Eviction: Principles established by Supreme Court Judgments

Clare Hardy, Geldards, Derby

Recent judgments from the Supreme Court have established important principles relating to possession of housing by local authorities.

The Supreme Court has recently issued judgment in respect of two housing cases, which established that a local authority does not need to have a possession order in order to be able to evict occupiers of temporary accommodation which has been provided under Part VII of the Housing Act 1996.

In another case, the Supreme Court found that that the position that a notice to quit given by a joint periodic secure tenant has the effect of terminating a tenancy is compatible with the European Convention on Human Rights.

Eviction without a possession order

The judgment in the cases of R (on the application of ZH and CN) v London Borough of Newham and London Borough of Lewisham [2014] All ER (D) 120 (Nov) related to families who had been provided with temporary accommodation by the London borough councils of Lewisham and Newham.  The local authorities had provided the accommodation to meet their duty to provide temporary accommodation to applicants for assistance on the basis of homelessness, while the local authorities made further enquiries.  Having made enquiries, the local authorities concluded that the families were not eligible for assistance.  They notified the families and required them to leave the accommodation.  ZH applied for judicial review of Newham’s decision and CN applied for judicial review of the decision of Lewisham.

In considering the claims of ZH and CN, the court needed to consider whether the temporary accommodation was “premises occupied as a dwelling under a licence” for the purposes of section 3(2B) of the Protection from Eviction Act 1977.  It also needed to consider whether Article 8 of the European Convention of Human Rights required that a public authority must obtain a court order before it can evict an in

The Supreme Court found in favour of the local authorities.  It found that the local authorities were able to evict the appellants from temporary accommodation without first obtaining a court order.  A licence to occupy temporary accommodation under section 188 of the Housing Act 1996 was not granted for the purpose of using the premises “as a dwelling”.  The statutory context was inconsistent with such a purpose.  Section 188 imposed a low threshold duty on a local housing authority to provide interim accommodation for a short and determinate period only.  Such a licence was granted on a day-to-day or nightly basis which recognised that the local authority might require the applicant to transfer to alternative accommodation at short notice.  The point was also made, (although the judgment said that the policy considerations of this point would not by themselves be determinative), that the imposition of the requirements of the Protection from Eviction Act 1977 would significantly hamper the operation by the authorities of the statutory scheme under the Housing Act 1996.

On the subject of human rights, the parties agreed that the appellants’ rights under Article 8 of the European Convention on human rights were engaged but the Supreme Court found that there were sufficient procedural safeguards to satisfy those rights.  There were safeguards in the decision-making process that allowed the occupant to be involved in the process and, through an appeal to the county court or by judicial review in the administrative court, gave an opportunity for him or her to raise the question of proportionality before an independent tribunal. There was no need to impose the additional procedural hurdle of obtaining a court order which would impose costs on an authority without any significant benefit to the applicant.

Termination of a joint periodic secure tenancy

In another case, the Supreme Court found that the rule from the case of Hammersmith & Fulham LBC v Monk[1992] 1 AC 478, which established that a notice to quit given by a joint periodic secure tenant has the effect of terminating the tenancy is compatible with the European Convention on Human Rights.

The case of Sims v Dacorum Borough Council [2014] All ER (D)126 involved a couple who were joint periodic secure tenants of a house owned by a local authority.  One of the tenants gave a notice to quit, which had the effect of terminating the tenancy.  The local authority obtained a possession order against the other tenant.  He appealed, arguing that the rule in the Monk case was incompatible with his right to a private and family life under Article 8 of the European Convention on Human Rights and his right to peaceful enjoyment of possessions under Article 1 of the First Protocol to the European Convention on Human Rights.

The Supreme Court found in favour of the local authority.  The tenancy included a clause (clause100) which provided that the tenancy could be determined by one of the tenants and another clause (clause 101) which provided that if that occurred, the local authority could decide to permit the other tenant to stay in the house.  The court found that clause 100 was consistent with the common law principle in the Monk case and the effect of clause 100 was mitigated by clause 101.

On the subject of Article 8 of the European Convention on Human Rights, the Supreme Court found that the appellant had been entitled to raise the question of the proportionality of the local authority’s council’s pursuit of the claim for possession of the house but that the deputy district judge had been correct when coming to the view that it was lawful and proportionate to make an order for possession in this case.  The Supreme Court found that the appellants rights under Article 8 of the European Convention on Human Rights had been appropriately taken into account because: His tenancy was determined in accordance with its contractual terms to which he had agreed in clause 100.  He was entitled to the benefit of clause 101. Under the Protection from Eviction Act 1977 he could not be evicted without a court order.  The court would have to be satisfied that the local authority was entitled to evict him as a matter of domestic law.  The court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him, in accordance with the reasoning in the cases of  Pinnock v Manchester City Council [2011] 1 All ER 285 and Hounslow London Borough Council v Powell [2011] 2 All ER 129.

These recent cases should be helpful to local authorities by providing clarity over their ability to obtain possession of their accommodation.