CN V LB Lewisham And ZH V LB Newham

01 Jan 2018

Property, Public Law and Judicial Review

In R(CN) v LB Lewisham; R (ZH) v LB Newham, Secretary of State for Communities and Local Government intervening, the Court of Appeal has affirmed the decision in Mohammed v Manek & RBKC (1995) 27 HLR 439, that the expression ‘occupied as a dwelling under a licence’ in s.3(2B) Protection from Eviction Act 1977, does not apply to temporary accommodation provided under licence to an applicant for homelessness assistance under s.188(1) or s.190(2) Housing Act 1996.

Matt Hutchings and Jenny Oscroft were counsel for the London Borough of Lewisham and the London Borough of Newham.

The main basis of the challenge in these conjoined appeals was that Article 8 of the Convention and recent jurisprudence of the European Court of Human Rights, together with the decisions of the Supreme Court in Pinnock and Powell required the Court of Appeal to depart from its previous decision in Desnousse v LB Newham [2006] QB 831 and to revisit the statutory interpretation of s.3(2B) PEA 1977 which had stood for nearly twenty years. Local housing authorities will already be familiar with the DCLG Homelessness Guidance for Local Authorities at paragraph 7.11 which refers to the position set out in Manek and Desnousse, and will be reassured to note following today’s judgment, that they are not generally required to issue possession proceedings in circumstances in which they seek to evict applicants from temporary accommodation occupied under a licence once initial enquiries under s.184 HA 1996 are completed.

The Court of Appeal was persuaded by the arguments advanced on behalf of Lewisham and Newham that there were adequate procedural safeguards in the statutory regime under Part VII HA 1996 which allowed applicants to engage in the decision-making process which might lead to their eviction from temporary accommodation, and that the imposition of a requirement that local housing authorities take proceedings in every case would impose a substantial burden which would be disproportionate to the extremely small number of cases in which any arguable Article 8 issue might arise. Observing that the reasoning in Desnousse was just as valid today, the Court of Appeal recognised the immense pressure on social housing generally and the pressure upon local housing authorities dealing with greater numbers of applications for homelessness assistance in the current economic climate.

The result of the judgment is that any applicant seeking to raise an Article 8 defence to a decision to evict from temporary accommodation occupied under licence pursuant to s.188 or s.190(2) HA 1996 would have to issue judicial review proceedings, and if appropriate seek urgent relief from the Administrative Court, as indeed CN and ZH had done in these appeals.

For judgement click here.