High Court judgment sounds warning note for housing authorities
A judgment handed down on 10 August 2017 by Popplewell J sounds a warning for local authorities in relation to their procedures for managing temporary accommodation.
Dacorum Borough Council housed a homelessness applicant in self-contained temporary accommodation pending inquiries under the interim duty in s.188 of the Housing Act 1996. After a number of months, they produced a s.184 decision accepting the main housing duty under s.193, which stated that she would receive an offer discharging duty – either under Part VI or a PRSO.
Meanwhile, the homeless applicant remained in the same temporary accommodation. Four and a half months after accepting duty, the Council made an offer of Part VI accommodation, which the applicant refused.
The Council therefore discharged duty and served a notice to quit in respect of the temporary accommodation. When the applicant refused to vacate, the Council brought possession proceedings in the County Court.
The applicant defended the proceedings on a number of different bases. One of them was that the notice to quit had failed to contain the prescribed information required under section 5 of the Protection from Eviction Act 1977.
Before the County Court judge the Council won on all points and recovered possession. They relied on the Supreme Court decision in R(N) v Lewisham LBC [2015] AC 1259, which establishes that temporary accommodation provided pending inquiries is not “let as a dwelling” and therefore falls outside the Protection from Eviction Act. The County Court judge held that when the Council accepted the main housing duty “nothing had changed”.
The applicant appealed to the High Court solely on the Protection from Eviction Act point. Popplewell J allowed the appeal on the basis that, once the Council had accepted the main housing duty, the purpose of the letting had changed and thereafter it had been “let as a dwelling”.
He based his decision in particular on the following:
(1) The original temporary accommodation agreement stated that the accommodation was provided pending a decision as to what duty was owed and did not contemplate any further period of occupation;
(2) Although the s.184 decision did not expressly offer the temporary accommodation to the applicant as s.193 accommodation, this was implicit, as was her acceptance of this offer;
(3) Whilst the s.184 decision stated that the applicant would receive an offer under s.193, it stated that no definite timescale could be given for this and indicated that it might be a considerable time later;
(4) In fact, a further offer under s.193 was not made until 4 and a half months later.
Popplewell J rejected the submission that the temporary accommodation simply “rolled over” as interim accommodation. He was of the view that the normal inference to be made when a homeless applicant was allowed to stay on in temporary accommodation after acceptance of duty was that the accommodation was being provided under s.193 and thus its purpose had changed. However, he stated that not all accommodation provided under s.193 would be “let as a dwelling”: it depended on the facts. If, for example, at the same time as accepting duty, the local authority made an offer of alternative accommodation under s.193, the existing accommodation would not be “let as a dwelling”.
The judgment does not clarify what answer the court might give if, upon acceptance of the main housing duty, the local authority states that an offer under s.193 will be forthcoming within a relatively short time period. The clear message is that, if a local authority want to take advantage of the freedom from the Protection from Eviction Act that exists before acceptance of duty for a period after duty has been accepted, they would be well advised to review their documentation and procedures in the light of this judgment.
The full judgment of the High Court [2017] EWHC 2094 (QB) is here.
Matt Hutchings QC and Jack Parker represented Dacorum Borough Council.
