Desnousse v London Borough of Newham & Ors Rev 1

This appeal is concerned with the interrelationship between the provisions of Part 7 of the Housing Act 1996 governing the duties of local housing authorities towards persons who are or may be homeless, on the one hand, and those of the Protection from Eviction Act 1977 on the other. The 1996 Act, as amended, is the current legislation which deals with a subject first tackled, in terms of legislation, by the Housing (Homeless Persons) Act 1977.

In summary, if a local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they must make enquiries as to whether the applicant is eligible for assistance and if so what duty is owed to him under the Act (section 184). If they have reason to believe that the applicant may be homeless, eligible for assistance and in priority need, the authority must secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the Act (section 188). If, following enquiries, the authority are satisfied that the applicant is homeless and eligible for assistance, and has priority need, but has become homeless intentionally, they must secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation (section 190). If, on the other hand, they are satisfied that he is homeless, eligible for assistance, and in priority need, and not satisfied that he has become homeless intentionally, then they must secure that accommodation is made available on a longer-term basis (section 193).

The issue in this case arises from the situation in which a housing authority have decided that an applicant, though homeless, eligible for assistance and in priority need, became homeless intentionally so that, once the period of temporary accommodation required under section 190 has come to an end, they are under no further duty to secure that accommodation is available for the applicant. The question is whether, before the applicant can be evicted from the accommodation whose availability has been secured in accordance with the authority’s duties under the Act, the provisions of section 3 of the Protection from Eviction Act 1977 have to be complied with. If so, the right to possession can only be enforced (if it has to be) by court proceedings for an order for possession.

The housing authority in the present case contend that the 1977 Act does not apply in this situation, and that this court has so decided in a previous decision: Mohamed v. Manek and Royal Borough of Kensington and Chelsea (1995) 27 HLR 439, which I will refer to as Mohamed v. Manek. The judge so held. The Appellant argues that this is wrong and that Mohamed v. Manek is not a binding authority to that effect.

In October 2003 Mrs Roma Desnousse, the Claimant and Appellant, approached the Homeless Persons Unit of the London Borough of Newham, the First Defendant (“Newham”), on the basis that she was, or was about to become, homeless, upon being evicted from a council flat of which her husband had been the tenant. On 18 November 2003 the Second Defendant, PCHA, which manages accommodation for homeless persons on behalf of Newham, made arrangements for her, and her two children, one aged 8 and the other a baby, to be accommodated in bed and breakfast accommodation at Redbridge Lodge in Ilford. On 23 December 2003 she and the children were transferred to self-contained accommodation, known as Annex accommodation, at Norfolk Road in Ilford, which was managed on behalf of its owner by the Third Defendant, Veni Properties Ltd (“Veni”). The identity of Veni’s principal is not known and does not matter. I will refer to Veni as if it were the owner. The accommodation consists of a self-contained flat with two bedrooms, kitchen and bathroom. As the judge did, I will refer to it as the Flat.

The agreement dated 23 December 2003 is between PCHA and the Appellant. It is headed “Bed and Breakfast Agreement and Initial Housing Benefit Claim”. In a number of respects, it is more apt for the traditional kind of bed and breakfast accommodation for which it was no doubt originally designed. By signing it the Appellant accepted that she had been placed in the Flat by Newham, the Flat being managed by PCHA. She had to pay a charge of £446.32 per week, and a minimum of £1.19 per week for cooking facilities and £12.25 per week for services. If her claim to housing benefit was successful, it would cover all charges except the £1.19, which she had to pay directly to PCHA. The agreement had a number of references to what she would be doing under it: the Flat was referred to as “temporary accommodation”, and the agreement spoke of her “staying at”, “residing at” and “occupying” the accommodation provided. It does not seem to me that any light is cast on the questions relevant to this case by these various references.

PCHA’s records show that, on 23 December, the Appellant having signed the form of agreement to which I have referred, PCHA booked the Flat for the Appellant’s accommodation from that date until further notice, by sending a booking form to Veni, the cost to be billed to Newham.

On 18 May 2004 Newham, having completed its investigations into the Appellant’s position, informed her in a letter that it was satisfied that she was eligible for assistance, homeless and in priority need, but also that she had rendered herself intentionally homeless, for reasons which were explained in the letter. She was told that her accommodation booking would be cancelled on 14 June, and she was advised to seek advice and assistance in order to obtain alternative suitable accommodation. Veni was also told of the cancellation of the booking.

The Appellant then instructed solicitors, who wrote to Newham, PCHA and Veni to say that she could not be evicted from the property without a court order being obtained first. She discovered that Veni were threatening to proceed without a court order. Her solicitors obtained an interim injunction from the Bow County Court against Newham, PCHA and Veni restraining them from evicting her without an order. This was continued at a later hearing on notice. Her claim for a permanent injunction came to trial in November 2004 before His Honour Judge Roberts. The case proceeded on the basis that Veni was the “owner” of the Flat for the purposes of the Protection from Eviction Act, rather than either Newham or PCHA. On 7 December 2004 the judge gave judgment dismissing her claim, but he granted permission to appeal. By the appeal the Appellant seeks to have the judge’s refusal of an injunction against Veni set aside. Newham and PCHA were joined as Respondents to the appeal, as I understand it, at their own request. The Appellant had in the meantime also exercised her statutory right to call for a review of Newham’s decision that she was intentionally homeless and, when this review confirmed the previous decision, to appeal to the county court. During the hearing we were told that the appeal process was still under way.

After judgment had been reserved, however, the court was informed that the Appellant had moved out of the Flat voluntarily since the hearing. Accordingly, as between the parties, the only remaining issue is one of costs. On the other hand the point is of general importance to local housing authorities and to those for whom they arrange accommodation under section 188(1) of the 1996 Act.

In 1994 Mr Ezzeldin Amr Mohamed applied to Kensington and Chelsea borough council for accommodation, claiming to be homeless and in priority need. The council arranged for him to be housed in a hotel owned by a Mr Manek. There he had a room of his own, with a separate bathroom and lavatory, and shared use of a kitchen. Three days later the council had completed their investigations, and informed him that they were satisfied that he was homeless but that he was not in priority need, and that his accommodation arrangement would be terminated a few days later. He was given a little more time in order to allow for a challenge in court. He started proceedings in the county court seeking an injunction against being evicted without a court order. Such an injunction was granted, on an interim basis, against Mr Manek and the council. The council appealed, but Mr Manek did not.

The council’s appeal was allowed by the Court of Appeal. On behalf of the Respondents to the present appeal, it is argued that the decision in that case concludes the present appeal, as a binding authority on the point. For the Appellant it is argued that Mohamed v. Manek is not a binding authority, as having been decided per incuriam, or that its binding effect does not affect the facts of the present case, or that it has ceased to be binding because of changes in the relevant legislation and decisions of the House of Lords since 1995, or that it should not be given binding effect because to do so would be inconsistent with the Appellant’s rights under the European Convention on Human Rights.

In those circumstances, I will need to examine the decision in Mohamed v. Manek closely. Before doing so, I will set out the relevant statutory provisions.

Because the question is whether this Act applied to the Appellant’s situation, it is appropriate to start with its relevant provisions, before investigating the more elaborate provisions of the Housing Acts as regards duties to the homeless.

The relevant provision is section 3, of which I need to set out sub-sections (1), (2) and (2B) as follows:

“(1)

Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and

(a)

the tenancy (in this section referred to as the former tenancy) has come to an end, but

(b)

the occupier continues to reside in the premises or part of them,

it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

(2)

In this section “the occupier”, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.

……

(2B) Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions “let” and “tenancy” shall be construed accordingly.”

Statutorily protected tenancies, referred to in subsection (1) and defined in section 8, have their own protection under the relevant statutes. Excluded tenancies and licences are defined by section 3A, of which I set out several sub-sections, as follows:

“(1)

Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section.

(2)

A tenancy or licence is excluded if

(a)

under its terms the occupier shares any accommodation with the landlord or licensor; and

(b)

immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part.

……

(6)

A tenancy or licence is excluded if it was granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser (whether or not, before the beginning of that tenancy or licence, another tenancy or licence to occupy the premises or any other premises had been granted to him).

(7)

A tenancy or licence is excluded if

(a)

it confers on the tenant or licensee the right to occupy the premises for a holiday only; or

(b)

it is granted otherwise than for money or money’s worth.

(7A) A tenancy or licence is excluded if it is granted in order to provide accommodation under Part VI of the Immigration and Asylum Act 1999.

……

(8)

A licence is excluded if it confers rights of occupation in a hostel, within the meaning of the Housing Act 1985, which is provided by [any of various specified bodies, including a London borough council].”

The definition of owner, on which part of the decision in Mohamed v. Manek turned, is as follows:

“8(3) In Part I of this Act “the owner”, in relation to any premises, means the person who, as against the occupier, is entitled to possession thereof.”

Based on these provisions, Mr Arden contended that, at the relevant time in June 2004, the Appellant was the occupier, as defined, of the Flat, and that, if the Flat had been “premises occupied [by her] as a dwelling under a licence”, then the provisions of the Act applied to her as they would have done if she had had a tenancy. It was not contended that, if this were so, the licence was an excluded licence, but Mr Arden referred to section 3A to show that a number of situations were excluded by that section, including one which was in some ways analogous to that of Part 7 of the 1996 Act, namely temporary housing of asylum-seekers, but that no such provision had been made to exclude tenancies or licences arranged in pursuance of duties under Part 7 of the 1996 Act. He also submitted that Veni was the “owner” of the premises, and that it was accordingly as against Veni alone that it was necessary, and possible, for the Appellant to have recourse to the protection afforded by the Protection from Eviction Act.

The provisions about duties to those who are or may be homeless are now set out in Part 7 of this Act. Although Mr Arden placed some reliance on the way in which the relevant provisions had developed, it is sensible to start with the present form of the legislation.

The starting provision is section 184:

“(1)

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves

(a)

whether he is eligible for assistance, and

(b)

if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.”

Subsection (2) allows the authority to make enquiries as to whether the applicant has a local connection with any other housing authority. On completing their enquiries they are to notify the applicant of their decision and, if it is adverse to him, their reasons: sub-section (3).

Pending their enquiries, section 188 applies:

“(1)

If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.”

That duty exists whether or not the case might be referred to another local authority: sub-section (2). The duty comes to an end when the authority’s decision is notified to the applicant, even if the applicant requests a review. If a review is requested, the authority may secure that accommodation is available pending a decision on the review: sub-section (3). Mr Matthias for the Respondents pointed out that this last provision was new to the legislation in 1996. It was no doubt consequential on the introduction of the review procedure by the 1996 Act. Section 204, which provides a right of appeal against the authority’s decision, also allows for the continuation of arrangements for accommodation pending the hearing of the appeal: see sub-section (4).

Depending on the outcome of the enquiries, different provisions apply. If (as in the present case) the applicant is found to be homeless, eligible for assistance and in priority need, but also to have become homeless intentionally, section 190 applies:

“(2)

If the authority are satisfied that the applicant has a priority need, they shall

(a)

secure that accommodation is made available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

(b)

provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.”

It has been held in the Administrative Court that the proposition that a local authority must give reasonable notice of the termination of arrangements for the accommodation of an applicant in a situation such as this is sufficiently well arguable to justify the grant of leave to apply for judicial review: see R. v. Newham LBC ex parte Ojuri (No 5) (1998) 31 HLR 631 (Mr Pannick Q.C. sitting as a Deputy High Court Judge). Mr Matthias told us that, in practice, that decision had been acted on without being further tested on a substantive judicial review application, and that authorities generally give 28 days’ notice, or thereabouts, as Newham did in the present case. In practice this may often be equivalent to the period during which accommodation would have to be made available under section 190(2)(a).

Returning to the legislation, if (as in Mohamed v. Manek) the authority considers that the applicant is homeless and eligible for assistance, has not become homeless intentionally, but is not in priority need, then, under section 192, the authority is to provide, or see that he is provided with, assistance in attempts to obtain accommodation - sub-section (2) - and it may secure that accommodation is available for his occupation: sub-section (3).

If, on the other hand, the applicant is found to be homeless, eligible for assistance, in priority need, and not to have become homeless intentionally, section 193 governs the position. Unless the case is referred to another local authority, the authority is to secure that accommodation is available for occupation by the applicant, and that duty continues until it ceases under the provisions of the section. That may happen in a number of different circumstances, covered in sub-sections (6) and (7). One, perhaps the most common, is where the applicant accepts an offer of accommodation from the local authority under Part 6 of the Act.

The provisions about referral to another local authority, which I have mentioned in relation to several of these sections, are in sections 198 to 201. All I need say about them, for present purposes, is that a case may be referred to another authority if neither the applicant nor any other relevant person has a local connection with the district of the referring authority, but one or more of them has a local connection with the district of the authority to which the case is referred. A person has a local connection with a district, according to section 199(1), among other reasons, if he has a connection with it because he is, or was in the past, normally resident there, and that residence is or was of his own choice. If a case is referred to another local authority, section 200 imposes a duty on the referring authority to secure that accommodation is available for the applicant until he is notified of a decision whether the conditions for referral are met.

Section 206(1) is as follows:

“(1)

A local housing authority may discharge their housing functions under this Part only in the following ways:

(a)

by securing that suitable accommodation provided by them is available,

(b)

by securing that he obtains suitable accommodation from some other person, or

(c)

by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”

Sub-section (2) allows an authority to require a person in relation to whom they are discharging such functions to pay reasonable charges for accommodation secured for his occupation, or to pay amounts in respect of sums payable by them for accommodation made available by another person.

Section 209 makes special provision as to the status of a tenancy granted to an applicant by a private landlord under arrangements made by a local authority in pursuance of any of their functions under sections 188 and 190, among others. Such a tenancy cannot be an assured tenancy (and therefore entitled to protection under the Housing Act 1988) before the end of 12 months after (relevantly) the local authority has notified its decision to the applicant under section 184(3) (as to which see paragraph 21 above) or, if there is a review of that decision or an appeal, 12 months after the review or the appeal is finally determined, unless the landlord notifies the tenant otherwise during that period.

Section 210 deals with suitability of accommodation for the purposes of Part 7. In particular it allows the Secretary of State to specify circumstances in which accommodation is or is not to be regarded as suitable for a person. This power was first exercised by an order made in 1996 and amended in 1997, and currently by the Homelessness (Suitability of Accommodation) (England) Order 2003, SI 2003/3326, which came into force on 1 April 2004. This refers to applicants with family commitments: having two young children the Appellant was such an applicant. It also refers to “B&B accommodation”, which (oversimplifying) means accommodation which is not separate and self-contained premises and in which any of various facilities, including cooking facilities, are shared by more than one household. The effect of the order is that B&B accommodation is not to be regarded as suitable for an applicant with family commitments if it is made available under sections including section 188(1), 190(2) or 193(2), unless (a) no accommodation other than B&B accommodation is available, and (b) the applicant occupies such accommodation for no more than 6 weeks. As the judge below said, this did not apply at the time when accommodation was made available for the Appellant, but the Government was already encouraging this approach by way of non-binding guidance, and Newham may well have been applying that policy already.

In the light of Mr Arden’s submissions, I must also mention some provisions of Part 6 of the 1996 Act, which deals with allocation of housing accommodation. Section 159(1), (2) and (3) are as follows:

“(1)

A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.

(2)

For the purposes of this Part a local housing authority allocate housing accommodation when they

(a)

select a person to be a secure or introductory tenant of housing accommodation held by them,

(b)

nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or

(c)

nominate a person to be an assured tenant of housing accommodation held by a registered social landlord.

(3)

The reference in subsection (2)(a) to selecting a person to be a secure tenant includes deciding to exercise any power to notify an existing tenant or licensee that his tenancy or licence is to be a secure tenancy.”

Section 167 requires every local housing authority to have a scheme for determining priorities in allocating housing accommodation, and the procedure to be followed. The scheme is to be framed so as to secure that reasonable preference is given to a number of categories of people, including those who are homeless, within the meaning of Part 7, and those to whom a duty is owed by any local housing authority under sections of Part 7 including sections 190(2) or 193(2), or who are occupying accommodation secured under section 192(3): see sub-section (2). A local housing authority may not allocate housing accommodation except in accordance with their allocation scheme: sub-section (8).

Thus the duties which arise under Part 7 are distinct from those with which Part 6 deals. Mr Arden submitted that any accommodation which is provided, or whose availability is secured, under Part 7 is in its nature temporary. Even if the applicant is found to be the object of the fullest duty, under section 193(2), that is a duty which lasts only until something else happens, which may be the offer of a housing allocation under Part 6. How long it takes before that happens cannot be foreseen; it may be quite a long time, but leaving aside the length of time for which the duty subsists, he said that it is not different in nature from the interim duty which arises under section 188(1).

Mr Arden also drew to our attention the respects in which the legislation had changed since its origin in 1977, and in particular since the form which it took at the time relevant in Mohamed v. Manek.

The Housing (Homeless Persons) Act 1977 imposed on local authorities, by section 3, a duty as regards interim accommodation in similar terms to that now set out in section 188(1) and, by section 4, duties in the circumstances now covered by sections 190, 192 and 193. The duty in circumstances equivalent to those to which section 193 applies was similar in content, though less elaborately expressed. The duties corresponding to the circumstances of sections 190 and 192 were also similar to those now provided for by those sections. However, the content of the several duties to secure that accommodation is available was different, in that there was no requirement that the accommodation so secured be suitable, nor, therefore, any criteria as to what was or was not suitable accommodation.

The provisions of the 1977 Act were consolidated into Part III of the Housing Act 1985, which was the Act in force when Mohamed v. Manek was decided. The interim duty pending enquiries was covered in section 63; the duty upon the completion of enquiries was dealt with by section 65(2), (3) and (4), equivalent to sections 193, 190 and 192 respectively. The Act contained at section 69 an equivalent of section 206 in similar but not quite the same terms. For some reason section 69(1) referred to the duties under section 65 (and 68, equivalent to section 200) but not to section 63, whereas section 69(2) referred to all three sections.

As the 1985 Act originally stood, Schedule 1 paragraph 4 dealt with accommodation for homeless persons, by providing that a tenancy granted in pursuance of sections 63, 65 or 68 could not be a secure tenancy until 12 months after the tenant had been notified of the authority’s decision on the question of homelessness or an earlier notification by the authority (so equivalent to section 209 of the 1996 Act, but applying to local authority tenancies rather than those in the private sector).

That paragraph was changed by the Housing Act 1996. It now reads:

“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.”

The Schedule was also amended in 1999 by the Immigration and Asylum Act 1999, to introduce a paragraph 4A, as follows:

“(1)

A tenancy is not a secure tenancy if it is granted in order to provide accommodation under Part VI of the Immigration and Asylum Act 1999.

(2)

A tenancy mentioned in sub-paragraph (1) becomes a secure tenancy if the landlord notifies the tenant that it is to be regarded as a secure tenancy.”

A criterion of suitability of the accommodation to be provided was first introduced into the legislation by the Housing and Planning Act 1986, section 14, reversing the effect of the decision in R v. Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 48, which was concerned with whether suitability of accommodation was relevant to the question whether the applicant was homeless. The requirement of suitability was introduced in 1986 both as regards the applicant’s existing accommodation and as regards that which it was the duty of the authority to make available. Because this was done by amendment of section 69(1), which referred to the duties under sections 65 and 68 but not to the interim duty, pending enquiries, under section 63 (as noted at paragraph 38 above), it seems that the requirement that the accommodation to be made available be suitable did not apply to that which was secured on an interim basis, whereas under the 1996 Act it does apply in relation to all of the various duties: section 206.

The 1996 Act was amended in relevant respects by the Homelessness Act 2002, but I do not need to discuss those amendments. The provisions of the Act summarised and quoted above are as so amended, where relevant.

Mr Arden developed a sustained argument based on the provisions of the Protection from Eviction Act 1977 and the 1996 Act. He submitted that, whereas the local authority’s duty towards the applicant who claimed to be homeless was a public law duty, as held in O’Rourke v. Camden Borough Council [1998] AC 188, once it was implemented by accommodation being made available for an applicant, whether at the interim stage or later, a private law relationship arises between the applicant and whoever is responsible for the accommodation, whether the authority or a private landlord: see Lord Hoffmann in O’Rourke at page 196H:

“Of course a private law relationship may arise from the implementation of the housing authority’s duty. The applicant may become the authority’s tenant or licensee and so brought into a contractual relationship.”

To the same effect, Nolan LJ said this in Mohram Ali v. Tower Hamlets Borough Council [1993] QB 407 at 415C:

“It follows that in my judgment the public law duties of the council were not discharged until they had completed the process of deciding on the suitable accommodation which they were obliged to secure for the plaintiff. If this process was properly carried out as a matter of public law, then the consequential private law right of the plaintiff was simply a right to the accommodation which the council had decided to be suitable.”

Similarly, Ralph Gibson LJ said this in London Borough of Hackney v. Lambourne (1992) 25 HLR 172 at 179:

“The defendants … have no private law right to remain in occupation of the temporary premises let to them. Their private law right is to the accommodation which the council has, in the exercise of its discretion, judged to be suitable accommodation.”

Eastleigh Borough Council v. Walsh [1985] 1 W.L.R. 525 is an example of a tenancy created in implementation of an authority’s duty under what is now section 188(1) of the 1996 Act. Family Housing Association v. Jones [1990] 1 W.L.R. 779 is an example of a licence granted in such implementation, which was held to constitute a tenancy. One might expect that the grant of a tenancy, rather than a licence, in implementation of the duty under section 188(1), would be a rarity, even of self-contained accommodation. We do not have any evidence on this. However, the law reports include a number of cases where the local housing authority has granted a tenancy, not a licence, and experience of unreported cases suggests that these are not altogether exceptional. Poplar Housing and Regeneration Community Association Ltd v Donoghue (see paragraph 79 below) is a reported example, in addition to Eastleigh BC v Walsh.

Whether an agreement creates a licence or a tenancy matters, of course, for many purposes, but not for the purposes of the Protection from Eviction Act, apart (perhaps) from the effect of Mohamed v. Manek.

Mr Arden relied on Mohamed v. Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002] 1 AC 547 to show that a person who is living in accommodation which has been made available by a local housing authority under Part 7 of the 1996 Act is or may be “normally resident” in that district for the purposes of establishing a local connection under section 199 of the 1996 Act. So, he submitted, if such a person is normally resident in the relevant accommodation, how can it be said that he or she is not occupying that accommodation as a dwelling?

He also pointed to an apparent inconsistency, in that section 209(2) of the 1996 Act expressly provides that a tenancy granted by a private landlord in pursuance of arrangements made under Part 7, including under section 188, cannot be an assured tenancy until the end of a specified period. He submitted that this provision showed that, but for it, such a tenancy would be an assured tenancy. In order to qualify as such it would have to be a letting of a dwelling-house as a separate dwelling: Housing Act 1988 section 1. How, Mr Arden asked, can accommodation which is provided under section 188(1) at the same time be capable of falling within that definition, yet incapable of falling within the terms of section 3(2B) of the Protection from Eviction Act?

Turning to the Protection from Eviction Act itself, he relied on a number of features of the provisions as to excluded tenancies and licences. Express provision is made by this means to exclude holiday accommodation from the ambit of the Act: section 3A(7)(a). He argued that this is inconsistent with a reading of section 3(2B) as applying only if the accommodation is used only in a transient way, and not as a home. A holiday licence is plainly transient, and could not possibly be regarded as supporting occupation as a home, but he argued that the exception shows that, but for it, the case would or might have fallen within the principal provision under section 3(2B). He also drew an analogy and a contrast between the case of persons for whom accommodation is provided, on a temporary basis, under Part 7 of the 1996 Act, and that of those for whom a temporary licence is granted of premises if they have previously occupied those or other premises as squatters. The latter are expressly excluded under section 3A(6). By contrast the former are not expressly dealt with and so, he submitted, they are not excluded.

Furthermore, he pointed to the express provision to exclude tenancies and licences granted under Part 6 of the Immigration and Asylum Act 1999: section 3A(7A). He submitted that the provision of such accommodation is quite closely analogous to that provided under Part 7 of the 1996 Act. Such accommodation is provided on a temporary basis by way of support for asylum-seekers, pending the determination of the claim to asylum. He drew further support for this comparison from the matching exceptions from the status of tenancies as secure tenancies provided by the Housing Act 1985, Schedule 1, paragraph 4 (accommodation for homeless persons) and paragraph 4A (accommodation for asylum-seekers): see paragraphs 40 and 41 above. The exclusion of tenancies or licences entered into under these provisions of the 1999 Act shows that, but for section 3A(7A), such a tenancy or licence would or might have fallen within section 3. Section 3A(8) also excludes licences conferring rights of occupation in a hostel, if provided by, among others, a London borough council, but not, generally, if provided by a private landlord. This was considered in Mohamed v. Manek but it is irrelevant to the present case.

Taking those points together, he submitted that the Appellant was, first, plainly in occupation of the Flat, secondly, she was living there, so that it was her home and she was, for the purposes of section 199, “normally resident” there, thirdly, it was self-contained accommodation such as would undoubtedly be regarded as a separate dwelling for the purposes of the Housing Acts and, fourthly, until 14 June 2004 she was there lawfully, with the consent of the person otherwise entitled to possession and therefore, at least, by virtue of a licence. In those circumstances he asked, rhetorically, how it could be said that the Flat was not “premises occupied as a dwelling under a licence”, within the terms of section 3(2B) of the Protection from Eviction Act, so as to deprive her of the protection given by that section against being evicted otherwise than by court order.

Those are undoubtedly cogent arguments. As I have said, the argument against the conclusion which Mr Arden urged on the court is based on the decision of this court in Mohamed v. Manek, to which I will now turn.

The court consisted of Nourse, Henry and Auld LJJ. Auld LJ gave the first judgment. Nourse LJ gave a separate judgment but said that he agreed with Auld LJ on a number of points. Henry LJ expressly agreed with both of the other judgments.

Auld LJ held, first, that the council was not the owner of the relevant accommodation, and it had done nothing which could amount to evicting Mr Mohamed, so that it was not appropriate to be subjected to an injunction restraining it from evicting him. That would have been sufficient to dispose of the appeal. However, he went on to consider the other points that had been argued. He held that the Protection from Eviction Act did not apply to the accommodation which had been provided for Mr Mohamed. In relation to that he first reviewed cases decided under the Rent Acts and some under the homelessness legislation. He went on to say this, at pages 449-450:

“In my view, none of those cases, on their facts or holdings, are of assistance in this case. The question here is not simply whether the hotel room was “occupied” by Mr Mohamed as his residence or dwelling, but whether the council licensed him to occupy it as a dwelling. And, even if, contrary to my view, the agreement between the council and Mr Mohamed was a licence, it was clearly tailored to the fulfilment by the council of their statutory duty to arrange temporary accommodation under section 63 or 65 of the 1985 Act, no more.

The provisions in Part III of the 1985 Act for housing the homeless were formerly in the Housing (Homeless Persons) Act 1977. In my view, the provisions of the other Act of 1977, the Protection from Eviction Act, cannot have been intended to apply to the temporary housing by or on behalf of councils of the homeless. Under Part III of the 1985 Act councils have a public duty to secure accommodation under section 63 or 65 for many people. It is in the interests of good public administration that they should not have to commit their limited resources to securing accommodation for persons to whom, after making due inquiries, they properly decide they have no duty, at the expense of others to whom they may have a duty. The threshold for the duty is a low one, “reason to believe that an applicant may be homeless and have a priority need”. The inquiries may take only a few days and result in a decision that a temporarily housed applicant is not in fact homeless or in priority need. A council’s ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under section 63 for investigation of his application.

In my view, as a matter of construction of section 3(2B) of the 1977 Act, the expression “occupied as a dwelling under a licence” cannot apply to bed-and-breakfast accommodation of this sort, when, as here, it is provided pursuant to an agreement clearly intended as a purely temporary arrangement pending the making of inquiries under section 62. The council’s duty under section 63 is only to secure accommodation pending those inquiries and their decision as a result of them. It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks drawn from another statute dealing with the private rights and duties of landlords (licensors) and tenants (licensees) as between themselves. Nor does it accord with the ordinary use of language to describe temporary accommodation in a hotel or hostel for this purpose as premises “occupied as a dwelling under a licence”. In my view, that is so whether the council provide the accommodation themselves or arrange it through some third party, subject in each case, however, to any contrary agreement. The agreement here was plainly not to the contrary. It bore all the marks of an arrangement for the purpose of section 63 only, and not, in Lord Greene’s words, “as a matter of fair and reasonable construction of simple words” as premises occupied as a dwelling under a licence.”

He then decided in favour of Mr Mohamed a point of no relevance to the present case, about hostel provision, under section 3A(8) of the Protection from Eviction Act. He went on to deal with another point of general application, as follows:

“If, despite the facts as I have summarised them, the council’s decision not to continue the arrangement at the Thames Hotel was a decision to discontinue securing temporary accommodation under section 63 of the 1985 Act, as distinct from an attempt to evict him without notice contrary to section 3 of the 1977 Act, it was a public law decision. It is not the decision that Mr Mohamed has sought to challenge in these proceedings. He could not do so, because, as a general rule, it is contrary to public policy and an abuse of process to allow proceedings by way of an ordinary action to challenge a decision affecting rights entitled to protection under public law. See Cocks v. Thanet District Council [1983] 2 AC 286, H.L. Nor is this a case where a private right has come into existence as a result of the council’s public law decision, so that ordinary civil proceedings may be taken to require them to discharge their executive, as distinct from their decision-making, function, see e.g. per Lord Bridge in Cocks at 292H-293A; and Mohram Ali v. London Borough of Tower Hamlets (1992) 24 HLR 474, C.A. Here the public law decision, if there was one, not to continue to secure temporary accommodation to Mr Mohamed did not confer on him any private right. It is the public law decision itself that Mr Mohamed seeks to challenge. The only way he can do that is to seek leave to apply for judicial review. Such a procedure, in its provision for interim relief, is capable of providing much longer tenure pending determination of a substantive application than the four weeks’ notice provided by the 1977 Act.”

He concluded by saying that “for all those reasons” he would allow the council’s appeal.

Nourse LJ in his judgment agreed with Auld LJ that the council was not the owner and that its termination of the arrangements for Mr Mohamed at the hotel was not covered by section 3 of the Protection from Eviction Act, as well as agreeing on the point about the hostel. However, he explained the basis for his decision more generally, as follows:

“I rest my decision primarily on the simple proposition, derived from a purposive construction of both statutes, that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authority’s inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy [or] (Footnote: ¹) premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. The context and purpose of section 63(1) have been fully considered by Auld LJ and I agree with the views he has expressed. Moreover, it cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1). True, the general rule may be displaced by an agreement between an authority and an applicant such as had been entered into in Eastleigh Borough Council v. Walsh [1985] 1 W.L.R. 525, or perhaps if the applicant’s occupation is allowed to continue on a more than transient basis. But there was no such agreement or occupation here, nor anything else to take the case out of the general rule.

Judge Phelan, having referred to the judgment of Lord Denning M.R. in Luganda v. Service Hotels Ltd [1969] 2 Ch. 209 at 218-219, said that that case was from a long time ago and that here he was dealing with the rather different situation of the homeless in 1994. He added:

“Certainly persons spending a few nights in a hotel normally have a dwelling elsewhere. This is not the situation of the homeless who have no dwelling. Where else would the Plaintiff be dwelling, even if for a very short time?”

Those observations suggest that the judge proceeded on an assumption that everyone must have a dwelling somewhere. In my view the 1977 Act makes no such assumption. Without some element of more than transient occupation, premises cannot properly be called a dwelling. Lord Denning’s observations are as valid now as they were in 1969. The two authorities relied on by the judge, Thurrock UrbanDistrict Council v. Shina (1972) 23 P. & C.R. 205 and Thrasyvoulou v. LondonBorough of Hackney (1986) 18 H.L.R. 370, are readily distinguishable.”

Mr Arden submitted that, at most, Mohamed v. Manek was binding as a decision in relation to accommodation of the nature of a hostel, such as the plaintiff in that case had, and such as was provided for the Appellant in the present case at the earliest stage of a local authority’s enquiries, but not to self-contained accommodation such as she had after 23 December 2003. He said that hostel accommodation might perhaps not be regarded as occupied as a dwelling, but that once the Appellant had moved into the Flat, that situation could not fairly be denied the description of occupation “as a dwelling”.

Several grounds of decision appear in Auld LJ’s judgment in Mohamed v. Manek. Having dealt with the first, namely that the council was not the owner, he said that “on that ground alone” he would decide the case in favour of the council. Nevertheless he went on to consider other points which had been argued, and concluded by saying that he would allow the appeal “on all these grounds”. He might have expressed himself differently, as not deciding the other points, but he having said what he did, it seems to me that all the several grounds must be regarded as reasons for his decision. Thus, leaving aside the presently irrelevant point about the hostel, he held that:

Mr Arden would be entitled to contend, if the matter rested there, that the second proposition related specifically to the nature of the accommodation in question, namely bed and breakfast accommodation, or hotel accommodation, and he could reasonably seek to distinguish the case on the facts. The first point is one which Mr Arden does not dispute, and the third, which focuses on a challenge to the council’s decision rather than to any attempt to evict the occupier, does not in itself matter for Mr Arden’s purposes. The issue of a challenge to a local housing authority’s decision would now arise under the provisions for a review of, and then an appeal against, the local authority’s decision, under sections 202 and 204 of the 1996 Act.

But the matter does not rest there. Nourse LJ agreed with Auld LJ on some points, but set out a broader proposition of his own. The central point of his decision is “that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authority’s inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy [or] premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977”. That is not limited to accommodation of the nature of a hotel or hostel such as Mr Mohamed was in, but is a general proposition as regards any accommodation made available under section 63(1) of the 1985 Act, now section 188(1) of the 1996 Act.

That was clearly part of the basis for his decision. Henry LJ expressly agreed with both judgments. Thus the points enunciated by each of Auld LJ and Nourse LJ were adhered to by two members of the court. In those circumstances it does not seem to me that Mr Arden can successfully attenuate the effect of the decision in Mohamed v. Manek by submitting that the basis of the decision is specific to hostel or hotel accommodation, and that it does not apply to self-contained accommodation of the kind which was made available for the Appellant from 23 December 2003. Nourse LJ and Henry LJ decided the case on grounds which, among other things, covered any accommodation made available under what is now section 188(1), absent a special arrangement.

Nourse LJ referred to Eastleigh BC v. Walsh [1985] 1 WLR 525 as a case in which the parties had entered into an agreement which displaced the general rule: see the first paragraph quoted from his judgment at paragraph 59 above. The particular agreement which had been used in that case was described by the parties as a tenancy, and was held to be one.

Giving judgment in the present case, His Honour Judge Roberts, in the Bow County Court, expressed the tentative view that the proposition that the premises were not “occupied as a dwelling under a licence” was not part of the reasons for the decision of the court in Mohamed v. Manek, but, not surprisingly, he concluded that he ought to follow it even if it was properly to be regarded as not strictly necessary to the decision. For the reasons I have given, I respectfully disagree on the first point. Newham served a Respondent’s Notice asserting that this proposition was necessary to the decision. In my judgment this is correct. The judge did, however, at paragraph 25 of his judgment, say that:

“the decision in Manek is not limited to its particular facts nor to single persons in hotel or hostel accommodation, but is of general application to all types of temporary accommodation provided or secured by the housing authority under section 188(1).”

I agree with that conclusion. I observe that the decision does, in terms, relate only to accommodation secured under the interim duty under section 188(1). Because of the close connection between the two provisions, it would also apply to arrangements made under section 190(2)(a). The reasoning does not apply, expressly or by necessary implication, to arrangements under section 193.

Nourse LJ’s formulation of his general principle referred both to premises let as a dwelling under a tenancy, to which section 3(1) would be relevant, and to premises occupied as a dwelling under a licence, for which section 3(2B) is the relevant provision. By contrast Auld LJ focussed only on occupation under a licence and therefore on section 3(2B). When he said (in the first of the paragraphs quoted from his judgment at paragraph 56 above) that he did not consider the agreement between the council and Mr Mohamed to be a licence, he was referring to the fact that the council was not the owner of the premises so that there was no agreement between the council and Mr Mohamed for the occupation of the premises at all. On that basis Mr Arden’s submissions did not differentiate according to whether the Appellant had been a tenant or a licensee. On the facts of the present case HH Judge Roberts referred (at paragraph 8 of his judgment) to her occupation as having been pursuant to a licence. In Mohamed v. Manek there had been no finding as to the legal basis of the occupation, because the appeal was against the grant of an interim injunction. However, given that occupation of the accommodation was charged for at a daily rate, and that, having commenced on 3 October, it was terminated by a notice dated 6 October with effect (originally) from 10 October it seems quite likely that it was a licence.

Perhaps for that reason, in my consideration of the effect of the decision in Mohamed v. Manek I have proceeded on the basis that it is binding (subject to the other arguments which I deal with below) as a decision in relation to section 3(2B) only, and that someone for whom accommodation was provided under section 188 by way of a tenancy would have the protection of section 3(1) of the Protection from Eviction Act, despite the decision in Mohamed v. Manek. For reasons which appear below, this is a significant factor in my reasoning. The proposition that Mohamed v. Manek applies both to licences and tenancies featured in the skeleton argument for the Appellant, but was not elaborated in argument during the hearing, and it was only on receipt of written submissions from Counsel in advance of the handing-down of the judgment that it came to my attention that my assumption may have been mistaken in that, because of the way in which Nourse LJ expressed himself, Mohamed v. Manek could be said to be a binding decision as regards section 3(1) as well as in relation to section 3(2B). Because my Lords disagree with me on the point to which the possible difference would be relevant, it does not affect the outcome of the case, and it is unnecessary to decide whether Mohamed v. Manek is a binding decision in relation to former tenant occupiers or only in relation to former licensee occupiers. I therefore leave open for future debate the question whether Mohamed v. Manek does apply to both licensees and tenants or only to licensees, but for present purposes I treat it as applying only to licensees.

On the basis that, for the reasons given above, the ratio of Mohamed v. Manek includes a proposition inconsistent with the application of the Protection from Eviction Act to the Appellant’s situation, Mr Arden first submitted that the decision in Mohamed v. Manek was not binding because it was decided per incuriam. He did not identify any particular statutory provision directly relevant to the question which the court had overlooked, but rather said that the court had failed to take account of the overall statutory framework, of which the provisions which they had to construe formed part. He said that the court had not had regard to the fact that the language of section 58(1)(c) of the Housing Act 1985, replacing a provision in the Housing (Homeless Persons) Act 1977, was clearly derived from the Protection from Eviction Act, and further had not had regard to the provisions of paragraph 4 of Schedule 1 to the Housing Act 1985. He also submitted that Auld LJ’s comments about housing benefit had been made without appreciating the terms of the legislation as regards housing benefit, and were incorrect and inconsistent with his overall conclusion. Even if he were right in his contention as to the court’s failure to take account of that legislation, that would not be within the per incuriam exception to the stare decisis rule.

Young v. Bristol Aeroplane Co Ltd [1944] KB 718, the starting point for any consideration of the per incuriam exception, spoke of a decision given in ignorance of the terms of a statute or a rule having the force of statute. In Morelle Ltd v. Wakeling [1955] QB 379 the principle was stated as applying to decisions given in ignorance of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. In Miliangos v. George Frank Textiles [1975] QB 487, Lord Denning reviewed these and other cases at 503, and pointed out that “a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.” In Duke v. Reliance Systems [1988] QB 108 the failure of the court to have regard to a European Community Directive was held not to justify regarding the previous decision as per incuriam. Lord Donaldson MR put the doctrine at 113 as applying only “where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision”. Rakhit v. Carty [1990] 2 QB 315 was one of the rare cases where a previous decision was found to be within the normal categories of per incuriam, because the earlier decision was made in ignorance of a vitally relevant statutory provision, which showed it to be wrong. The earlier decision was therefore not followed: see 326-7. R (W) v. Lambeth Borough Council [2002] EWCA Civ 613 is another example of the same kind.

There have been other recent cases in the field of landlord and tenant law where the Court of Appeal has held that a previous decision had been made per incuriam, and was not to be followed, because there had been successive conflicting decisions: see Esselte AB v. Pearl Assurance plc [1997] 1 W.L.R. 891 and Starmark Enterprises Ltd v. CPL Distribution Ltd [2001] EWCA Civ 1252, [2002] Ch 306.

In Wellcome Trust Ltd v. Hamad [1998] QB 639, the principle was applied in somewhat different circumstances. There the Court of Appeal refused to follow a previous decision (Pittalis v. Grant [1989] QB 605) which it held had adopted an incorrect construction of the Rent Act 1977, failing to give proper effect to the decision of the House of Lords in Maunsell v. Olins [1975] AC 373, even though that decision was cited in Pittalis v. Grant. At page 657 of the report the court said this:

“There is, however, nothing in Pittalis v. Grant to show that the court gave any consideration to the words of qualification in section 24(3) [of the Rent Act 1977] or their effect. It is difficult to escape the conclusion that the decision was reached without the attention of the court having been drawn to the significance of these words.

The argument upon which this court relied in Pittalis v. Grant was fallacious. It amounted to saying that “if a tenancy is not regulated, the premises to which it relates cannot be, or be treated as, a dwelling house.” Premises may amount to a dwelling house without being let on a regulated tenancy. More importantly, in reaching the conclusion the court appears to have overlooked all of the authorities in which Lord Wilberforce’s “accepted principles” are contained [i.e. in his speech in Maunsell v. Olins]. That they are the source of the accepted principles is agreed by counsel for all parties now before the court. Unless, therefore, the court’s decision in Pittalis v. Grant can be sustained by other means, it must have been reached per incuriam and should not be followed.”

It is difficult to fit this case into the established principles about per incuriam, since the previous court had not overlooked Maunsell v. Olins itself or the relevant statutory provisions, and the only authorities said to have been overlooked were those on which Lord Wilberforce based the ratio of his speech in Maunsell v. Olins. Thus it appears to be a case in which the court refused to follow a previous Court of Appeal decision on the point, because it was inconsistent with a yet earlier House of Lords decision. In Williams v. Glasbrook Brothers Ltd [1947] 2 All ER 884 that was said to be an inadequate basis for invoking the per incuriam exception. It was said to be for the House of Lords to correct the previous Court of Appeal’s error, and not a function open to the Court of Appeal in a later case. However that may be (and Williams v. Glasbrook Brothers Ltd appears not to have been cited in Wellcome Trust Ltd v. Hamad), the present case does not have the feature of a previous House of Lords decision with which the earlier Court of Appeal decision could be said to be inconsistent. At its highest, Mr Arden’s submission is that the decision in Mohamed v. Manek, insofar as it turns on the wider proposition set out in the judgment of Nourse LJ, is not the correct interpretation of the very statutory provision which the court was addressing in that case.

There is, in addition, an exceptional residual category of cases which are not strictly per incuriam, but where the court has refused to follow a previous decision. Examples include Williams v. Fawcett [1986] QB 604 where the court refused to follow previous decisions which it held were subject to a manifest slip or error as to the procedure to be followed as regards committal, and Rickards v. Rickards [1990] Fam 194 where the court followed Williams v. Fawcett in relying on the exceptional residual category of cases not defined in Young or Morelle. In that case it refused to follow a previous decision of the court because, although the relevant House of Lords decision had been cited, the later court held that the earlier court had misread or misunderstood the House of Lords case. It was a significant feature of the latter case that there was no possibility of an appeal to the House of Lords if the previous decision were to be followed. Lord Donaldson spoke, at 203F, of the “preferred course” being “to follow the previous decision, but to give leave to appeal in order that the House of Lords may remedy the error”, but that course was, for particular reasons, not available in that instance.

Mr Arden is not able to resort to the exceptional residual category of cases. He has to bring his submission within the parameters of the per incuriam exception. Except by reliance on Wellcome Trust Ltd v. Hamad, he cannot do so, because, that case apart, it has not been regarded as sufficient to say that the court failed to appreciate properly the effect of provisions which were cited to it, or overlooked provisions of only marginal or contextual relevance. The decision must have been reached in ignorance of relevant and crucial provisions which would have compelled a different result. That is not true of Mohamed v. Manek. It seems to me that Wellcome Trust Ltd v. Hamad does not justify accepting Mr Arden’s contention that the decision in Mohamed v. Manek was per incuriam, not least because, whether right or not, it did at least have the added feature of a previous House of Lords decision on the true construction of the relevant statutory provisions. Here all we have is the Protection from Eviction Act and the single relevant decision on the point in Mohamed v. Manek, in the Court of Appeal.

Wellcome Trust v. Hamad was not cited to us in argument, and came to light only late in our consideration of the case. Though worthy of note, it did not alter the view that I had formed on this point. It therefore seemed unnecessary to delay the process of preparing our judgments still further by inviting submissions from Counsel on the point.

Mr Arden referred to passages in the judgments of both Auld and Nourse LJJ which recognise that there may be situations to which the general rule set out in that case does not apply. Auld LJ used the words “subject in each case, however, to any contrary agreement”. Nourse LJ said “the general rule may be displaced by an agreement between an authority and an applicant such as had been entered into in Eastleigh Borough Council v. Walsh [1985] 1 W.L.R. 525, or perhaps if the applicant’s occupation is allowed to continue on a more than transient basis”. He therefore submitted that, even if Mohamed v. Manek was binding, the present case fell outside it because of its particular facts. However, the agreement between the parties in the present case was in no way exceptional. It was a standard form of agreement between PCHA (acting for Newham) and the Appellant which has no feature that could be regarded as taking it out of the normal case of the provision of accommodation under section 188(1). If this were a special case, there would be no normal cases. There is nothing comparable in this case to the express tenancy which was granted in Eastleigh BC v. Walsh.

Mr Arden also fastened on Nourse LJ’s words about the occupation being allowed to continue on a more than transient basis, and submitted that, when the Appellant was provided with the Flat in December 2003, which (as the judge observed) had only basic furniture and equipment, so that she had to provide her own bedding, crockery, cutlery, kitchen equipment and other items, and when she remained there for almost 5 months before notice was given, that was a more than transient basis of occupation. Clearly it was more than transient as compared with the position of Mr Mohamed in Mohamed v. Manek, who had only been in the hotel accommodation for 3 days before the council brought the arrangements to an end. Mr Arden submitted, rightly, that sometimes it takes a long time for a council to complete its enquiries under section 184, so that temporary arrangements made under section 188(1) may last for months or even years (Footnote: ²), long enough not to be fairly described as transient. But his submission on the nature of the arrangements made for the Appellant to be accommodated at the Flat does not depend, intrinsically, on its having lasted for any given period, nor could it, since the period of time required for the enquiries is unpredictable and uncertain. He relied, as I have said, on the nature of the accommodation and the limited facilities and equipment provided with it. It does not seem to me that these features are sufficient to distinguish Mohamed v. Manek. The facts would need to be much more clearly an exception to the general practice under Part 7 to justify deciding that this case is outside the scope of the general principle enunciated in that case, and within an exception by reference to particular facts, whose recognition did not subvert the stated basis of the decision.

We were shown the decision of Elias J in Rogerson v. Wigan MBC [2005] HLR 10, in which the judge had to consider both whether Mohamed v. Manek was still binding and whether the facts of that case were covered by the prior decision, having regard in particular to the emphasis on transience which emerges from the judgment of Nourse LJ. He referred to a possible situation in which the authority permits the occupier to remain in the premises for a period which is no longer reasonably referable to the decision to accommodate him temporarily pending enquiries. As Judge Roberts said in his judgment in this case, that proposition would be of no help to the Appellant, since there is no basis for saying that between late December 2003 and mid May 2004 the basis on which the Appellant was being permitted to occupy the premises had changed at all. In those circumstances I need not consider the merits of Elias J’s formula.

I would therefore reject Mr Arden’s contention, which it is fair to say was not his main argument, that the general principle stated in Mohamed v. Manek does not apply to the facts of the present case.

Mr Arden submitted that the state of the legislation at the time relevant for the present case, namely in May 2004, when Newham gave notice to the Appellant bringing to an end the arrangements made for her accommodation, was different in significant respects from that which it took at the time relevant to Mohamed v. Manek, and that accordingly that decision is not binding in relation to the present legislation. He pointed to the fact that at the time of Mohamed v. Manek there was no relevant requirement that the accommodation be suitable. Section 69 of the Housing Act 1985, as amended in 1986, referred to the authority securing that the applicant obtain “suitable accommodation” from another person but, as noted above (paragraph 42), this did not then apply to the interim duty under section 63. With the passing of the 1996 Act, section 206 did apply the requirement of suitability to accommodation provided under the interim duty under section 188(1), and that aspect of the duty was given greater content, under section 210 of the 1996 Act, by the statutory instrument made in 2003 and mentioned above (paragraph 32). Nevertheless, even ignoring the fact that this was not in force at the time when the Flat was made available to the Appellant (in December 2003), it does not seem to me that this affects in any way the basis or reasoning of the decision in Mohamed v. Manek. Nothing in that decision turned on the quality or otherwise of the accommodation, other than Auld LJ’s reasoning by reference to temporary accommodation in a hotel or hostel. Nourse LJ’s reasoning did not make reference to the type of accommodation which was made available. In my judgment the changes to the legislation since its state as relevant to Mohamed v. Manek do not affect the basis of that decision, and cannot therefore be regarded as rendering it no longer binding on the points which it decided, so far as relevant to the present case.

Next, Mr Arden relied on decisions since Mohamed v. Manek on the meaning of “dwelling”, some in the context of article 8 of the European Convention on Human Rights. He submitted that Mohamed v. Manek could not stand with those decisions, insofar as it depended on the construction of the word “dwelling” in the Protection from Eviction Act, and that it should therefore be regarded as having been implicitly overruled.

He cited Uratemp Ventures Ltd v. Collins [2001] UKHL 43, [2002] 1 AC 301. In that case the question was whether a room in a hotel was a “dwelling-house let as a separate dwelling” within the meaning of section 1 of the Housing Act 1988, and as such was let on an assured tenancy, despite the fact that it had no kitchen or other cooking facilities. The House of Lords held that cooking facilities were not an essential characteristic of a dwelling. The speeches emphasise that “dwelling” or “dwelling-house” is not a technical term but an ordinary and familiar (if rather old-fashioned) word in the English language. It does not seem to me that anything in the speeches in this case affects any part of the reasoning of the Court of Appeal in Mohamed v. Manek. It is true that Auld LJ cited Westminster City Council v. Clarke [1992] 2 AC 288, in which Lord Templeman referred to cooking facilities as being essential to a dwelling-house. Nothing turned on the presence or otherwise of cooking facilities in that case, nor in the present case. That reference, therefore, and its inconsistency with Uratemp Ventures v. Collins, is irrelevant to the reasoning in Mohamed v. Manek and accordingly to its status as a binding authority. I cannot, therefore, accept Mr Arden’s submission that Mohamed v. Manek is inconsistent with this later decision of the House of Lords, and for that reason no longer binding.

The main other case relied on by Mr Arden in this context related to article 8 of the European Convention on Human Rights, and calls for separate consideration. He did also cite Mohamed v. Hammersmith and Fulham LBC, to which I have already referred (paragraph 49). I do not consider that this case requires further reference in this context.

Mr Arden’s most powerful argument, as it seems to me, for limiting the effect of Mohamed v. Manek, is that the reading of the Protection from Eviction Act resulting from the decision is inconsistent with the rights of the occupier under the European Convention on Human Rights, in particular articles 6 and 8, and that therefore, in order to comply with section 3 of the Human Rights Act 1998, the Protection from Eviction Act must now be construed differently.

The two articles are as follows, so far as relevant:

Article 6:

“1

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

Article 8:

“1

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Mr Arden’s contention is that the Flat constituted the Appellant’s home, for the purposes of article 8, by May 2004, so that she was entitled to the right of respect for it. He said that this was incompatible with her being subject to eviction from it without a court order. He also argued that the absence of any requirement for court proceedings was inconsistent with article 6.

For the Respondents, Mr Matthias contended that article 6 did not apply because the Appellant had no relevant right which qualified as a “civil right” in Convention terms. His submission was that her rights all lay in public law, not in private law. So far as article 8 is concerned, he submitted that the Appellant would have no defence to a claim for a possession order and that, in those circumstances, article 8 did not apply.

At the time of the hearing, the leading case on article 8 in this field was the decision of the House of Lords in Harrow LBC v. Qazi [2003] UKHL 43, [2004] 1 AC 983. Just before the hearing of this appeal, arguments had been addressed to the House of Lords in two other cases in which the correctness of Qazi was reviewed: Leeds City Council v. Price and Kay v. Lambeth LBC. (I will refer to the case as Kay v. Lambeth LBC, for short, except where it is necessary to refer separately to the facts of the Leeds case.) Because of the potential relevance of the decisions in those cases, we decided to defer giving judgment until after the House of Lords had decided those appeals, which they did on 8 March 2006: [2006] UKHL 10, [2006] 2 W.L.R. 570. We invited and received further written submissions from Counsel in the light of the decision.

It seems to me that article 8 is the Convention provision which matters for present purposes, but I will first deal with the arguments addressed to us in relation to article 6.

So far as article 6 is concerned, Mr Arden’s submission is that the case is very clear: if the judge is right, the Appellant is not entitled to a hearing at all to determine her rights, such as they may be, as regards the property. The fact that she has in this instance taken the initiative does not make a difference, because she might not have been able to do so, and the question has to be considered on a general basis as to the position of persons in her situation.

Mr Matthias’ answer to the case under article 6 was to say that the Appellant does not have “civil rights” in this situation which fall to be determined by a court or otherwise. He argued that a person such as the Appellant for whom the availability of accommodation is secured by a local housing authority under Part 7 of the 1996 Act is the object of public law duties and has no relevant private rights in relation to any particular accommodation which is provided.

I cannot accept that submission. Mr Matthias prayed in aid words of Auld LJ in Mohamed v. Manek. He also relied on the decision of the House of Lords in Runa Begum v. Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430. That case did concern the position of an applicant who had been found to be homeless, in priority need, and not to have become homeless intentionally. She was offered accommodation which she rejected as not suitable. She appealed under section 204. In the county court it was held that the review under section 202 had not been by an independent body and that her rights under article 6 had been infringed. The Court of Appeal reversed that decision and she appealed to the House of Lords. The House of Lords declined to decide whether her right to have suitable accommodation made available for her was a civil right within the terms of article 6, which they said was a difficult question on the Strasbourg jurisprudence. Assuming that it was a civil right they held that it was not infringed by the combination of the review process and the right of appeal under sections 202 and 204, taken together.

The right under consideration in that case was therefore different from the right which Mr Arden asserts on behalf of the Appellant. Premises had been made available to her, and she had been in occupation of them. The only issue concerned the circumstances in which her ability to occupy those premises could be brought to an end, her right to do so having already come to an end. In Runa Begum at paragraph 70 Lord Hoffmann said this:

“Runa Begum’s private law rights as an unsecured tenant of the council were unaffected by its decision as to whether or not it continued to owe a duty under section 193. The council was entitled to terminate the tenancy by notice at any time, whatever its duties under Part VII might be. If it terminated her tenancy when she was still owed a duty - for example, because it thought that flat was more suitable for another person - it would have had to find her somewhere else to live. But that statutory duty would not affect her private law rights in respect of the flat in Limscott House.”

The latter accommodation was that which had been provided for the applicant on a temporary basis pending enquiries under section 188(1), after an initial period in a hotel. It was thus comparable to the Flat which was provided for the present Appellant; the different result of the council’s enquiries made no difference in principle to the status of the interim accommodation.

I cannot accept Mr Matthias’ submission that an applicant who is provided with accommodation in pursuance of a local housing authority’s duties under section 188(1), or for that matter under any of the duties in Part 7 of the 1996 Act, has no private rights in respect of that accommodation. What rights he or she has will depend on the nature and terms of the agreement under which the accommodation is provided, but it seems to me plain that there will be some private rights, and indeed obligations. That also emerges from the passages cited above at paragraph 44 and following. Accordingly, article 6 cannot be regarded as inapplicable on the basis that no civil rights fall to be determined. To the extent that this is not consistent with what Auld LJ said in Mohamed v. Manek, as cited in paragraph 5757 above, based on Cocks, it seems to me that this cannot stand with the later decision in O’Rourke, in which Cocks was explained and qualified: see paragraph 44.

A different argument would be that no civil rights come into question because the Appellant has none, having no defence to the claim for possession. That, however, assumes the answer to the question which has to be posed. It may be a formality to have a hearing, if one is necessary at all, but the hearing would enable the defendant occupier to test the case for the claimant as to the basis on which it is said that he or she must leave. If there is any question as to whether the right steps have been taken, the hearing allows that question to be asked, and compels the court to address it, if it is of any substance.

Nevertheless, the question here is quite different from that at issue in Runa Begum. In that case there was provision for a hearing, and the question was whether it satisfied the requirements of article 6 as regards independence and otherwise. Here there is no provision for a hearing at all, but if one were held (if the owner chose to apply for a possession order, as we were told some authorities do as matter of course) it would undoubtedly be before a tribunal which would, absent unusual circumstances particular to a given case, satisfy the requirements of the article. For those reasons it seems to me that the article which is relevant to the present case is article 8, rather than article 6.

Mr Matthias made a separate point, namely that an applicant’s continued accommodation pending the review process, and then the appeal process, is a matter of discretion for the authority, and therefore did not afford her any private rights: see R v. Brighton & Hove Council ex parte Nacion (1999) 31 HLR 1095. On the facts, however, at the time when the proceedings were commenced the Appellant was not, as I understand it, being accommodated under such a discretionary power. She had been accommodated under section 188(1), at first pending enquiries and then, once the enquiries were complete, pending the expiry of a period of notice. Alternatively, her occupation after notice was pursuant to section 190(2)(a). The notice period expired on 14 June 2004. Thereafter she just stayed there, and the proceedings were begun on 23 June. There was no suggestion that Newham had exercised a discretion in her favour in those few days to arrange accommodation for her, in the same premises, pending the review. Her occupation was therefore not referable to the authority’s discretion under section 188(3).

The recent decisions in the House of Lords must inform any consideration of article 8 in relation to an issue concerning housing, although as a matter of decision they only relate directly to one point in the present case.

In Qazi a local housing authority sought possession of a house from Mr Qazi. He and his wife had been joint tenants of the house but the latter had left and had terminated the tenancy, with the result that Mr Qazi had no continuing right to be there. He defended the proceedings on the basis that the house was his home, and that to make a possession order would infringe his article 8 rights, not being justifiable under article 8(2). The Court of Appeal held that the house was his home and remitted to the county court the issue of justification. The House of Lords, by a majority, held that the case should not be remitted as there could be no doubt of the possession order being justified.

In Kay v. Lambeth LBC the correctness of Qazi was reviewed, in the light of an intervening decision of the European Court of Human Rights, Connors v. UK (2004) 40 EHRR 189. In Leeds City Council v. Price, travellers had moved on to a recreation ground owned by the council. Two days later the council started proceedings for possession. In Kay v. Lambeth LBC, Lambeth borough council had granted a lease of several premises to a housing trust which, in turn, granted tenancies to occupiers. The council terminated the housing trust’s lease and contended that the occupiers were then trespassers. The occupiers relied on article 8 as a defence (as well as on other points not relevant to the present case).

The House of Lords accepted that Mr Qazi’s house was his home, as were the houses occupied in the Lambeth cases. The recreation ground in Leeds, on the other hand, was not the home of the travellers, for article 8 purposes.

That seems to me to reinforce the proposition that, whereas the accommodation in issue in Mohamed v. Manek may not have been the home of the plaintiff in that case, in an article 8 sense, the Flat was the home of the Appellant in that sense. Accordingly the Appellant was entitled to the benefit of article 8 in respect of her occupation of the Flat.

However, even though her rights in respect of the Flat were arranged by PCHA on behalf of Newham, the owner, Veni, is not a public authority and any steps taken by it to retake possession could not constitute action taken by a public authority in breach of her Convention rights. Accordingly, in order to be able to succeed against Veni, she has to be able to show that the Protection from Eviction Act must now be construed differently from the reading given to it in Mohamed v. Manek, justifying this by reference to section 3 of the Human Rights Act 1998 and the obligation on the court to construe legislation in a way which is compatible with Convention rights, in this case with the Appellant’s rights under article 8. Thus the submission does not depend on the particular facts of this case or of any case.

It seems to me that the argument turns on the question of proportionality under article 8(2). The steps in the reasoning are these.

Mr Arden submitted that respect for the Appellant’s home requires that she be not subject to being evicted without court proceedings. He pointed out that, apart from section 3 of the Protection from Eviction Act, the Appellant could have been evicted simply by the locks being changed at a time when she and her children were out, even perhaps with the exercise of force, so long as it was no more than reasonable: compare Warder v. Cooper [1970] 1 All ER 1112 where the locks were changed during the absence of the former licensee, but while his possessions were still in the property. The threat that this would be done was that which prompted the bringing of these proceedings and the grant of interim injunctions against all the Respondents. He submitted that, in the context of the European Convention on Human Rights, the Protection from Eviction Act was part of the legislative system which was designed to ensure proper respect for the home of an individual, (even for a home which the occupier no longer has any legal right to occupy, as in Warder v. Cooper) and that its effect should not be read as subject to exceptions unless these are plain and clear in the terms of the legislation. The proper and orderly treatment of processes of eviction from residential premises was the very object of the Protection from Eviction Act, and its antecedents, the Protection from Eviction Act 1964 and the corresponding provisions of the Rent Act 1965.

Mr Arden accepted that the Appellant would have no substantive defence to a claim for possession, just as the plaintiff in Warder v. Cooper had none but was nevertheless held to be entitled to an injunction. He did not challenge the judge’s observation that:

“It is not contended by the Claimant in these proceedings that she has any security of tenure in the flat or any greater right than a right arising under the Protection from Eviction Act 1977 not to be evicted otherwise than by virtue of an order of the court.”

It seems to me that there are at least two reasons why the requirement of a court order for eviction can be regarded as an important safeguard for the occupier. One is that there may be cases, unlike the present, where the eviction would not be in accordance with law, for example if the licence had not yet been terminated. If the owner has to go to court in order to evict the occupier, the latter has an assured opportunity to have that question tested by the court without having to take the initiative. The other is that, even if the occupier has no continuing legal right to remain in the premises, it may be better that the process of enforced eviction should be dealt with in the formal way necessary with court proceedings, and in particular with notice to the occupier of the proceedings, the hearing, the order and the appointment for eviction in execution of the order. In relation to any eviction there is a risk that force may be used, which is lawful so long as it is no more than reasonable. It seems to me that this lends support to the idea that court proceedings should be necessary, because a possibility of the use of force in the context of the execution of a court order, of which the occupier will have had notice at several prior stages, could be regarded as more acceptable than the risk of the use of such force in relation to an eviction without any prior court proceedings, possibly without any prior notice, and maybe at a time of day particularly inconvenient for the occupiers. That is especially so if (as here and as is common) the accommodation is the home of a mother and children (and if, as here and as is also common, one of the children was very young), so that, upon the eviction, the family becomes once again homeless.

The disadvantage of a requirement of a court order is that, if the occupier does not have any continuing right to remain in possession, the requirement would extend, potentially by a period of some months, the time during which the occupier is there and the premises cannot be made available to someone else, to whom the local housing authority may owe a duty under Part 7 or otherwise. In addition, the need to take court proceedings will add to the expense incurred.

Before the judge some evidence was given about the implications for local authorities of a decision in favour of the Appellant. Newham’s witness gave evidence that if a court order was required in every case of a homeless family occupying separate premises such as the Flat, increased costs would be incurred, rendering it necessary to apply substantially greater resources to this aspect of Newham’s operations. He was cross-examined on this evidence. The judge, at paragraph 24 of his judgment, held that in a case such as the present, Newham would not find compliance with the Protection from Eviction Act onerous. Nevertheless he recognised that cases differed greatly and he considered that a general requirement to take court proceedings might very well involve unwarranted interference with the performance of the statutory duty of the local housing authority, to the detriment of some applicants to whom it owes the duty.

In the light of those comments both the Respondents and the Appellant applied for permission to adduce fresh evidence on the appeal going to the question of whether there would be any significant extra burden on this local housing authority, or such authorities generally, if the Protection from Eviction Act applied in these circumstances. The Appellant’s extra evidence was produced in response to that of the Respondents, though it was of a different kind. For my part I would not grant permission to either party to adduce any of this additional evidence. The Respondents’ evidence did not seem to me to satisfy the Ladd v. Marshall test ([1954] 1 W.L.R. 1489), in that it could have been obtained for use at trial if it had been thought useful or relevant. In essence it did little more than seek to reinforce points already made. If that is not to be admitted, there is no basis for allowing in that which the Appellant seeks to add.

Accordingly, the question must be addressed on the basis that, if it were necessary to take court proceedings in every case in which the occupier refuses to leave otherwise, in order to comply with the Protection from Eviction Act, there would be likely to be at least some additional burden of expense on local housing authorities, such that the performance of their statutory duties under Part 7 of the 1996 Act as a whole would require more resources, and that this might get in the way of the proper discharge of these duties to some people to whom they are owed.

To revert to the recent House of Lords cases, the need for the relevant procedural safeguard was not a feature of either Qazi or Kay v. Lambeth LBC. Nevertheless reference was made in some speeches in each case to the need for a court order.

In Qazi, Lord Hope of Craighead and Lord Millett (both in the majority) referred to the fact that a court order was needed. Lord Hope said, at paragraph 36:

“The question which lies at the heart of the case is whether, having regard to the provisions of article 8(1) of the Convention, it is unlawful for a public authority to recover possession from a former tenant by a procedure which leads to possession being granted automatically, or whether the court must always be given an opportunity to consider whether the making of an order for possession would be proportionate. If the answer to that question is that the court must always be given that opportunity, it will be in the discretion of the court in all cases to decide whether or not an order for possession should be made. This will be so not only in those cases where there are statutory safeguards that must be satisfied. The court will have a discretion to exercise even in those cases where the tenancy has come to an end by the operation of law, there is an absolute right to possession and there are no statutory safeguards other than the basic rule that possession cannot be taken without an order from the court: see the Protection from Eviction Act 1977, section 3.”

He also said, at the end of paragraph 78:

“My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.”

Lord Millett said, at paragraph 109:

“I would accordingly endorse the observations of Moses J in R (Gangera) v. Hounslow London Borough Council [2003] EWHC Admin 794 that in proceedings between private parties the court does not act incompatibly with article 8 by making or enforcing a possession order without considering questions of proportionality. I also agree with him that it makes no difference that the landlord is a public authority. In most cases the statutory scheme established by Parliament will provide the objective justification for the council’s decision to seek possession, which need not be demonstrated on a case by case basis: see Wandsworth London Borough Council v. Michalak [2003] 1 WLR 617, 631 - 632. In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant’s home.”

Mr Arden is entitled to submit that Lord Hope’s reference to “proof that the tenancy has been terminated” is implicitly a reference to the fact that court proceedings are necessary, in which the owner can and must prove that the licence or tenancy has been terminated. Although, if this is proved, the court will have no basis on which to deny the owner a possession order, the necessity for court proceedings will at least give the occupier the chance, if it be relevant, to challenge the assertion that the licence or tenancy has been terminated.

The point was mentioned in several of the speeches in Kay v. Lambeth LBC as well. Lord Hope said this, at paragraph 70:

“The European court leaves questions of procedure to the contracting states. Its only concern is that procedures are in place which enable individuals to assert their Convention rights where there is a live question as to whether or not they have been violated. How this is to be done is a matter for the domestic system. There is therefore no objection in principle, on Convention grounds, to a system which treats cases where a violation of article 8 of the Convention is likely to be a live issue differently from those where it is not. Provided means are in place which enable those cases where this is a live question to be dealt with appropriately, a system which provides for all other cases where possession is sought to be dealt with simply and summarily will not be objectionable. ”

On the same topic, at paragraph 75 he said this, having referred to cases where the occupier has no security of tenure:

“The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner's right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier.”

Baroness Hale said this at paragraph 188:

“We are also agreed as to the procedural route whereby a challenge to the general law may be made. The Human Rights Act 1998, section 7(1), provides that a person who wishes to rely upon his Convention rights may do so either in a free-standing action or by defending an action brought against him by a public authority. In those very rare cases where a person may be evicted from his home without any court order at all, a challenge would have to raised by way of a free-standing action or judicial review. Otherwise, a defence can be raised in the possession action itself.”

Lord Brown of Eaton-under-Heywood said this at paragraph 198:

“My opinion is rather, and at this stage I state it very broadly, that although article 8 is clearly engaged in every home repossession case, its requirements are satisfied provided only and always, first, that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake and, secondly, that that law is properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it. If either of those two conditions is not satisfied then, I accept, a complaint would properly sound under article 8.”

Lord Brown referred to the Protection from Eviction Act at paragraph 202 as one of the constraints on an owner’s enforcement of his rights, without adding anything of other relevance to the present case. At paragraph 35 Lord Bingham referred to statutory schemes for obtaining possession “without long battles in the county court”. Apart from Baroness Hale’s reference at paragraph 188, quoted above, none of the speeches in either of these cases touches on the possibility of obtaining possession without a court order. None of the cases was concerned in any way with the situation in which that is or may be possible. It would therefore be wrong to attach too much significance to what was said on the point.

The importance of procedural safeguards was also mentioned in the recent decision of the European Court of Human Rights in Connors v. UK, already mentioned, as follows:

“83.

The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, Chapman v. the United Kingdom [GC], no. 27138/95, ECHR 2001-I, § 92).”

That case was not itself concerned with Part 7 of the 1996 Act, although Sheffield City Council v. Smart [2002] EWCA Civ 4 was cited, and relied on by the Government (see paragraph 92), which was a case in which article 8 was considered in relation to accommodation arranged (by way of a tenancy) under Part 7 of the 1996 Act.

Part 7 does provide its own safeguards for occupiers, namely the rights to a review and an appeal under sections 202 and 204. While those courses are pursued the occupier may benefit from the discretion given to the housing authority by section 188(3) and section 204(4) to continue to secure that accommodation is made available. But that will not necessarily ensure continued accommodation, as is shown by Mohamed v. Manek and the present case. Is that, therefore, a sufficient safeguard to allow the legislation to be regarded as compliant with article 8(2) despite the absence of any need to take court proceedings before retaking possession? The review and the appeal procedures have the merit of being aimed at the right target, namely the merits of the housing authority’s decision to cease to make accommodation available, whereas in county court proceedings for possession the issue would be much narrower. On the other hand they provide only limited protection in that they do not give the occupier the right to stay in the home in the meantime. They are a substantive, rather than a procedural, safeguard for the protection of the occupier’s article 8 rights.

The Protection from Eviction Act shows, by section 3A, that there are various circumstances in which Parliament has made an express choice against requiring a prior court order. It is therefore appropriate to proceed on the basis that there are cases in which the protection of the rights of the owner does legitimately outweigh the need for safeguards for the right of respect for the home of the occupier. Examples include that where the occupier is sharing the owner’s home, or where the occupier has taken a holiday letting for a few weeks. In such cases it might be said to be plain why it could be thought that the requirement for a court order should not apply. (In the case of a holiday letting article 8 should not apply anyway, because the accommodation would not be a “home”). Parliament has provided for specific exceptions as regards support for asylum-seekers, and for former trespassers, for particular reasons of policy. Parliament has not legislated about occupiers under interim arrangements made under Part 7 of the 1996 Act although, as Mr Arden showed, it has made special provision for such arrangements in another related area, namely Schedule 1 to the Housing Act 1985 (see paragraphs 40 and 52 above). That provision relates to a tenancy granted under any function under Part 7.

Mr Arden characterised Mohamed v. Manek as a judicially created additional category of excluded licences (and tenancies), resulting in the Act not applying to a licence (or a tenancy) of accommodation arranged under section 188(1) (or section 190). The question is whether that result is justifiable as a way of striking a balance between the right of the occupier under article 8 and the interest in protecting the rights of the owner, giving no more than proportionate protection to the latter.

The decision in Mohamed v. Manek was avowedly based on policy considerations which the court considered compelling. Auld LJ said, in passages which I have already quoted:

“A council’s ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under section 63 for investigation of his application. … It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks drawn from another statute dealing with the private rights and duties of landlords (licensors) and tenants (licensees) as between themselves.”

Nourse LJ expressly agreed with what Auld LJ had said about the context and purpose of section 63(1) of the 1985 Act (now section 188(1) of the 1996 Act). Although Auld LJ was speaking of a factual situation such as obtained in Mohamed v. Manek itself, where the accommodation may not constitute the occupier’s home, Nourse LJ’s reasoning, as noted above, extended generally to any type of accommodation. Thus, by virtue of Nourse LJ’s agreement, the policy statement must be taken as an explanation for the wider ambit of the decision, rather than being limited to the particular facts of the case.

The effect of Mohamed v. Manek is limited (subject to the point mentioned at paragraph 69 above) to licences arranged pursuant to section 188(1) and by analogy section 190(2)(a). It might be argued, with some force, that to exclude from section 3 of the Protection from Eviction Act cases of this kind, where the accommodation is self-contained and may well be occupied for months or even years during the enquiry process under section 184, is odd, to say the least. It might more readily be accepted that the Protection from Eviction Act should not apply to a factual situation such as that involved in Mohamed v. Manek itself. In a case of that kind the accommodation could more appropriately be said not to be “occupied as a dwelling” and not to amount to a “home” for the purposes of article 8. In a case such as the present, on the other hand, the accommodation is a “home” for those purposes, and it would naturally be described as being “occupied as a dwelling”. Despite the additional burden to which the judge held that it would expose local housing authorities in some cases, it could be argued that it would be anomalous to leave a person in the situation of the Appellant open to the risks of eviction otherwise than pursuant to court process, unlike most categories of residential occupiers. The anomaly is the greater because it only applies to an occupier who was a licensee, not to an occupier who had been a tenant.

If the Protection from Eviction Act contained an express provision about accommodation provided under Part 7 of the 1996 Act, in section 3A, it would not be open to the court to override that. At most the court could make a declaration of incompatibility. The court would be likely to be strongly influenced (as it was in Sheffield v. Smart) by the express provision as being the explicit choice, likely to be presumed to be legitimate and proportionate, resulting from the democratic process.

Here, however, the exception arises not from an express statutory provision but from a previous decision of the Court of Appeal, binding as a precedent apart from the fact that the law as regards statutory construction has changed in the meantime because of section 3 of the Human Rights Act 1998. That makes a different construction of the Protection from Eviction Act possible.

Whether section 3 of the Protection from Eviction Act, as construed in Mohamed v. Manek, is compatible with the article 8 rights of those for whom accommodation is provided under section 188(1) (or section 190) depends, therefore, on whether the absence of the procedural safeguard of a requirement on the owner to take proceedings and obtain a court order for possession is proportionate to the aim of protecting the rights of the owner.

Where, as here, the issue of proportionality is raised in relation to the terms of legislation, rather than to a particular action by a public authority, the question has to be addressed in general terms, by reference to the way in which the legislation may operate, rather than on the particular facts. The purpose of the interference will have to be discerned from the terms of the legislation as a whole, in its context, and will therefore not have been articulated in the same way as a particular decision by a public authority. Unusually, in the present case, there is reasoning available, namely that of the Court of Appeal in Mohamed v. Manek for deciding in favour of the construction that they held to be correct.

On one side of the balance which has to be struck, therefore, there are the factors mentioned by Auld LJ in the passage quoted at paragraph 127 above. This is supported by the judge’s conclusions on the evidence, which I have mentioned at paragraph 111 above.

In principle, the occupier is vulnerable to eviction from the end of the period of notice given. If the local housing authority, or other the owner, is anxious to obtain vacant possession in order to be able to house someone else, such as another homeless applicant, the requirement of a court order would add what could, relatively to a 28 day notice period under section 188(1), or a 28 day accommodation period under section 190, be a significant extra period. Time would be needed for the issue and service of the claim form and then further time before the date of the hearing. Assuming that a possession order is made at the first hearing, the date for possession might be postponed for 14 days, or possibly up to 42 days, in accordance with McPhail v. Persons Unknown [1973] Ch 447, as limited by the Housing Act 1980 section 89. Thereafter some further period would be required before an appointment for enforcement could be arranged. That period of delay, and the additional expense which the judge found would be likely to be incurred (see paragraph 111 above), are the factors which, in this context, justify the observations of Auld LJ in the passage cited at paragraph 127 above. It is also relevant that the Housing Act provides specific safeguards, in all cases, of a review and an appeal, coupled with a discretion to continue the provision of accommodation. In itself this suggests a balancing of factors, not requiring the local housing authority to continue accommodation in these cases, as it does at earlier stages in the process, but giving it a choice as to whether this is the appropriate way in which to make available what are always likely to be scarce resources of accommodation.

On the other side of the balance, in favour of insisting on a court order as a procedural safeguard for the occupier’s right to respect for his or her home, there is, first and foremost, the importance of that basic right itself, and the sensitivity of the issue of eviction from a home, especially in relation to a family which may include young children.

The taking of possession by self-help, for example when the occupiers are temporarily absent, is not, by and large, something which is encouraged under English law. Even in relation to business premises it is not uncontroversial (c.f. Billson v. Residential Apartments Ltd [1992] 2 AC 494), let alone where the premises constitute the home of the occupiers so that eviction renders them homeless. The Protection from Eviction Act itself embodies a general policy of English law in this respect, its original mischief having been the abuse of rights of self-help prevalent in the early 1960’s.

There is the additional feature that reasonable force may lawfully be used in the process of eviction, to which I have referred above at paragraph 109. For reasons there mentioned, it is more satisfactory that, if this is necessary, it should be in the context of an eviction by bailiffs pursuant to a court order, after notice, rather than one effected by private agents, possibly without any prior notice of their intention to attend at the premises to retake possession.

As noted above, there may also be cases in which there is a real question as to whether the owner’s right to recover possession has arisen. There might also be a question (it was not argued that this was such a case) where what appears to be a licence is in reality a tenancy of the accommodation, in which case a court order is needed in any case under the Protection from Eviction Act because there would be nothing to take the tenancy out of the protection afforded by section 3(1) of the Act. In either case, Mr Arden submitted, the occupier ought to be able to take the point by way of a defence, rather than having to commence his or her own proceedings as the Appellant did.

He also submitted that there was no legitimate basis, as regards the need for a court order, for distinguishing between a case where the temporary accommodation provided under section 188(1) is made available by way of a licence (if it truly is such) and another case where the grant of a tenancy is used, at any rate once any short initial period is over during which the accommodation may not amount to a separate dwelling. The Protection from Eviction Act does not distinguish between tenancies and licences, in setting out the exceptions in section 3A, except for the case of licences of hostel accommodation under subsection (8). That suggests that, except in that particular type of case, there is no good reason for the Act to apply differently according to whether the occupier had a tenancy or a licence.

It seems to me that these are among the factors which need to be taken into account in striking the balance as to proportionality. Likewise, it is relevant that Parliament has made express provision, first, in the Protection from Eviction Act itself for certain other situations to be excluded from its protection and, secondly, in the Housing Act by way of limiting the security of tenure afforded to those for whom accommodation is provided under Part 7 of the 1996 Act, but not excluding those cases from the scope of the Protection from Eviction Act. It seems odd that a former licensee should be deprived of the protection of the Act without an express provision to that effect, whereas a former tenant lacks security of tenure, under these provisions, but still has the protection of the 1977 Act.

I do not find the balancing of all the various relevant factors mentioned above at all easy. In the end my conclusion is that the Mohamed v. Manek reading of section 3(2B) is not compatible with the occupier’s rights under article 8. In my judgment the fact that accommodation is made available under section 188(1) (or section 190) by way of a licence, rather than by the grant of a tenancy, does not afford an adequate basis for saying that the elimination of the procedural safeguard otherwise available, even where the occupier has no subsisting right of occupation, is proportionate to the aim of protecting the property rights of the owner. I see force in the arguments in favour of the Mohamed v. Manek reading, in particular the fact that the authority is given a discretion as to whether to continue the provision of accommodation pending a review or an appeal. But it does not follow that a court order should be unnecessary if the occupier has to be evicted because the local housing authority decides not to continue the accommodation, in its discretion.

To my mind, the most powerful factor is that, inconvenient as it may be for owners to have to go to court, I can discern no policy reason why owners should be free to act without a court order if the accommodation has been made available under a licence but should not be so free if a tenancy has been granted. To distinguish between the two situations according to whether the accommodation was provided by way of licence or of tenancy seems to me to be anomalous and unjustified. There is no substantive reason for making a distinction on that basis between the two types of case. The arbitrary nature of the distinction seems to me to deprive the policy reasons in favour of the Mohamed v. Manek reading of much of the force which they would otherwise have, in terms of making good the proportionality between the means used, namely eliminating the procedural safeguard of a mandatory court order on the one hand, and the legitimate aim of protecting the interests of owners on the other hand. If it is not necessary to deprive a former tenant occupier of the procedural safeguard, I cannot see why it should be regarded as necessary to remove it in the case of a former licensee occupier.

Accordingly I conclude that a reading of section 3 of the Protection from Eviction Act 1977 which does not allow it to extend to the recovery of possession from someone in the position of the Appellant is not compatible with her Convention rights under article 8. I would therefore hold that, although Mohamed v. Manek is otherwise a binding authority on the point, the effect of section 3 of the Human Rights Act 1998 is that, in order to ensure compatibility with an occupier’s right to respect for his or her home under article 8, from 2 October 2000, where a person is in residential occupation of self-contained accommodation under a licence, the application of section 3 of the Protection from Eviction Act 1977 is not excluded by the fact of the accommodation having been made available in pursuance of a local housing authority’s duties under section 188(1) or section 190(2)(a) of the Housing Act 1996. That situation not being excluded from the 1977 Act by section 3A, it follows that a court order was necessary before the Appellant could be made to leave. In my judgment Mohamed v. Manek should no longer be followed, insofar as its reasoning extends to self-contained accommodation which constitutes the home of the occupier. For that reason, and only for that reason, I would hold that the judge was wrong to refuse the Appellant an injunction restraining Veni from taking steps to evict the Appellant without first obtaining a court order, and I would allow the appeal.

In his judgment (#60 - #67) Lloyd LJ concludes that Mohamed v Manek is authority for the proposition that section 3(2B) of the 1977 Act does not apply to a licence of accommodation secured by a local authority for a homeless person in discharge of its duty under section 188(1) of the 1996 Act. He also concludes (#70 – #85) that the present case is not within any possible exceptions contemplated by the judgments in Mohamed v Manek and that it was not decided per incuriam and is still binding despite subsequent legislative changes and decisions of the House of Lords. I agree with each of these conclusions and that Article 6 is not relevant to the present case (#92 – #99). Like Lloyd LJ I would reserve the question whether Mohamed v Manek extends to former tenants as well as to former licensees.

However I disagree with Lloyd LJ’s conclusion about the effect of Article 8. Put shortly, I think the factors identified by Auld LJ in Mohamed v Manek (see #56) and elaborated by Lloyd LJ (#134) do justify any interference with Article 8 rights which may occur because of the absence of the procedural safeguards afforded by the 1977 Act.

Mohamed v Manek decided that accommodation secured and made available on licence to a homeless person by a local authority pending its decision as to whether it owed him any duty under the homelessness provisions in the 1985 Act was not “occupied as a dwelling under a licence” for the purpose of the 1977 Act. The first question then is whether such accommodation is a “home” for the purposes of Article 8. Should the answer to this question depend upon the nature of the accommodation made available and/or the length of time which the applicant has in fact occupied it whilst the authority is making the inquiries which the 1996 Act requires it to make (section 184)? As in the present case, the accommodation will at first almost always be bed and breakfast with families being moved, if necessary, to more suitable accommodation when it becomes available. The authority’s enquiries may be completed quickly if, for example, it is found that the applicant is not eligible for assistance (section 185) or not in fact homeless (see section 175). Cases of apparent priority need (section 189) and intentional homelessness (section 191) obviously take longer to investigate. At what stage in this process, if at all, can it be said that the accommodation made available becomes a person’s home?

For present purposes I am prepared to accept Lloyd LJ’s conclusion that at least by May 2004 the self contained flat which the appellant and her two children had occupied for the past five months had become her home. But for some time after 18 November 2003, when accommodation was first secured for her, such accommodation could not, it seems to me, properly be called her home.

So in any case of this kind there will be uncertainty as to when, if ever, accommodation secured for a homeless person under section 188(1) (or section 190(2)(a)) has become his or her home. The position is obviously different once the council have decided that the applicant is eligible for assistance, in priority need and not intentionally homeless at which point they have a duty to secure accommodation for him until that duty ceases (section 193).

So on the assumption that the accommodation has become the applicant’s home there can be no doubt that if he or she is evicted this will constitute an interference with the right to respect for that home. Assuming however that the licence has been properly terminated this interference will be in accordance with the law. The question then becomes one of proportionality: whether the possibility of eviction without the procedural safeguards contained in the 1977 Act can be justified.

Like Lloyd LJ I have not found this question easy to answer. I do not underrate the reasons which led to the enactment of the legislation now contained in the 1977 Act (#135 - 137). The present case does not concern council owned property although some of these cases do. But in either event it is likely that any process of eviction will be under the authority’s control and it must be trusted to act lawfully and responsibly. As the present case is one to which section 190(2)(a) applied, after making its decision the authority was required to secure that accommodation remained available for the appellant for such period as it considered would give her a reasonable opportunity of securing alternative accommodation. It is also generally the practice of local authorities to give 28 days notice (#25) as they did in the present case. As the present case also shows, this period of notice should give an applicant sufficient time to assert any private law rights (by injunction if necessary) although in practice such rights are unlikely to exist.

The other safeguards built into the 1996 Act cannot be overlooked either. Firstly there are the provisions for review of any decision made by the authority (section 202 and section 203) and appeal to the county court on any point of law (section 204). The authority may secure that accommodation is made available to the applicant until this process is completed (sections 188(3), 192(3) and section 204(4)). The council also have general duties to provide advice and assistance about homelessness (section 179) and specific duties to do so in cases of intentional homelessness (section 192(2)(b), (3), (4) and (5)) and cases of homelessness but no priority need (section 192(2), (4) and (5)).

So within the Part VII homelessness regime there are safeguards for a licensee which do not exist for an ordinary licensee whose licence has been granted simply under private law without any public law context of the kind with which we are concerned.

And it is the public law context and the duties imposed upon local authorities which persuade me that Article 8 does not require the procedural safeguards of the 1977 Act to be followed in cases of this kind. As the court in Mohamed v Manek said, the section 188 (1) threshold is a low one (“reason to believe… may be homeless” etc.). The obligation is to secure temporary accommodation to meet a transient need. This remains so even though in some cases inquiries take a long time to complete. That may simply be an indication of how hard pressed authorities are to comply with their statutory obligations, but in my experience it is often due to the persistence with which those acting for homeless persons pursue their applications.

But once a decision is made that no duty is owed I do not think the authority should have to take court proceedings to evict any applicant who fails or refuses to vacate the temporary accommodation provided. Even if everything went according to plan from issue of proceedings to court ordered eviction the period of occupation would it seems to me be prolonged by months rather than weeks in most cases. I think one can also anticipate that this process will be further delayed by unmeritorious defences being raised to the claim for possession. Meanwhile the accommodation will not be available for other applicants to whom the authority owe duties which, as the judge said, might very well act to their detriment. Furthermore, in these days of limited resources the cost of taking proceedings (both in terms of actual expense and manpower) is a factor which should not be underestimated.

All in all I think the consequences of Lloyd LJ’s conclusion would be far-reaching and would seriously hamper the ability of local authorities to discharge their duties under the 1996 Act. Subject to the uncertainty to which I have referred (#148) it would apply to all cases in which accommodation was made available under section 188(1) and not just to those cases like the present where the applicant was in priority need but intentionally homeless.

I do not think Qazi or Kay, which have been carefully analysed by Lloyd LJ (#101 - #105 and #114 - #121), really help to resolve the issue we have to decide. They were cases involving tenancies to which the 1977 Act obviously applied. I agree with Lloyd LJ that if an authority grant a tenancy to an applicant in order to fulfil its section 188(1) duty it may be that the 1977 Act will apply, subject to the point which he makes at #68 - #69. But it seems unlikely that the authority will do this. The licence in this case (see #6) is typical of the agreements used by authorities in such cases. There is no question of any tenancy being created. For this reason I do not attach any great significance to the fact (if it be so) that the 1977 Act will apply to a tenancy and not to a licence. If an authority create a tenancy it is giving the applicant greater security of tenure than that enjoyed by a licensee and, it may be, also the added protection of the 1977 Act.

For the reasons I have given I would dismiss this appeal.

I agree with Tuckey LJ and Lloyd LJ that Mohamed v Manek is binding on this court. I agree that it establishes the principle stated by Lloyd LJ in his judgment at paragraphs 60 to 67 and by Tuckey LJ in the first paragraph of his judgment. I too would reserve the question whether the 1977 Act applies to former tenants as well as to former licensees. I agree with Tuckey LJ’s conclusion about the effect of Article 8. I too have found the question a difficult one.

Part 7 of Housing Act 1996 (“the 1996 Act”) is headed “Homelessness” and provides a safety net for the homeless. The extent of the duty it imposes on local housing authorities depends on findings of fact as to whether the person is homeless, whether eligible for assistance, whether he has a priority need and whether he has become homeless intentionally. The duty may be limited to a duty to provide advice and assistance (Section 190(3)); it may extend to a duty to secure that accommodation is available for occupation (Section 193(2)).

Part 6 of the 1996 Act is headed “Allocation of Housing Accommodation” and is concerned with the allocation of social housing. Performance of the Part 7 duty will often lead to an allocation under Part 6.

The provision of accommodation under Part 7 is intended to be temporary, though, in practice, for reasons which include the limited availability of social housing, accommodation may sometimes be occupied under Part 7 for a considerable period of time. However, it is, as Mr Arden QC for the appellant submitted, temporary in nature. It may lead to an allocation, on a long-term basis, under Part 6. Before that occurs, or other accommodation is obtained by the homeless person, the accommodation provided may, as in this case, become the person’s home within the meaning of Article 8 of the European Convention on Human Rights.

A balance has to be struck between the right to respect for a person’s home, provided by Article 8(1), and the performance of the duties legitimately placed on local housing authorities in the interests of the homeless generally, which may come within the scope of Article 8(2). Though further analysis is required, that appears to me to be the central issue. I prefer to express the balance as being between the rights of the occupier and the effective performance of the statutory duties of the authority, rather than to refer, as does Lloyd LJ, to the authority’s rights as owner, though the authority will often be the owner.

The authority’s ability to discharge its duties in the general interest may be significantly impaired if recovery of possession of accommodation provided to perform a temporary duty is delayed by the need to take court proceedings for recovery of possession. Accommodation will remain occupied by a person with respect to whom the Part 7 duty has been performed and will not be available for occupation by a homeless person to whom a Part 7 duty is owed.

The assumption is that, once the authority obtain a hearing before a court, it will obtain an order for possession and, in that sense, a hearing would be a formality. The vulnerability of many persons to whom Part 7 duties are owed by an authority must, however, be kept in mind but the hardship which may follow an eviction is not removed because the eviction is effected under the court order to which the authority would be entitled. Mr Arden understandably stresses, however, that occupiers may have more confidence in an eviction by bailiffs pursuant to a court order than an eviction, possibly by private agents, without one.

The law is entitled to place a degree of trust in local housing authorities in the performance of their housing duties under Part 7 of the 1996 Act. Lloyd LJ contemplates, at paragraph 134 of his judgment, an “appointment for enforcement”. Such an appointment can be contemplated, and expected, when the authority has terminated a licence granted under Part 7 and seeks possession without the need for a court order.

I am not troubled by the distinction between tenancy and licence which has weighed heavily with Lloyd LJ. Of course I accept that section 3(2B) of the Protection from Eviction Act 1977 (“the 1977 Act”) in many situations applies the protection to premises occupied as a dwelling under a licence as it applies (section 3(1)) in relation to premises let as a dwelling under a tenancy. A tenancy is, however, something different from a licence and generally confers greater rights on the tenant occupier. If a licence, such as that under consideration, is excluded from the scope of the 1977 Act, I do not find it unjustifiable that the authority may have to treat a person to whom it has chosen to grant a tenancy in a different way.

Accommodation provided under Part 7 will often, as in Mohamed v Manek, be for short periods, and Lloyd LJ accepts that accommodation provided under Part 7 will sometimes not have the protection conferred by the 1977 Act. Since such accommodation is intended, and rightly intended given the statutory duty, to be temporary, I agree with Tuckey LJ that it is difficult to justify a distinction for present purposes between some Part 7 occupiers and others. The longer periods will arise because of the variations in the scope of the Part 7 duty and the difficulties which particular homeless persons may present. To discriminate for present purposes between Part 7 occupiers would not in my view accord with the statutory intention.

Tuckey LJ (and Lloyd LJ) have described the safeguards which Part 7 occupiers have under the statutory scheme, by way of review and otherwise, and I will not repeat them. I accept that the protection of the court is less readily engaged if it is the occupier, rather than the authority, who has to initiate proceedings. In some circumstances, an injunction may, however, be sought. For example, the authority’s duty under Section 190(2)(a) (Homeless applicants eligible for assistance and with priority need but who have become homeless intentionally) is to “secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation”. Relief from the court could be sought by the applicant on the ground that the period of time required to provide “a reasonable opportunity” has not expired.

The court being bound (subject to Article 8) by Mohamed v Manek, the need for further analysis of the statutory context in which that case was decided does not at this stage arise. However, there are exclusions in Section 3A of the 1977 Act with respect to both tenancies and licences. These include, under sub-section (7A), grants in order to provide accommodation under Part VI of the Immigration and Asylum Act 1999. While it may be anomalous for the statutory scheme to have been amended to cover that situation expressly, and not the present situation, it does demonstrate a statutory intention, for the purpose of protecting the housing stock, to exclude potentially vulnerable people in that context from the protection of the 1977 Act. If Mohamed v Manek does not survive Article 8 scrutiny, it may well be that sub-section (7A) does not survive it either, though obviously the point has not been considered in detail.

That Strasbourg jurisprudence leaves a margin of appreciation to domestic law when ruling upon a regulatory framework in circumstances such as the present was confirmed by the European Court of Human Rights in Connors v UK. Lloyd LJ has cited paragraph 83 of the judgment of the court in paragraph 122 of his judgment.

The relationship between local housing authority powers and duties and Article 8 has been considered in the House of Lords in Harrow LBC v Qazi [2003] UKHL 43 and LeedsCity Council v Price and Kay v Lambeth LBC [2006] UKHL 10. The court has received written submissions on the later case which was decided after the hearing of this appeal. In those cases, the issue was in relation to the duties of the court when an application for possession was made by the authority, and not the question whether possession could be obtained by the authority without a court order. The statutory scheme in Part 7 of the 1996 Act was not under direct consideration. The passages from the speeches cited by Lloyd LJ do not, however, lead me to a conclusion either that the statutory scheme in Part 7 is contrary to Article 8 or that the operation of the scheme in relation to the 1977 Act, as decided in Mohamed v Manek, is contrary to Article 8.

In my judgment, the margin of appreciation conferred in Connors permits both the scheme under Part 7 and its interpretation in relation to the 1977 Act in Mohamed v Manek. The width of that margin, and the test to be applied, was stated by Lord Hope of Craighead in paragraph 70 of Kay v Lambeth LBC, cited by Lloyd LJ in paragraph 118.

At paragraph 77, Lord Hope stated:

“The issues addressed by this legislation involve questions of social and economic policy where the choices that are to be made can easily be seen as falling within the discretionary area of judgment best left to the considered opinion of the legislature. They include decisions as to the circumstances in which protection of tenure is not to be given to those who have no contractual right to occupy as well those in which there is to be security of tenure, and if so, on what terms. Cases falling into this category are typical of those where the Strasbourg court will respect the judgment of the contracting state. They are most unlikely to raise an issue as to whether the right to possession which is afforded by domestic law violates the article 8 Convention right …”

The respect is equally accorded to judgments of the courts of the contracting state construing domestic statutes.

Lord Brown of Eaton-under-Heywood referred, in paragraph 198 of Kay, to the requirement that the substantive domestic law under which the order is sought strikes an acceptable balance between the competing needs and rights at stake. Substituting the word ‘possession’ for the word ‘order’, the balance struck in Mohamed v Manek is in my judgment acceptable in Article 8 terms and we are permitted to be bound by it.

I agree with Tuckey LJ that the appeal should be dismissed.