Desnousse v Newham London Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Tuckey,Lord Justice Pill |
| Judgment Date | 17 May 2006 |
| Neutral Citation | [2006] EWCA Civ 547 |
| Docket Number | Case No: B2 2005/0078 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2006 |
[2006] EWCA Civ 547
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
HIS HONOUR JUDGE ROBERTS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Tuckey and
Lord Justice Lloyd
Case No: B2 2005/0078
4BO02364
Andrew Arden Q.C. and Dominic Preston instructed by Ania Kahn Partnership for the Appellant
David Matthias instructed by Helen Sidwell, Head of Legal Services,
Newham Borough Council for the First and Second Respondents and by Messrs N A Evans for the Third Respondent
Introduction
This appeal is concerned with the interrelationship between the provisions of Part 7 of the Housing Act 1996 governing the duties of local housing authorities towards persons who are or may be homeless, on the one hand, and those of the Protection from Eviction Act 1977 on the other. The 1996 Act, as amended, is the current legislation which deals with a subject first tackled, in terms of legislation, by the Housing (Homeless Persons) Act 1977.
In summary, if a local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they must make enquiries as to whether the applicant is eligible for assistance and if so what duty is owed to him under the Act (section 184) . If they have reason to believe that the applicant may be homeless, eligible for assistance and in priority need, the authority must secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the Act (section 188) . If, following enquiries, the authority are satisfied that the applicant is homeless and eligible for assistance, and has priority need, but has become homeless intentionally, they must secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation (section 190) . If, on the other hand, they are satisfied that he is homeless, eligible for assistance, and in priority need, and not satisfied that he has become homeless intentionally, then they must secure that accommodation is made available on a longer-term basis (section 193) .
The issue in this case arises from the situation in which a housing authority have decided that an applicant, though homeless, eligible for assistance and in priority need, became homeless intentionally so that, once the period of temporary accommodation required under section 190 has come to an end, they are under no further duty to secure that accommodation is available for the applicant. The question is whether, before the applicant can be evicted from the accommodation whose availability has been secured in accordance with the authority's duties under the Act, the provisions of section 3 of the Protection from Eviction Act 1977 have to be complied with. If so, the right to possession can only be enforced (if it has to be) by court proceedings for an order for possession.
The housing authority in the present case contend that the 1977 Act does not apply in this situation, and that this court has so decided in a previous decision: Mohamed v. Manek and Royal Borough of Kensington and Chelsea (1995) 27 HLR 439, which I will refer to as Mohamed v. Manek. The judge so held. The Appellant argues that this is wrong and that Mohamed v. Manek is not a binding authority to that effect.
The facts
In October 2003 Mrs Roma Desnousse, the Claimant and Appellant, approached the Homeless Persons Unit of the London Borough of Newham, the First Defendant ("Newham") , on the basis that she was, or was about to become, homeless, upon being evicted from a council flat of which her husband had been the tenant. On 18 November 2003 the Second Defendant, PCHA, which manages accommodation for homeless persons on behalf of Newham, made arrangements for her, and her two children, one aged 8 and the other a baby, to be accommodated in bed and breakfast accommodation at Redbridge Lodge in Ilford. On 23 December 2003 she and the children were transferred to self-contained accommodation, known as Annex accommodation, at Norfolk Road in Ilford, which was managed on behalf of its owner by the Third Defendant, Veni Properties Ltd ("Veni") . The identity of Veni's principal is not known and does not matter. I will refer to Veni as if it were the owner. The accommodation consists of a self-contained flat with two bedrooms, kitchen and bathroom. As the judge did, I will refer to it as the Flat.
The agreement dated 23 December 2003 is between PCHA and the Appellant. It is headed "Bed and Breakfast Agreement and Initial Housing Benefit Claim". In a number of respects, it is more apt for the traditional kind of bed and breakfast accommodation for which it was no doubt originally designed. By signing it the Appellant accepted that she had been placed in the Flat by Newham, the Flat being managed by PCHA. She had to pay a charge of £446.32 per week, and a minimum of £1.19 per week for cooking facilities and £12.25 per week for services. If her claim to housing benefit was successful, it would cover all charges except the £1.19, which she had to pay directly to PCHA. The agreement had a number of references to what she would be doing under it: the Flat was referred to as "temporary accommodation", and the agreement spoke of her "staying at", "residing at" and "occupying" the accommodation provided. It does not seem to me that any light is cast on the questions relevant to this case by these various references.
PCHA's records show that, on 23 December, the Appellant having signed the form of agreement to which I have referred, PCHA booked the Flat for the Appellant's accommodation from that date until further notice, by sending a booking form to Veni, the cost to be billed to Newham.
On 18 May 2004 Newham, having completed its investigations into the Appellant's position, informed her in a letter that it was satisfied that she was eligible for assistance, homeless and in priority need, but also that she had rendered herself intentionally homeless, for reasons which were explained in the letter. She was told that her accommodation booking would be cancelled on 14 June, and she was advised to seek advice and assistance in order to obtain alternative suitable accommodation. Veni was also told of the cancellation of the booking.
The Appellant then instructed solicitors, who wrote to Newham, PCHA and Veni to say that she could not be evicted from the property without a court order being obtained first. She discovered that Veni were threatening to proceed without a court order. Her solicitors obtained an interim injunction from the Bow County Court against Newham, PCHA and Veni restraining them from evicting her without an order. This was continued at a later hearing on notice. Her claim for a permanent injunction came to trial in November 2004 before His Honour Judge Roberts. The case proceeded on the basis that Veni was the "owner" of the Flat for the purposes of the Protection from Eviction Act, rather than either Newham or PCHA. On 7 December 2004 the judge gave judgment dismissing her claim, but he granted permission to appeal. By the appeal the Appellant seeks to have the judge's refusal of an injunction against Veni set aside. Newham and PCHA were joined as Respondents to the appeal, as I understand it, at their own request. The Appellant had in the meantime also exercised her statutory right to call for a review of Newham's decision that she was intentionally homeless and, when this review confirmed the previous decision, to appeal to the county court. During the hearing we were told that the appeal process was still under way.
After judgment had been reserved, however, the court was informed that the Appellant had moved out of the Flat voluntarily since the hearing. Accordingly, as between the parties, the only remaining issue is one of costs. On the other hand the point is of general importance to local housing authorities and to those for whom they arrange accommodation under section 188(1) of the 1996 Act.
Mohamed v. Manek – the facts
In 1994 Mr Ezzeldin Amr Mohamed applied to Kensington and Chelsea borough council for accommodation, claiming to be homeless and in priority need. The council arranged for him to be housed in a hotel owned by a Mr Manek. There he had a room of his own, with a separate bathroom and lavatory, and shared use of a kitchen. Three days later the council had completed their investigations, and informed him that they were satisfied that he was homeless but that he was not in priority need, and that his accommodation arrangement would be terminated a few days later. He was given a little more time in order to allow for a challenge in court. He started proceedings in the county court seeking an injunction against being evicted without a court order. Such an injunction was granted, on an interim basis, against Mr Manek and the council. The council appealed, but Mr Manek did not.
The council's appeal was allowed by the Court of Appeal. On behalf of the Respondents to the present appeal, it is argued that the decision in that case concludes the present appeal, as a binding authority on the point. For the Appellant it is argued that Mohamed v. Manek is not a binding authority, as having been decided per incuriam, or that its binding effect does not affect the facts of the present case, or that it has ceased to be binding because of changes in the relevant legislation and...
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...inquiries. This meant an authority did not have to make an application for an order for possession in such cases. In Desnousse v Newham London Borough Council [2006] EWCA Civ 547, [2006] QB 831, this court concluded that Manek was still binding despite subsequent legislative changes and de......
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