R CN v London Borough of Lewisham The Secretary of State for Communities and Local Government (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Floyd,Lord Justice Moses |
| Judgment Date | 11 July 2013 |
| Neutral Citation | [2013] EWCA Civ 805 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/1856 & C1/2013/1504 |
| Date | 11 July 2013 |
[2013] EWCA Civ 805
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Philip Mott QC (sitting as a Deputy Judge of the High Court)
CO/4797/2012
AND
IN THE MATTER OF A CLAIM FOR
JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lord Justice Kitchin
and
Lord Justice Floyd
Case No: C1/2012/1856 & C1/2013/1504
and
and
Andrew Arden QC and Toby Vanhegan (instructed by TV Edwards LLP) for the Appellant in the first case and for the Claimant in the second case
Matt Hutchings and Jennifer Oscroft (instructed by London Borough of Lewisham Legal Department) for the Respondent in the first case and (instructed by London Borough of Newham Legal Department) for the Defendant in the second case
Martin Chamberlain QC (instructed by The Treasury Solicitor) for the Secretary of State for Communities and Local Government
Hearing dates: 10 and 11 June 2013
Introduction
In Mohammed v Manek and Royal Borough of Kensington and Chelsea (1995) 27 HLR 439, this court held that, as a matter of construction of s.3(2B) of the Protection from Eviction Act 1977 ("the 1977 Act"), the expression "occupied as a dwelling under a licence" does not apply to temporary accommodation provided to an applicant for assistance on the basis of homelessness pursuant to an authority's interim duty to house such an applicant while they make further 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 decisions of the House of Lords. By a majority, this court further held that this reading of the 1977 Act was not inconsistent with the rights of an occupier under the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
The central issue on this appeal is whether the decisions in Manek and Desnousse continue to bind this court in the light of the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186.
The facts
(a) The case of CN
CN was born on 3 August 1994. In August 2009 CN's mother, JN, applied to the London Borough of Lewisham ("Lewisham") for assistance under Part VII of the Housing Act 1996 ("the 1996 Act"). Lewisham accepted that it owed to JN a full housing duty under s.193(2) and arranged for Hyde Housing Association to grant to her an assured shorthold tenancy of 54 Elthruda Road, London SE13.
Unfortunately JN and her husband were unable to pay the rent and in November 2011 the family were evicted. Shortly thereafter, JN once again approached Lewisham for assistance. The family were provided with temporary accommodation under s.188(1) of the 1996 Act at 57 Uplands Road, London SE22 pending inquiries under s.184(1) and a decision under s.184(3) as to whether Lewisham owed to JN a duty and, if so, the extent of it. This property was privately owned by a Mr Gough but there is no dispute that it was made available to JN and her family on the basis of a temporary licence agreement with Lewisham, which itself had the benefit of a head licence from Mr Gough.
By letter dated 15 December 2011 Lewisham notified JN that it had decided she was homeless and in priority need but that she had become intentionally homeless from 54 Elthruda Road as a result of her failure to pay the rent. Accordingly, it continued, it no longer owed to her the full housing duty under s.193(2). It indicated it would, however, allow her to continue to reside at 57 Uplands Road for a further 28 days and would also provide her with advice and assistance to find alternative accommodation. At the same time it referred her to its Homeless Families Floating Support Service for a needs assessment. That assessment was carried out on 12 January 2012 and it concluded that the family did not have any support needs in areas to which this particular service was directed.
JN thereupon requested a review of the decision under s.202 and instructed an experienced firm of solicitors who have represented her ever since. On 27 March 2012, Lewisham issued its review decision which confirmed the original decision that JN was indeed intentionally homeless and it had discharged its duty to her. She was told that she must leave 57 Uplands Road within a further period of 28 days but that she was entitled to contact Lewisham's Housing Options Centre for assistance in obtaining alternative accommodation in the private sector. Finally she was notified of her right to appeal on a point of law, which she has chosen not to do.
On 2 April 2012 JN's solicitors requested Lewisham to carry out an assessment of CN under the Children Act 1989. On 12 April Lewisham's Housing Reviews Officer, Mr Alex Clarke, wrote to Lewisham's social services department, informing it of the adverse decision, the family's temporary address and the proposed eviction date, and identifying CN as a dependent child in accordance with its duty under s.213A of the 1996 Act.
Over the course of the next few days JN's solicitors corresponded with Lewisham, in the course of which Lewisham reiterated that JN and her husband had been invited to attend the Housing Options Centre, but that they had not yet done so. It also explained that the proposed eviction date was now 24 April 2012, and that it did not consider it was required to obtain a possession order before the eviction could take place.
JN's solicitors responded that Lewisham should not evict the family until the social services department had conducted an assessment of CN, and that Lewisham should in any event obtain a possession order.
Eventually, on 23 April 2012, JN and her family did indeed attend the Housing Options Centre and also visited the children's services section of Lewisham's social services department. An initial assessment of CN was immediately undertaken and, on the family's return to the Housing Options Centre, they were provided with information about renting in the private sector and housing benefit. Shortly afterwards, the assessment by the children's services department was completed and it concluded that CN was in good health and had no unmet emotional or development needs other than for appropriate housing. However, the assessment continued, if the family had not secured alternative accommodation by the date of their departure from 57 Uplands Road, Lewisham would conclude that CN was a child in need within the meaning of s.17 of the Children Act 1989 and would provide him with accommodation. In the meantime Lewisham extended the family's licence to remain at 57 Uplands Road for a further short period.
On 5 May 2012 CN issued these judicial review proceedings seeking an order that Lewisham should continue to accommodate CN and his family at 57 Uplands Road until it had obtained and executed a possession order. He also challenged Lewisham's assessment under the Children Act 1989. This latter challenge is no longer pursued and I need say no more about it.
On 9 May 2012 the application was considered by Wyn Williams J on the papers and he made an anonymity order in respect of both CN and JN. More substantively, he made an order requiring Lewisham to continue to accommodate CN and his family at 57 Uplands Road until 14 May 2012.
On 15 May 2012 the injunction was continued by Walker J for a further period of three days, primarily, it would seem, on the basis that CN was about to sit his A levels and had secured a place at Brunel University conditional on his results in those examinations. On 17 May 2012 Silber J ordered that the claim be listed for an oral permission hearing and that the injunction should continue in the meantime.
The matter finally came before Mr Phillip Mott QC sitting as a Deputy High Court Judge who, in his judgment delivered on 12 July 2012, observed that CN and his family had remained at 57 Uplands Road throughout the period of his A level exams and that he had now left school and hoped to go to university; that CN and his family plainly occupied 57 Uplands Road under a licence rather than a tenancy; that in the circumstances he was bound by the decision in Desnousse to hold that the 1977 Act did not apply and that the statutory scheme was compliant with Article 8 of the Convention; and that Lewisham did not therefore need to commence proceedings in the county court for a possession order. He also found that no Article 8 point could arise on the facts of this case in any event.
The judge refused permission to appeal but, upon application to this court, Davis LJ granted CN permission to apply for judicial review and directed that the application should be retained in this court.
(b) The case of ZH
ZH was born on 23 March 2012. On 16 August 2010 Dane Housing Group granted to ZH's mother, FI, an assured tenancy of 22 Geraint Street in Liverpool. On 30 October 2011, and for reasons that were not explained to us, FI relinquished her tenancy and thereafter FI lived with her sister and their aunt on a temporary basis at Flat 6, The Sidings, Pier Road, London E16. It was while she was living there that ZH was born.
Just a few months later, in August 2012, FI's aunt...
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