R (on the application of CN) v Lewisham London Borough Council; ; R (on the application of ZH) v Newham London Borough Council (Secretary of State for Communities and Local Government, interested party)
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Toulson,Lord Hodge,Lord Clarke,Lord Wilson,Lord Carnwath,Lady Hale |
| Judgment Date | 12 November 2014 |
| Neutral Citation | [2014] UKSC 62 |
| Date | 12 November 2014 |
| Court | Supreme Court |
and
[2014] UKSC 62
Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Toulson
Lord Hodge
Appellants
Andrew Arden QC Toby Vanhegan Justin Bates Senay Nihat
(Instructed by TV Edwards LLP)
Respondents
Matt Hutchings Jennifer Oscroft
(Instructed by Head of Legal Services LB of Newham and LB of Lewisham)
Intervener
Martin Chamberlain QC Oliver Jones
(Instructed by Treasury Solicitors)
Heard on 23, 24 and 26 June 2014
Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agree)
The issues in this appeal are (i) whether the Protection from Eviction Act 1977 ("PEA 1977") requires a local housing authority to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under Part VII of the Housing Act 1996 ("the 1996 Act"), and (ii) whether a public authority, which evicts such a person when its statutory duty to provide such interim accommodation ceases without first obtaining a court order for possession, violates that person's rights under article 8 of the European Convention on Human Rights ("ECHR").
CN was born on 3 August 1994. His mother ("JN") applied to the London Borough of Lewisham ("Lewisham") for assistance under Part VII of the 1996 Act in August 2009 and Lewisham arranged for a housing association to grant her an assured shorthold tenancy which commenced in May 2010. JN and her family became homeless in November 2011 after the housing association obtained an order for possession because of arrears of rent. JN again applied to Lewisham for homelessness assistance. On 15 November 2011 Lewisham, fulfilling its duty under section 188 of the 1996 Act, granted JN a licence of a five-bedroom house with communal kitchen and bathroom pending its inquiries under section 184 of that Act as to whether she was eligible for assistance and, if so, what duty, if any, was owed to her. The property was privately owned. Its owner licensed it to Lewisham for use as temporary accommodation for homeless persons.
On 15 December 2011 Lewisham wrote to JN to intimate its decision under section 184 of the 1996 Act ("the section 184 decision"). It stated that its duty to house her had come to an end because she had become homeless intentionally from the housing association property. Lewisham informed her that it would terminate the temporary accommodation within 28 days and that she would be served with a notice to vacate shortly. It stated that it was under a duty to provide her with advice and assistance in her efforts to secure accommodation and invited her to contact its housing options centre for that purpose. The letter also informed her of her right to request a review under section 202 of the 1996 Act and enclosed a leaflet explaining the review process. Lewisham's Homeless Families Floating Support Service carried out a needs assessment on 12 January 2012 and concluded that the family did not need the support which that service provided.
On 5 March 2012 JN requested a review of the section 184 decision and instructed solicitors to represent her. Lewisham extended her interim accommodation pending the outcome of the review. On 27 March 2012 Lewisham wrote to inform her that the review officer had upheld the section 184 decision and had found that she had become homeless intentionally. It intimated that its duty to secure accommodation for her had come to an end and gave her 28 days to leave the property. Lewisham informed her that she was entitled to advice and assistance from its housing options centre and that she could appeal to the county court on a point of law against the outcome of the section 202 review. JN chose not to do so.
Thereafter JN's solicitors requested an assessment under the Children Act 1989. On 29 April 2012 the solicitors wrote to challenge Lewisham's decision to evict her without a court order and before completing an assessment under the Children Act 1989. Lewisham extended the provision of temporary accommodation until the outcome of that assessment. Lewisham wrote on 30 April 2012 with a copy of the assessment and intimated that the accommodation would cease on 1 May 2012. In response, CN issued the judicial review claim which has given rise to the appeal to this court.
ZH was born on 23 March 2012. His mother ("FI") was born in 1991 and has a younger sister ("MI") who was born in 1994. FI had an assured tenancy of a house in Liverpool. She left Liverpool in October 2011 to live with her aunt in London. In August 2012 her aunt asked FI to leave and on 7 September 2012 FI applied to the London Borough of Newham ("Newham") for assistance under Part VII of the 1996 Act. In a letter dated 26 November 2012 Newham, acting under section 188 of the 1996 Act, granted FI a licence to occupy a two-bedroom self-contained flat on a day-to-day basis. Newham had licensed the property from a private sector company ("RC") which provided spot-booked bed and breakfast and nightly-let accommodation for homeless and other persons.
In a letter dated 19 February 2013 Newham advised FI that it had decided that she was homeless and in priority need but that she had become homeless intentionally by giving up her assured tenancy in Liverpool. Newham stated that it would help her search for alternative accommodation and allow her to stay in her current accommodation until 18 March 2013. Newham also provided her with written advice and informed her of her right to review the decision. On the same day solicitors acting for ZH asked Newham to review the decision and for accommodation pending the review. The solicitors also informed RC of their view that RC could not evict without first obtaining a court order. In a letter dated 14 March 2013 Newham refused to provide accommodation pending a review and told FI that she must leave the property by 21 March 2013.
ZH commenced judicial review proceedings on 18 March 2013 in which he challenged the decision to evict without first obtaining a court order. After an assessment under the Children Act 1989 Newham undertook to provide interim accommodation and financial support to assist FI in securing private rented accommodation. Newham also carried out a section 202 review which FI appealed to the county court. That appeal settled after Newham, in September 2013, accepted that it owed FI a "full housing duty" under section 193(2) of the 1996 Act, namely to secure that accommodation was available for her to occupy ("the full housing duty"). By that stage ZH's case had been linked to CN's case in the Court of Appeal.
CN was initially refused permission to proceed with the judicial review claim. That decision was appealed and on 23 November 2012 Davis LJ granted permission for the judicial review and ordered the claim to be retained in the Court of Appeal for a hearing. On 9 May 2013 Sales J gave ZH permission for his judicial review and transferred it to the Court of Appeal. The two judicial review claims were heard in June 2013; and on 11 July 2013 the Court of Appeal handed down judgment dismissing the claims.
Interim injunctions have protected CN's occupation of accommodation and on 23 November 2012 Davis LJ continued the injunction pending final disposal of the appeal. Although Newham has provided ZH with accommodation in accordance with its full housing duty, the parties agreed that it was appropriate that his case should be considered with that of CN in this appeal.
For many years Governments in the United Kingdom have sought to alleviate the suffering caused by homelessness. In Part III of the National Assistance Act 1948 local authorities were placed under a duty to provide temporary accommodation to persons who were in urgent need of it. The accommodation was to be provided in premises which the relevant local authority or another local authority managed or in the premises of a voluntary organisation to which the local authority made appropriate payments (sections 21 and 26). The local authority was empowered to make rules for the management of the premises which entitled it to require a person to leave the premises if he was no longer entitled to receive accommodation under that Part of the Act (section 23).
The Housing (Homeless Persons) Act 1977 replaced the provisions of the 1948 Act, by which only temporary accommodation was provided, with a statutory regime which also provided longer term accommodation for the homeless. That regime in its essentials survives in the 1996 Act. In particular, the 1977 Act introduced:
i) the concept of priority need (section 2),
ii) the obligation on the local housing authority to provide temporary accommodation while it investigates whether the applicant is homeless and in priority need and whether he or she is homeless intentionally (section 3), and
iii) the duties, arising from the results of that investigation,
(a) to provide advice and appropriate assistance, (b) to provide temporary accommodation for a period to give a reasonable opportunity to secure other accommodation, or (c) to secure that accommodation becomes available for occupation (section 4).
The 1977 Act was consolidated into wider housing legislation in Part III of the Housing Act 1985. That in turn was repealed by the 1996 Act, which in Part VII provides the current statutory regime for tackling homelessness.
I need only summarise the relevant provisions of the 1996 Act. When an applicant applies...
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