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A leap too far?

In an interesting development for housing law practitioners, two cases dealing with Local Authority obligations when terminating temporary accomodation are going all the way to the Supreme Court.

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Both R (CN) v London Borough of Lewisham and R (ZH) v London Borough of Newhamconcern eviction of occupiers of temporary accomodation, who are asking the Court to rule on whether or not a possession order needs to be first obtained thus affording them security under the Protection from Eviction Act 1977.

The current position is occupiers of temporary accomodation, provided under Part VII Housing Act 1996 as amended, do not have protection under the 1977 act. The reality is at present, they are no more than a bare licensee and their occupation is terminable by a Notice to Quit.

The ‘good law’ confirming this position is the case of Manek from way back in 1995 – prior to the introduction of the Human Rights Act 1998 and prior to the decisions of the Supreme Court in Pinnock and Powell.

It seems to be time for the Supreme Court to bring the matter up to date.

What impact would a successful proportionality argument have on temporary accomodation and the statutory scheme?

It seems to me that wholesale changes would have to be made to the current statutory scheme, should the Supreme Court decide that a Local Authority was required to go to Court to obtain a possession order.

As things stand, a tenant is usually served with a 28 day Notice to Quit at the commencement of the period of temp accomodation. Once a s.184 decision is issued and that decision is in the negative, recovery of the property usually follows.

If a review is sought under s.202 representations need to be made to the Local Authority as to why temp accomodation should continue, as there is only a ‘power’ at that stage, to continue to provide accomodation.

This runs right through in circumstances where a s.204 appeal is raised.

Perhaps  a decision which imposes a burden on a Local Authority to go to Court to obtain a possession order would allow proportionality arguments (health, children etc) to be raised within the context of the ongoing homelessness case.

There would probably have to be some cut off point so that a temp occupier is not challenging possession proceedings, months or years after a decision on their homelessness has been made.

But then, would this simply clog up temp accomodation, which is a finite resource, creating a backlog for years to come? A Local Authority dealing with hundreds of homelessness cases, going to Court at the end of each unsuccesful application?  Lawyers raising proportionality/Gateway B arguments… this may be a leap too far.

It may be that the Supreme Court will clarify the nature of temp accomodation and the proportionate steps that a Local Authority should now consider taking when recovering temp properties, in light of the changes in law and recent developments in caselaw.

As housing lawyers, it is likely that we have all had cases where we might think that proportionality arguments should be raised, due to the client’s individual circumstances, so this would be useful for social housing providers, tenants and lawyers alike.

On a personal note, if the Supreme Court upholds the Court of Appeal’s decision, I would like to see the DCLG Homelessness Guidance, particularly para 7.11, refreshed under these circumstances

It would be the alternative to making changes to a system which whilst it has its flaws does, to a certain extent, function well.

It is still open to applicants to challenge a decision to evict by way of a judicial review application, coupled with an application for urgent relief, to the Administrative Court and that remains an important safeguard.

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