Westminster City Council v Boraliu
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Gage,Lord Justice Lawrence Collins |
| Judgment Date | 02 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1339 |
| Docket Number | Case No: B5/2007/2128 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 2007 |
[2007] EWCA Civ 1339
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE KNIGHT QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Gage and
Lord Justice Lawrence Collins
Case No: B5/2007/2128
Mr C Jones (instructed by City of Westminster) appeared on behalf of the Appellant.
Mr K Gannon (instructed by Paddington Law Centre) appeared on behalf of the Respondent.
This is an appeal from an order made on 24 August 2007, by HHJ Knight QC sitting in the Central London County Court, on an appeal from the District Judge in possession proceedings brought by Westminster City Council in relation to property known as Flat 8A, Warlock Road, London W9.
Flat A, 8 Warlock Road, is one of a number of properties let to the City Council by Pathmeads Housing Association under a lease dated 21 October 2004. That lease was entered into, as appears from the recital which it contains, so that the council could use the property demised as temporary housing for homeless persons in accordance with its statutory duties under the Housing Act 1985, the Housing Act 1986 and the Housing Act 2002. Those duties include, of course, the duties imposed on the council as a local housing authority under Part VII of the Housing Act 1996. The 2004 lease must be read with a supplementary lease dated 11 October 2006 which had the effect of extending the term for which Flat A was let until 20 February 2008.
On 21 February 2005 or thereabouts, Ms Hatixhe Boraliu (to whom I shall refer as “the tenant”) was let into possession of Flat A under a tenancy agreement dated 17 February 2005. The City Council was the landlord in respect of that agreement. The agreement was expressed to be a non-secure tenancy agreement by virtue of Section 79, Schedule 1, paragraph 6 of the Housing Act 1985; being a tenancy of property which had been let to the the Council as use for temporary accommodation for occupation by homeless persons, on terms which included provision for the lessor to obtain possession on the expiry of the lease.
Paragraph 6 of Schedule 1 to the Housing Act 1985 is in these terms:
“6. A tenancy is not a secure tenancy if –
(a) the dwelling-house has been leased to the landlord with vacant possession for use as temporary housing accommodation,
(b) the terms on which it has been leased include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor,
(c) the lessor is not a body which is capable of granting secure tenancies, and
(d) the landlord has no interest in the dwelling-house other than under the lease in question or as a mortgagee.”
A secure tenancy, in that context, is a tenancy under which a dwelling-house is let as a separate dwelling at any time when the conditions described in Sections 80 and 81 of the Housing Act 1985 as “the landlord condition” and “the tenant condition” are satisfied (section 79(1) of that Act). But that subsection has effect subject to the exceptions in Schedule 1 to the Act (tenancies which are not secure tenancies)—section 79(2) of the Housing Act 1985.
In the context of the present appeal, it is pertinent to have in mind not only the exception in paragraph 6 of Schedule 1, which I have already set out, but also the exception in paragraph 4 of the Schedule, which (as enacted in 1985) was in these terms:
“4. (1). A tenancy granted in pursuance of –
(a) Section 63 (duty to house pending inquiries in case of apparent priority need),
(b) Section 65(3) (duty to house temporarily a person found to have a priority need but to have become homeless intentionally), or
(c) Section 68(1) (duty to house pending determination whether conditions for the referral of application are satisfied),
is not a secure tenancy before the expiry of the period of twelve months beginning with the date specified in sub-paragraph (2), unless before the expiry of that period the tenant is notified by the landlord that the tenancy is to be regarded as a secure tenancy.”
The date at sub-paragraph (2) provides that the date referred to in sub-paragraph (1) is the date on which the tenant receives notification of a relevant decision. By February 2005, when the tenancy agreement was made, the duties under section 63, section 65(3), and section 68(1) of the Housing Act 1985 had been replaced by duties under sections 188, 190 and 200 of the Housing Act 1996.
It is clear that paragraph 4 of Schedule 1 of the Housing Act 1985, as enacted, would not have been applicable to the tenancy granted in 2005. It was accepted by the council that, at the time when that tenancy was granted, the tenant was a person to whom the full housing duty was owed under section 193 of the Housing Act 1996 (formerly section 65(2) of the Housing Act 1985).
But paragraph 4 of Schedule 1 to the 1985 Act had been replaced, in rather different terms, by paragraph 3 Schedule 17 to the Housing Act 1996. It was the paragraph in that substituted form that was given force by section 216(3) of the 1996 Act; and it was the paragraph in that substituted form which was relevant in 2005. By 2005, paragraph 4, Schedule 1 of the Housing Act 1985 was in these terms:
“Accommodation for homeless persons
4. 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.”
For whatever reason, the changes made by the 1996 Act had not found their way into the form of tenancy agreement which the City Council used in granting the tenancy to this tenant on 17 February 2005. That agreement—as well as referring to provisions of the 1985 Act which had long been repealed—makes no reference to the exception in paragraph 4 of Schedule 1 to that Act as it was at that time, following the change made in 1996. It refers only to paragraph 6 of that Schedule.
On 28 December 2006, the City Council served on the tenant a Notice to Quit. Under that notice, the tenant was to give up possession on 5 February 2007. She did not give up possession on that day. On 23 February 2007, the council made her an offer of alternative temporary accommodation at another property. An appointment to view that alternative accommodation was arranged for 26 February 2007; but, it seems, the appellant did not keep that appointment. The council took the view that that was a refusal of the alternative accommodation: a view which, for reasons which the tenant was to set out later in the letter of 13 March 2007, was a correct appreciation of her intention at that time.
In the light of the tenant's refusal of alternative accommodation, the council decided that their housing duty under Section 193 of the Housing Act 1996 was discharged. They notified the tenant of that decision by a letter dated 26 February 2007. By the letter of 13 March 2007, to which I have referred, the tenant sought review of that decision under Section 202 of the 1996 Act, as she was entitled to do. Following that review, the council confirmed their decision that the alternative accommodation was suitable and that the housing duty was discharged. They did that by letter dated 1 May 2007. So far as we are aware, the tenant did not appeal to the County Court under Section 204 of the Housing Act 1996 from the decision in the review letter.
In the meantime, proceedings for possession of Flat A, 8 Warlock Road had been commenced by the issue of a claim form on 24 April 2007 in the Central London County Court. The Particulars of Claim included this paragraph (paragraph 8):
“The Claimant is a local authority. The Claimant granted the Defendant the tenancy of the property in pursuance of its functions under Part VII of the Housing Act 1996 (homelessness) and the tenancy is not a secure tenancy by virtue of paragraph 4 of schedule 1 of the Housing Act 1985. The Claimant avers that it has not at any stage notified the Defendant that the tenancy is to be regarded as a secure tenancy.”
Those proceedings came before Deputy District Judge Harmer on 6 June 2007. The District Judge made an order that possession be given up on or before 20 June 2007. The tenant did not give up possession on that day. She appealed with the permission of HHJ Collins CBE granted on 19 July 2007.
It was that appeal which came before HHJ Knight QC on 24 August 2007. HHJ Knight allowed the appeal. He held, first, that the tenancy created by the agreement of 17 February 2005 did not fall within paragraph 4 of Schedule 1 of the Housing Act 1985. He reached that conclusion for reasons which he set out at paragraphs [16] to [18] of his judgment. Put shortly, he held that a tenancy of property which was itself held...
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...1A in some way exclude the provisions of paragraph 4. It is clear as a matter of authority from the decision of this court in Westminster City Council v Boraliu [2007] EWCA Civ 1339 that the paragraphs of Schedule 1 HA 1985 have to be read as mutually exclusive to and not qualified by each ......