The Mayor and Burgesses of the London Borough of Wandsworth v Mrs Joanne Tompkins (First Defendant/Appellant) Mr Warren Tompkins (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Gloster,Lord Justice Christopher Clarke |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWCA Civ 846 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2015 |
| Docket Number | Case No: B5/2014/3332 |
[2015] EWCA Civ 846
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT SITTING AT CENTRAL LONDON
HH JUDGE LAMB QC
2WT00757
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lady Justice Gloster
and
Lord Justice Christopher Clarke
Case No: B5/2014/3332
and
Mr Jonathan Manning and Ms Sarah McKeown (instructed by South West London Law Centres) for the Appellant
Mr Stephen Evans (instructed by London Borough of Wandsworth) for the Respondent
Hearing date : 7 July 2015
This is an appeal by Mrs Tompkins against an order of HH Judge Lamb QC dated 26 September 2014 declaring that she and her husband hold the property at 230 Southcroft Road, London, SW17 ("the Property") under a non-secure tenancy. The appellant's case is that she and Mr Tompkins were granted by the London Borough of Wandsworth ("the Council") an introductory tenancy of the Property pursuant to s.124 of the Housing Act 1996 ("HA 1996") which has now become a secure tenancy. The Council's case, in short, is that this was a legal impossibility in the circumstances in which the tenancy was granted and that Mr and Mrs Tompkins have never enjoyed more than a non-secure tenancy granted to them pursuant to the Council's interim duty under s.188 HA 1996 to provide accommodation to them as homeless persons in priority need.
In order to understand how this issue has arisen, it is necessary to refer to the background history which I can do relatively shortly.
In November 2010 Mr and Mrs Tompkins and their four children vacated the property they were occupying in North London following various acts of violence by one of their neighbours. They went to live at the home of Mr Tompkins's grandmother in Streatham, SW16. She had died shortly before and Mr Tompkins made an application to succeed to her tenancy of the premises. This was unsuccessful and in April 2011 the family were evicted and applied to the Council for accommodation on grounds of homelessness. The Council, whilst not accepting that they owed to Mr and Mrs Tompkins the full housing duty under s.193 HA 1996, were satisfied that they qualified for temporary accommodation pursuant to the interim duty under s.188. They were therefore housed in bed and breakfast accommodation at the Trochee Hotel in Wimbledon whilst the Council considered the position.
On 6 May 2011 the Council made a decision under s.184 HA 1996 that Mr and Mrs Tompkins were intentionally homeless. The Council was asked to review this decision and by 2 June 2011 had decided to quash the decision. But it continued to investigate whether it had been reasonable for the family to continue to occupy their former home in North London: see s.191(1) HA 1996.
By this time the Council was becoming concerned about the length of time Mr and Mrs Tompkins had occupied their accommodation at the Trochee Hotel (in all about 9 weeks) and offered them accommodation at 95 Danebury Avenue which Mrs Tompkins says she rejected because of the condition of the property. About a week later the Council offered to accommodate them at the Property which they viewed on 28 June 2011.
As I mentioned earlier, the Council, having revoked its decision of 6 May 2011, continued to investigate the question of intentional homelessness. In a letter to a housing advice association (Threshold Housing Advice) of 2 June 2011 informing them of the decision to revoke, the Council told them that it was treating the application by Mr and Mrs Tompkins as an ongoing homelessness application, which it clearly was. In its letter to Mr and Mrs Tompkins of 21 June 2011 offering to accommodate them at the Property, the Council said that it was:
"now able to provide you with alternative temporary accommodation in accordance with its duties under the Housing Act 1996 (Part VII), as amended.
…
You have the right to request a review of the suitability of this offer irrespective of whether you wish to accept or refuse it. If you have concerns about the offer you should advise the accompanying officer at the viewing. You may request such a review any time up until 21 days from the date of receipt of this letter. If you request a review upon either acceptance or refusal, you will need to provide reasons why you feel the offer is unsuitable or why you feel that it is not reasonable for you to accept it".
Part VII, of course, contains the homelessness provisions. The letter of 21 June was signed by Mrs Bernadello, the Council's Temporary Accommodation Manager.
Mr and Mrs Tompkins liked the Property when they inspected it on 28 June and were told to go to the housing department at Wandsworth Town Hall to sign the tenancy agreement, which they did later that day. The document which they were given to sign was the appropriate form for the grant of an introductory tenancy. It was headed : "Grant of Introductory Tenancy"; contained the address of the Property and details of the rent and other outgoings; and then, at the bottom of the form, included a "Certificate of Acceptor(s)" signed by Mr and Mrs Tompkins containing the following terms:
"I/We accept that I am/we are jointly responsible for complying with all of the Tenancy Conditions, including the payment of rent. I/We understand that the tenancy will become a secure tenancy at the end of the trial period unless:
1. The tenancy has ceased to be an introductory tenancy before that date.
2. Court proceedings for possession have been issued by the Council; or
3. The tenancy has been terminated (e.g. by a Court Order for Possession)."
Mrs Tompkins took the tenancy agreement to Threshold Housing which had previously advised them on their homelessness application. They advised her that, on the basis that they had been granted an introductory tenancy, she and her husband were no longer homeless and should withdraw their homelessness application. Threshold Housing also contacted the Council to obtain a copy of the s.184 decision on homelessness to enable them to close their file on the application.
As a result of this, the Council e-mailed Threshold Housing Advice on 11 July 2011 to say that Mr and Mrs Tompkins had not been offered an introductory tenancy and that the Property had been provided as temporary accommodation pending further inquiries on the issue of intentional homelessness. Later, in a letter of 12 September, the Council said that the introductory tenancy form had been used in error and that Mr and Mrs Tompkins should have been granted a non-secure tenancy of the Property pending the completion of the s.184 inquiry.
Regardless of the merits of the dispute about the nature of the tenancy which it had granted, the Council could have resolved the situation by serving notice of proceedings and then commencing proceedings for possession within the 12 month trial period commencing on the grant of the tenancy: see s.127–129 HA 1996. The Council served notice of possession proceedings on 21 May 2012 but did not issue the claim for possession until 4 July 2012; one day too late. As a result of this, the Council was not able to seek possession based solely on the s.128 notice of proceedings but, instead, amended the claim form and the particulars of claim to plead that, by virtue of s.124(2) HA 1996 and Schedule 1, paragraph 4, of the Housing Act 1985 ("HA 1985"), the tenancy granted on 4 July 2011 was incapable at law of taking effect as an introductory tenancy.
It is convenient at this stage to set out the statutory provisions referred to in the pleadings. So far as material, s.124 HA 1996 (which is contained in Part V of HA 1996) provides:
"(1) A local housing authority or a housing action trust may elect to operate an introductory tenancy regime.
(2) When such an election is in force, every periodic tenancy of a dwelling-house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy,…"
The question whether the tenancy would otherwise be a secure tenancy is determined by reference to s.79 HA 1985. This provides:
"(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.
(2) Subsection (1) has effect subject to —
(a) the exceptions in Schedule 1 (tenancies which are not secure tenancies),…"
It is common ground that the landlord and tenant conditions (which are dealt with in ss.80 and 81 HA 1985) were satisfied in this case but the Council relies on one of the exceptions in Schedule 1, paragraph 4, which states:
"A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness) … is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy."
The Council's case, shortly stated, is that the tenancy granted to Mr and Mrs Tompkins on 4 July 2011 was a tenancy granted in pursuance of its Part VII homelessness function; in particular the interim duty under s.188 HA 1996. It was not and could not therefore have been a secure...
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