Possession proceedings – Tenancy granted to respondent by local housing authority in discharge of duties to homeless under Part 7 of Housing Act 1996 – Authority itself holding property on tenancy from private landlord for use as temporary accommodation – Whether respondent’s tenancy excepted from secure tenancy regime – Paras 4 and 6 of Schedule 1 to Housing Act 1985 – Whether para 4 exception applying where authority holding property from private landlord – Whether paras 4 and 6 mutually exclusive – Appeal allowed
The respondent was a tenant of the appellant council, occupying a flat let to him in pursuance of the council’s duties, under Part 7 of the Housing Act 1996, to house homeless persons. The appellants held the flat on a tenancy from a housing association, which had let the premises to them for use as temporary accommodation for the homeless. The appellants subsequently offered the respondent another property that they considered to be suitable alternative accommodation. When the respondent turned down that offer, the appellants took the view that their housing duty was discharged and served notice to quit on the respondent.
In possession proceedings brought by the appellants, the district judge granted a possession order on the basis that the respondent’s tenancy was not a secure tenancy since it fell within the exception in para 4 of Schedule 1 to the Housing Act 1985. Para 4 provided that a tenancy granted in pursuance of any function under Part 7 of the 1996 Act was not a secure tenancy unless the authority had notified the tenant to the contrary. The respondent’s appeal against that decision was allowed by a circuit judge. The judge held that the case could not fall within para 4 because the appellants held the flat on a tenancy from a private landlord, such that the applicable exception, if any, was para 6, which dealt with circumstances where the dwelling in question had been let to the landlord with vacant possession for use as temporary accommodation. The judge found that the para 6 exception was not made out because the requirements of para 6(b), concerning the terms upon which the premises had been let to the appellants, had not been met. In reaching his conclusion, the judge held that if paras 4 and 6 were not construed as being as mutually exclusive, para 6 would be rendered otiose. The appellants appealed; although that appeal was not opposed by the respondent, the court considered it appropriate to give full reasons for its decision.
Held: The appeal was allowed.
The para 4 exception could apply to a tenancy of a property that had been leased to a local housing authority (LHA) by a private landlord for the purposes of discharging the authority’s duties under Part 7 of the 1996 Act. The respondent’s tenancy plainly fell within the wording of para 4. The unqualified words of that exception could not be cut down by necessary implication from para 6, and the two paras were not mutually exclusive. Although para 4 would apply to some situations that also fell within para 6, this did not render para 6 otiose. Para 6 would apply, and para 4 would not, in circumstances where the landlord under the relevant tenancy was not an LHA owing duties under the 1996 Act, or where the landlords were an LHA but were not acting in pursuance of their duties under the homelessness legislation: for example, where they were providing accommodation for children under the age of 18 pursuant to section 17 of the Children Act 1989. Both exceptions served a read purpose.
Clive Jones (instructed by the legal department of Westminster City Council) appeared for the appellants; Kevin Gannon (instructed by Paddington Law Centre) appeared for the respondent.
Sally Dobson, barrister
