R (on the applications of ZH and CN) v London Boroughs of Newham & Lewisham [2014] UKSC 62

Two homeless applicants, housed temporarily by local authorities under section 188 of the Housing Act 1996, challenged their eviction without court orders. The Supreme Court held, by majority, that such interim accommodation falls outside the Protection from Eviction Act 1977 and that eviction without a court order does not breach Article 8 ECHR.

Facts

The appeals concerned two homeless applicants, CN and ZH, whose mothers (JN and FI) had applied to the London Boroughs of Lewisham and Newham respectively for assistance under Part VII of the Housing Act 1996. Both authorities provided interim accommodation under section 188 of the 1996 Act pending inquiries into their homelessness applications. In each case, the authority ultimately decided that the applicant had become homeless intentionally and gave notice to vacate the temporary accommodation without obtaining a court order for possession. Lewisham had granted JN a nightly-paid licence of a five-bedroom shared house; Newham had granted FI a day-to-day licence of a two-bedroom self-contained flat provided by a private company. The appellants challenged the evictions by judicial review, arguing that a court order was required and that eviction without one breached Article 8 ECHR.

Issues

Two issues were identified: (i) whether the Protection from Eviction Act 1977 (PEA 1977) requires a local housing authority to obtain a court order before recovering possession of interim accommodation provided under section 188 of the 1996 Act; and (ii) whether eviction without a court order in such circumstances violates Article 8 ECHR.

Arguments

Appellants

Mr Arden QC submitted that section 3(2B) of PEA 1977 requires a court order to recover possession of premises occupied as a dwelling under a licence, and that Parliament had comprehensively listed excluded tenancies and licences in section 3A. Accommodation provided under section 188 was not among the exclusions and therefore fell within PEA 1977’s protection. He also relied on the meaning of “dwelling” in housing benefit legislation and drew inferences from other statutes expressly excluding Part VII accommodation from security of tenure but not from PEA 1977. On Article 8, he argued that a public authority must always obtain a court order before evicting a person from his or her home.

Respondents and Secretary of State

The respondents submitted that temporary accommodation under section 188 was not licensed “as a dwelling” because it lacked the settled quality of home-making required, relying on Mohamed v Manek and Desnousse v Newham. They emphasised the transient, day-to-day nature of the licences and the practical consequences for local authorities of requiring court orders. On Article 8, they argued that the statutory review and appeal procedures, together with judicial review, provided sufficient procedural safeguards.

Judgment

First issue (majority: Lord Hodge, Lord Wilson, Lord Clarke, Lord Toulson, Lord Carnwath)

The majority held that the interim accommodation provided under section 188 of the 1996 Act was not licensed “as a dwelling” for the purposes of section 3 of PEA 1977. Lord Hodge reasoned that the word “dwelling” in PEA 1977 carried the same meaning as under the Rent Acts, connoting a degree of settled occupation amounting to a home. Three features pointed against the licences being for occupation as a dwelling: (i) the statutory context of Part VII, under which a person remains “homeless” while occupying interim accommodation and the authority may move the applicant between properties; (ii) the day-to-day or nightly nature of the licences; and (iii) the significant practical impediments that would arise if PEA 1977 applied. The exclusions in section 3A did not alter the meaning of “dwelling”; they were included for the avoidance of doubt. Lord Carnwath added a concurring judgment endorsing the relevance of settled practice as an aid to statutory interpretation.

First issue (dissent: Lord Neuberger and Lady Hale)

Lord Neuberger and Lady Hale would have allowed the appeals on the first issue. They considered that “dwelling” was an ordinary English word of wide import, at least as broad as “residence”, and that a person occupying accommodation under section 188 as their only home was plainly dwelling there, even if the occupation was short-term and precarious. They found support in Uratemp Ventures Ltd v Collins and Mohamed v Hammersmith and Fulham LBC. The exclusions in section 3A of PEA 1977 supported rather than contradicted this reading, as several excluded categories would otherwise have fallen within the protection. Both dissenters rejected reliance on the settled practice principle in the absence of statutory re-enactment.

Second issue (unanimous)

The Court unanimously held that eviction without a court order did not violate Article 8 ECHR. Lord Hodge reasoned that the procedural safeguards in the 1996 Act, including the section 202 review, the section 204 appeal to the county court (which could be interpreted to include a proportionality assessment following Manchester City Council v Pinnock and Hounslow LBC v Powell), the Children Act 1989 assessment where relevant, and the availability of judicial review, were sufficient to satisfy Article 8’s procedural requirements. Recovery of possession pursued the legitimate aim of protecting the rights of others and enabling scarce housing resources to be allocated to those still awaiting a decision, and was proportionate.

Implications

The decision confirms that temporary accommodation provided by local housing authorities under section 188 (and analogous interim provisions in sections 188(3), 190(2), 200(1) and 204(4)) of the Housing Act 1996 falls outside the protection of sections 3 and 5 of PEA 1977. Local authorities and private sector providers of such accommodation may therefore recover possession without first obtaining a court order, provided appropriate notice is given in accordance with the Homelessness Code of Guidance. The judgment reinforces the earlier Court of Appeal authorities in Mohamed v Manek and Desnousse v Newham.

The Court also clarified that a section 204 appeal to the county court can, following Pinnock and Powell, be used to raise a proportionality challenge to eviction from interim accommodation, and that judicial review remains available. This provides an important procedural safeguard for occupants while preserving the ability of local authorities to manage limited housing stock efficiently.

Lord Carnwath’s concurring judgment on the significance of settled practice as an aid to statutory interpretation, and the divergent views expressed by Lord Neuberger and Lady Hale, illustrate an important ongoing debate about the constitutional propriety of upholding a judicial interpretation on the basis of long-standing acceptance rather than the natural meaning of statutory words. The decision matters to local housing authorities, homeless applicants, private accommodation providers, and housing practitioners, all of whom now have clearer guidance on the legal framework governing the recovery of interim homelessness accommodation.

Verdict: Both appeals dismissed. The Supreme Court held (Lord Neuberger and Lady Hale dissenting on the first issue) that interim accommodation provided under section 188 of the Housing Act 1996 is not licensed as a dwelling for the purposes of the Protection from Eviction Act 1977 and unanimously held that eviction without a court order in such circumstances does not violate Article 8 ECHR.

Source: R (on the applications of ZH and CN) v London Boroughs of Newham & Lewisham [2014] UKSC 62