Dacorum Borough Council (Claimant v Ms Chenalee Bucknall (formerly known as Ms Chenalee Acheampong) (Defendant
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 10 August 2017 |
| Neutral Citation | [2017] EWHC 2094 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2017/0031 |
| Date | 10 August 2017 |
[2017] EWHC 2094 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On Appeal from the County Court at Watford
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon. Mr Justice Popplewell
Case No: QB/2017/0031
Toby Vanhegan & Riccardo Calzavara (instructed by ARKrights Solicitors) for the Defendant/Appellant
Matt Hutchings QC & Jack Parker (instructed by Dacorum Legal Department) for the Claimant/Respondent
Hearing date: 27 June 2017
Introduction
The Defendant ("Ms Bucknall") appeals from an order made in the County Court at Watford in favour of the Claimant local authority ("the Council") for possession of 29 Ninian Road, Hemel Hempstead, Hertfordshire ("the Property"). The issue in the appeal is whether at the time of the notice to quit, she was occupying the Property "as a dwelling" within the meaning of s. 5(1A) of the Protection from Eviction Act 1977 ("the PEA"). The Judge decided that Ms Bucknall did not occupy the Property as a dwelling. He also found against her on a number of other grounds upon which she challenged the Council's claim to possession, in respect of which there is no appeal. She continues to reside at the Property pending the outcome of the appeal.
Narrative
Ms Bucknall was born on 11 March 1992. She is a single mother of a daughter born on 9 February 2014. On 9 August 2013 she applied to the Council for homelessness assistance under Part VII of the Housing Act 1996 ("the 1996 Act"). As a result of the application the Council granted her a non-secure licence of temporary accommodation at the Property by letter of 30 January 2014 enclosing a written licence agreement which she signed, pursuant to which she went into occupation of the Property on 3 February 2014. In providing such accommodation the Council was fulfilling its interim housing duty pursuant to s.188(1) of the 1996 Act.
On 18 September 2014 the Council wrote to Ms Bucknall notifying her that her application for homelessness assistance had been successful and recognising that the Council had a full housing duty. Such duty arose under s.193(2) of the 1996 Act. The letter explained that she would be offered suitable private sector accommodation but that there was a low supply of such accommodation available to the Council, with many competing demands, and that it was not possible to make an accurate prediction of when such an offer would be made; in the meantime she should continue to pay the charges and abide by the conditions of her agreement to occupy the "temporary accommodation you will be provided with". This meant, and would have been understood to mean, that she could continue to occupy the Property for the time being.
In the event it was a little under six weeks before the Council found what it regarded as suitable accommodation for her. By letter dated 27 October 2014 the Council offered her a tenancy of 20 Aragon Close, Hemel Hempstead, Hertfordshire ("the Offered Property"). On 2 February 2015 Ms Bucknall viewed the Offered Property. On 3 February 2015 she wrote to the Council refusing the offer on the grounds that it was unsuitable as a result of the problems she had with her sight. It is not clear why there was a delay between the offer in October and the viewing in February, but it is not suggested that Ms Bucknall was at fault for any such delay.
The Council treated Ms Bucknall's letter as a request for a review of the decision to offer the Offered Property as suitable alternative accommodation. By letter dated 11 February 2015 the Council notified Ms Bucknall of the outcome of the review which was that the Offered Property was suitable alternative accommodation. The letter averred that the Council's full housing duty under s.193(2) of the 1996 Act had come to an end as a result of the offer.
In the meantime on 9 February 2015 the Council served Ms Bucknall with a notice to quit the Property, stating that the licence would terminate on 9 March 2015.
On or about 30 September 2015 the Council brought the possession action in the County Court. The trial took place on 4 October 2016. Judgment was reserved and handed down on 20 January 2017.
The statutory framework
The statutory framework is set out in paragraphs [11] to [20] of Lord Hodge's judgment in R (N) v Lewisham London Borough Council [2015] AC 1259. A brief summary is all that is necessary.
The regime for local authorities housing homeless persons is now contained in Part VII of the 1996 Act. As Lord Hope explained in Hounslow LBC v Powell [2011] 2 AC 186 at [9], most residential occupiers of houses and flats owned by local authorities are "secure tenants" under Part IV of the Housing Act 1985 ("the 1995 Act"). In those cases the tenant cannot be evicted unless the landlord establishes that one of the grounds for possession listed in Schedule 2 to the 1985 Act applies, and except in some specified categories of case where suitable alternative accommodation is available, unless the court is satisfied that it is reasonable to make the order. Certain types of tenancy, however, are excluded from this regime. Amongst them are those identified in paragraph 4 of Schedule 1 to the 1985 Act which (as substituted by s.123 of and paragraph 3 of Schedule 17 to the 1996 Act) provides that a tenancy granted in pursuance of any function under Part VII of the 1996 Act, dealing with homelessness, is not a secure tenancy unless the local housing authority concerned chooses to treat it as such.
The protection from eviction legislation stemming from the abuses by private sector landlords in the 1950s and 1960s is now contained in the PEA. Section 3 of the PEA provides that in respect of premises "occupied as a dwelling" under a tenancy or (since 1998) a licence, the owner may only enforce its right to possession by obtaining a court order (save for certain excluded tenancies and licences which are not here relevant). Section 5 of the PEA requires that in the case of properties let or licensed for occupation "as a dwelling" a notice to quit must be served giving at least 28 days' notice and containing particulars prescribed by the Notices to Quit etc (Prescribed Information) Regulations 1988. The particulars required are advice to the tenant or licensee that they cannot be evicted without a possession order by the court; and that if they are unsure whether they are entitled to remain in possession after the notice to quit expires they can obtain advice from a solicitor; that help with the cost may be available under the Legal Aid Scheme; and that they should also be able to obtain information from a Citizens' Advice Bureau, a Housing Aid Centre or a rent officer.
The upshot is that although tenancies granted under Part VII of the 1996 Act are not secure tenancies (unless the local housing authority has notified the tenant that the tenancy is to be regarded as a secure tenancy), so that the local authority is not required under domestic law to establish any particular ground for the termination of the tenancy when seeking possession from a tenant, there are procedural protections in the requirement under s.3 and s.5 of the PEA that an order of the court must be obtained in order to recover possession, and that notice to quit must be given with adequate notice and in the form stipulated by the Act and regulations. As already observed, those procedural protections apply equally where occupation is as a licensee as they do if under a tenancy, but in either case they only apply where the property is let or licensed "as a dwelling".
Although the notice to quit served on Ms Bucknall gave 4 weeks' notice, it did not contain the prescribed advice; accordingly the notice would be deficient in not containing the particulars required by s.5(1A) of the PEA if at the time Ms Bucknall were occupying the Property "as a dwelling".
Interim and full housing duty
Where a local authority has reason to believe that an applicant may be homeless or threatened with homelessness it must make inquiries as to whether the applicant is eligible for assistance and whether it is under a duty to provide accommodation to the applicant: s. 184 of the 1996 Act. As Ms Bucknall's case illustrates, this can take some time. In the meantime the local authority may be obliged to find accommodation for those in priority need pending the outcome of the investigation under s. 188(1) of the 1996 Act which provides:
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
This is often referred to as the interim housing duty.
In R (N) v Lewisham, the Supreme Court held that so long as an applicant was being housed pursuant to the interim housing duty, he or she was not occupying premises provided by the local authority "as a dwelling". I shall return to the reasoning in due course.
There are a number of possible results of a s. 184 investigation. If the local housing authority is satisfied that the applicant is homeless, eligible for assistance but homeless intentionally, its duty, if the applicant has a priority need, is (a) to secure that accommodation is available for a period to give a reasonable opportunity of securing accommodation for occupation and (b) to provide advice and assistance in attempts to secure accommodation: section 190(2). If not satisfied that the applicant has a priority need, the authority's duty is confined to (b) above: section 190(3). If the authority is satisfied that the applicant is homeless and...
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