Marian Dahir Mohamed v The Mayor & Burgesses of the London Borough of Barnet
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 1012 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2018/0292 |
| Date | 17 April 2019 |
[2019] EWHC 1012 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Thornton DBE
Case No: QB/2018/0292
Matthew Lee (instructed by Duncan Lewis Solicitors) for the Applicant
Jane Hodgson (instructed by HB Public Law) for the Respondent
Hearing date: 28 March 2019
Approved Judgment
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Introduction
This is an appeal against a decision by HHJ Luba QC at the Central London County Court, following the trial of a preliminary issue in relation to proceedings for possession of residential premises sought by the London Borough of Barnet (“the Council”). By his decision, dated 26 September 2018, the Judge concluded that the agreement for occupation between the Appellant, Ms Mohamed, and the Council is not an agreement that attracts the security of tenure provisions of the Housing Act 1985.
The appeal raises the issue of whether the occupation of accommodation by Ms Mohamed has secure status for the purposes of Part IV of the Housing Act 1985 or whether, as the Council contends, it is a simple non-protected arrangement. This turns on the construction of paragraph 6b) of Schedule 1 to the Housing Act 1985. In particular; does paragraph 6b) require a single provision providing for vacant possession on expiry of a specified period or when required? Or, is it sufficient, in the present case, to simply provide for possession ‘when required’?
Background
The facts were comprehensively set out by HHJ Luba in his judgment at paragraphs [6] to [17]. In summary, in 2016 Ms Mohamed found herself to be homeless and approached the Council seeking assistance for herself and her daughter. The Council found Ms Mohamed to be intentionally homeless and therefore owed no housing duty under the Housing Act 1996. However, pursuant to the Council's duties under the Children Act 1989 it provided Ms Mohamed with accommodation at 38B Maybury Gardens (“the property”).
The property in question is owned by a private owner, Mr Kumar, who had engaged the services of an agent, Rent Connect to utilise the property to his advantage. Accordingly, on 7 October 2015, Rent Connect, on behalf of Mr Camilla, entered into a licence agreement pursuant to which the property was let by Rent Connect to the Council for the purpose of providing temporary accommodation. The agreement was for an initial period of 12 months and thereafter from month to month (“the 2015 Licence Agreement”).
In April 2017, the property was provided to Ms Mohamed by the Council. It was provided to her pursuant to a written agreement described as a ‘Temporary Accommodation Agreement’ dated 7 April 2017. On the same day, the Council appears to have entered into a supplemental agreement with Rent Connect, described as a “Supplemental Agreement – booking licence to occupy”.
Pursuant to the agreement she made with the Council, Ms Mohamed moved in to occupy the premises. The Council later took the view that it should recover possession. It served a Notice to Quit on 26 February 2018. The Notice to Quit expired on 25 March 2018, after which the Council brought possession proceedings in the Central London County Court.
At the trial of the preliminary issue on 26 September 2018, HHJ Luba found for the Council on the issue of security of tenure. However, he dismissed the Council's claim for possession on grounds of failure of service of the Notice to Quit. The Council has since served a further Notice to Quit, the effectiveness of which depends upon the outcome of this appeal.
The licence agreements between Rent Connect and the Council
Clause 2.2 of the 2015 Licence Agreement provides that the Licensee (the Council) has agreed to hold the Property on licence for the Licence Period. The Licence period is defined as “ an initial period of 12 months from and including Licence Rent Commencement Date and thereafter from month to month until determined in accordance with Clause 5”. The Licence Rent Commencement Date is defined as ‘from and including 7 October 2015’.
Clause 2.3 provides that the Licensee is permitted to use the Property for the Permitted Use. The Permitted Use is defined as the:
“… use of the Property for the purpose of providing temporary housing accommodation in accordance with either the Licensee's Homelessness Prevention Strategy or under the provisions of Part VII of the Housing Act 1996.”
Clause 5 provides as follows:
“5.1 This Agreement is effective from the Licence Commencement Date until the expiry of any Notice of Termination given by either of the Parties
5.2 Either Party may terminate this Licence by giving the other not less than 14 days' notice in writing of its intention and upon termination; the Licensee will make arrangements with the Licensor to jointly check the condition of Property and its contents
5.3 Recovering Possession
Where the Licensee wishes to terminate the Licence and the property is vacant notice to terminate may be by way of a telephone message, followed by a written Notice to Terminate delivered by post or email. The Licensee will use its best endeavour to inform the Licensor in advance when it is aware of the Property becoming vacant and whether the Licensee is likely to want to continue to Licence and the accommodation
5.4 Termination by the Licensee
The Licensee may immediately terminate this Licence if the Licensor has not met repairing obligations at clause 3.2 or when the void work required is longer than 2 working days. The Licensee will notify the Licensor of their intention to terminate the Licence.
5.5 Termination by the Licensor
Where the Licensor wishes to terminate the Licence, he may do so by way of a telephone message followed by a written Notice to Terminate AND thereupon all interest of the Licensee and the Occupant in respect of the Property shall cease and determine at the expiry of the notice period.”
The termination provisions in the 2017 Supplemental Agreement provide that:
5 Termination
5.1 This agreement is effective from the 07 of April 2017 until the date of notice of termination.
5.2 The initial Notice to terminate will be by way of a telephone message, followed by written Notice to Terminate by email.
5.3 In the event that the contact [sic] is terminated for whatever reason, this agreement will terminate with effect from the date of the termination of the contract.
5.4 The exercise of rights to terminate the agreement shall not affect any existing rights of obligations of any of the parties in the Contract.”
HHJ Luba QC was critical of the drafting of the licence agreements, describing the 2015 agreement as ‘ unsatisfactory to say the least’ and the 2017 Supplemental agreement as ‘ even more poorly drafted’. Before this Court, Ms Hodgson accepted the criticisms on behalf of the Council but contended they had no material bearing on the issues for this Court. Although the issue was live before HHJ Luba, both Counsel helpfully agreed that this Court should proceed on the basis of the 2015 agreement, rather than the 2017 agreement, and I do so.
The licence to occupy between Ms Mohamed and the Council
The licence to occupy entered into by Ms Mohamed and the Council provides for the provision of temporary accommodation at 38 Maybury Gardens from 7 April 2017 with a nightly accommodation charge and states that the agreement is not intended to create the relationship of landlord and tenant between the parties. Ms Mohamed will not be entitled to any statutory security of tenure and the accommodation can be terminated at any time by the Council by written or verbal notice or by notice to quit served on Ms Mohamed.
It was common ground that the agreements between the Council and Rent Connect are the material agreements for the purposes of considering paragraph 6b) of Schedule 1 to the Housing Act 1985, not the agreement between Ms Mohamed and the Council.
The judgment below
HHJ Luba gave a detailed extempore judgement. His conclusions are set out at paragraphs [40]–[52], as follows:
Conclusion
40. I am faced with what, at first impression, are 2 conflicting decisions of the Court of Appeal.
…
41. Mr Lee, as I understood it, simply submitted that the Hickey case, being the most recent decision, was authoritative. Moreover, it had not been reached per incuriam because, as the Court of Appeal indicates at para 19 of its judgment, it had had regard to the judgment of Mann LJ in Abdi. In the event, for reasons given by Sir Martin Nourse at paragraph 19, the Court of Appeal had felt able to distinguish the case of Abdi as being “a case where the facts were different”. Of course the facts are different in all cases, but Sir Martin Nourse continued, “Having carefully considered the observations of Mann LJ, I am of the opinion that, while they are confirmatory of the views I have expressed in relation to sub-paragraph a) they are not of assistance in relation to sub-paragraph b).
42. Unfortunately, Sir Martin Nourse does not go on to explain why the Court of Appeal's decision in Abdi is not of assistance on the application of Sched 1 paragraph 6b) in a case such as the instant case.
43. Ms Hodgson, advancing an argument based on exchanges taking place between the court and the bar, seeks to distinguish Hickey in this way. She points out that Hickey is a case in which there was provision on the face of the agreement for termination at the end of a specified period, namely at the end of the term of the lease. The problem in Hickey was that there was no further provision allowing termination otherwise by the owner, or by the “lessor”...
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