in the paragraph is apt in context to include ‘licence’. We were not
invited to depart from that decision and we could not do so even if we so
wished.
*Editor’s
note: Also reported at [1992] 1 ELGR 39.
It is the
council’s case that the conditions in para 6 were here satisfied, that,
therefore, Mrs Abdi acquired no statutory interest in Flat B, that the notice
to quit was sufficient to terminate her contractual rights under the agreement
of October 29 and that the claim for possession is, accordingly, unanswerable.
The defence
filed in answer to that case has two components. First, it is alleged that two
of the conditions in para 6 of Schedule 1, that is to say, (a) and (b),
are not satisfied, with the consequence that the exception to the creation of a
‘secure licence’ is not satisfied and a secure licence was created as from
October 1990. The second component is a denial of an averment in the
particulars of claim that the rejection of permanent accommodation was
unreasonable, together with a counterclaim for a declaration that the council
had not discharged their duty under the Act to the defendant. The components of
that defence prompted the applications for, first, a
that would be a determinate question and, second, for the defence and
counterclaim to be struck out as abusive, on the grounds that issues as to the
performance of the statutory obligations could be raised only in proceedings
for a judicial review.
As to the
first application, I entertain no doubt that the preliminary issue suggested is
one good to be such, for it is short, requires no evidence save the licence
agreement and notice to quit and, subject to the defence concerning
non-performance of a statutory obligation, determinate. We have in effect been
asked to resolve the preliminary issue and I pass to consider it.
The issue
raised, secure licence or not, is narrowed as to whether subparas 6(a)
and (b) are satisfied in the circumstances. As to (a), Mr Tyrrell
submitted that this subparagraph was not satisfied because the agreement, which
was the only material before the court, did not in terms grant vacant
possession and, indeed, gave the licensor a right to enter, and inferentially
to remain, for any purpose. The material clauses of the licence are clauses 4
and 6:
4. Throughout
the subsistence hereof the Licensee shall have the right to nominate persons
being homeless persons as defined by the provisions Part 3 of the Housing Act
1985 . . . to occupy the Premises on the terms hereinafter appearing and the
Grantor shall provide for the use of the Nominees all such services as may be
reasonably requested by the Licensee . . .
6. The terms
on which the Licensee shall permit the nominees to be temporarily accommodated
at the Premises shall reserve and acknowledge the right of the Grantor to enter
the Premises for any reason at any time without having to give any previous
notice to the Licensee or their Nominees and further shall ensure that the
Licensee can give vacant possession of the Premises to the Grantor on
termination of this Licence.
Mr Underwood,
for the plaintiff council, submitted that it was inherent in the agreement,
particularly having regard to clause 4, that vacant possession was granted. I
agree: the purpose of occupancy by homeless persons is unachievable save by the
conferment of vacant possession on the council, and that this was done is
shown, in my judgment, by the provision for giving up of vacant possession on
termination. One cannot give up what one has not acquired. As to the right of
entry, I cannot regard that as being adverse to the acquisition of vacant
possession. Indeed, the contrary. A possessor does not require the reservation
of a right to enter on that which he possesses.
As to subpara
(b), Mr Tyrrell submitted that that was not satisfied because neither is
there a specified period in the licence nor is there a provision for vacant
possession when required by the licensor. Mr Underwood drew our attention to
clauses 2, 6 and 8. Clause 6 I have already read. Clauses 2 and 8 are in these
terms:
2. This
Licence shall subsist until revoked as hereinafter provided.
8. This
Licence may be terminated by the Grantor giving to the Licensee not less than 7
days notice in writing.
Mr Underwood
submits that, taken together, the three clauses provide for the licensor to
obtain possession on the expiry of a specified period, that is to say, seven
days, or alternatively when required. The first submission is plainly arguable.
The second is, in my judgment, unanswerable. There was provision for the
licensor to obtain possession when he required, that is to say, by the giving
of a seven-day notice. Accordingly, I reject Mr Tyrrell’s submissions in regard
to subparas (a) and (b) and I should remark that he accepted they
were not conspicuously encumbered by merit. I, accordingly, conclude that there
was no secure licence and, the notice to quit being accepted as sufficient to
end the contractual licence, I can turn to the defence and counterclaim
concerning the council’s alleged failure to provide suitable accommodation.
The pleadings
upon the point are short. Paras 9 and 10 of the particulars of claim state by
way of narrative as follows:
9. On 4th
April 1991 the Plaintiffs made an offer to the Defendant of a secure tenancy at
32 Sleaford House, London E3 which offer the Defendant unreasonably declined.
10. By a letter
dated the 21st May 1991 the Plaintiffs notified the Defendant that they had
discharged their duty to the Defendant under Part III of the 1985 Act.
I said that
those paragraphs were narrative because, in my view, they are not averments
material to the claim for possession. However that may be, they attracted these
paragraphs in the defence, that is to say, paras 4 and 5:
4. Paragraph
9 is denied insofar as the Defendant avers that her rejection of the said
accommodation upon medical grounds, the details of which have been supplied to
the Plaintiff was in all the circumstances of this case reasonable.
5. For the
matters hereinbefore pleaded, paragraph 10 is denied.
The
counterclaim repeated, among others, paras 4 and 5, and claimed ‘A declaration
that the Plaintiffs have not discharged their duty under Part III of the
Housing Act 1985’.
Mr Underwood
submits that the allegations in the defence and counterclaim are allegations
entertainable only in judicial review proceedings for they are not referenced
to any private law right to remain in Flat B. Mr Underwood relied upon Avon
County Council v Buscott [1988] QB 656. In that case, gypsies sought
to resist proceedings under Ord 113, not by reference to any private right to
remain on the council’s land, but by reference to the council’s failure to
provide accommodation for them in alleged breach of the duty imposed by the
Caravan Sites Act 1968. After referring to the speech of Lord Fraser in Winder,
to which I shall come, Lord Donaldson of Lymington MR said at p663D:
There is a
fundamental difference between this case and Winder’s case. Mr Winder
was seeking to raise a true defence. He was saying that he had a valid tenancy,
that he did not owe any rent and accordingly was not liable to eviction. It was
a defence on the merits. In the present case the defendants do not allege any
right to occupy the land and accordingly do not deny that they are liable to be
evicted. They do not suggest that they have any defence on the merits. What
they say is quite different, namely, that the council is not entitled to
enforce its rights. It is not entitled to come to the court to seek an eviction
order. If one can imagine a private company whose memorandum and articles
limited its powers to acting in a way which was Wednesbury reasonable
and which sought to evict the defendants from its land in similar
circumstances, the defendants would be seeking to strike out the action for
want of authority on the part of the plaintiff to bring the action. When a
defendant is seeking, in effect, to strike out an action on the basis of a
public law right, he should, in my judgment, proceed by way of an application
for judicial review, thus ensuring that the matter is dealt with speedily as a
preliminary point and in a manner which gives the public authority and the
public which it serves the protections enshrined in the judicial review
procedure.
Mr Underwood
says that those observations are compelling in his favour. He says that, by
analogy, once the contractual arrangement between the council and Mrs Abdi was
terminated by the notice to quit, there was no private right to remain in the
flat.
Mr Tyrrell
relies upon passages in the speech of Lord Fraser in Wandsworth London
Borough Council v Winder [1985] AC 461. In that case, a defendant
was allowed to raise as a defence to a claim for rent due that the amount of
the rent was unlawful, even though the decision as to the amount was a decision
in the public domain which was susceptible to judicial review. The landlord
housing authority had argued that susceptibility to judicial review meant a
challenge in another way was abusive and they relied upon O’Reilly v
Mackman [1983] 2 AC 237. Lord Fraser said at p509E:
It would in
my opinion be a very strange use of language to describe the respondent’s behaviour
in relation to this litigation as an abuse or misuse by him of the process of
the court. He did not select the procedure to be adopted. He is merely seeking
to defend proceedings brought against him by the appellants. In so doing he is
seeking only to exercise the ordinary right of any individual to defend an
action against him on the ground that he is not liable for the whole sum
claimed by the plaintiff.
Mr Tyrrell
points out that here the defendant did not choose the forum and that she raises
the asserted breach of duty by way of defence. It is true that the defendant
did not choose the forum, but I find it difficult to understand how the
asserted breach of duty could be an answer to a claim for possession of Flat B.
As Mr Underwood put it, the discharge of duty is not pinned to the provision of
particular premises.
However that
may be, there is, in my judgment, a more fundamental objection. The assertion
of breach of duty has as its necessary corollary an allegation of infringement
of right. If the infringed right has no existence in private law but exists
solely in public law, then the complaint is apt for judicial review and to
raise it in another way is abusive: see Cocks v Thanet District
Council [1983] 2 AC 286. Mrs Abdi is complaining that she has a right to
have suitable accommodation. Her complaint is indistinguishable from that of
the plaintiff in Ali v Tower Hamlets London Borough Council
[1992] 3 All ER 512. In that case, the homeless plaintiff had refused an offer
of accomodation because he considered it unsuitable and brought an action
against the housing authority alleging breach of statutory duty and claiming an
injunction to secure performance of the duty. This court held that county court
had no jurisdiction to entertain the action. The reasoning was that although
the performance of public law duties under Part III of the Act could give rise
to a private right, that right does not arise until performance of the duty is
completed by the allocation of accomodation adjudged suitable by the local
authority. The private right is then one simply to
agreed, said at p519e:
It then
follows that in my judgment the public law duties of Tower Hamlets were not
discharged until they had completed the process of deciding upon the suitable
accommodation which they were obliged to secure for Mr Ali. If this process was
properly carried out as a matter of public law, then the consequential private
law right of Mr Ali was simply a right to the accomodation which Tower Hamlets
had decided to be suitable.
Those
observations are binding upon this court and from them it follows that the only
private right acquired by Mrs Abdi was one to the accommodation which she
rejected. She had, and has, no other private right although she would of course
have had a sufficient locus to challenge timeously the legality of the
council’s performance of their public law function. Accordingly, in my judgment,
the arguments sought to be deployed by her would be abusive and the defence and
counterclaim should accordingly be struck out.
I would allow
the appeal in regard to the second application. I reach that conclusion with no
regret. Under the law as it at present stands, questions of suitability are
eminently for local authorities and not, subject to the supervisory
jurisdiction of the High Court, for the ordinary courts.
If the
allegations concerning breach of duty are struck out, as I think they should be,
then the preliminary point which I have already discussed is actually
determinate of this action. I would accordingly allow the appeal on the first
application as well as on the second, determine the preliminary point in favour
of the plaintiff council and accordingly make an order for possession, but
would invite comment on the terms of that order.
LEGGATT LJ and GLIDEWELL LJ agreed and did not add anything.
Appeal
allowed; order for possession granted; application for leave to appeal to the
House of Lords refused; no order as to costs save for legal aid taxation.
