Rogerson v Wigan MBC

This is an appeal against an order of His Honour Judge McMillan sitting at the Wigan County Court on 18^th December 2003. The judge dismissed a claim brought by the claimant Andrew Rogerson. The clamant alleges that he and his partner, Amy Smith, had been unlawfully evicted from their accommodation at Flat 11 Brecon Close, Wigan. That was the flat which the Council permitted them to occupy. The claimant alleges that he was entitled to receive 4 weeks’ notice to quit followed by an order for possession, if necessary, pursuant to the Protection from Eviction Act 1977, and that he should receive damages for the failure to comply with those provisions. The respondent accepts that these procedures were not complied with but contends that the provisions of the 1977 Act were not applicable and that they acted lawfully throughout.

Before setting out the factual background fully it is helpful to identify the material statutory provisions in issue in this case.

Prohibition from Eviction Act 1977.

“(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 ….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.

(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”.

Section 3A then defines the concepts of excluded tenancies and excluded licences. The potentially material exclusion in this case is found in subsection 8:

The definition of a hostel is found in section 622 of the Housing Act 1985:

Section 188 provides that in certain circumstances the authority is under an obligation to provide accommodation pending a determination whether a duty to house is owed or not:

“(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.

(3)

The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202)…”

Section 193 identifies when the duty to house arises. It provides that, save for certain exceptions not material to this case, the authority must secure accommodation for someone whom they are satisfied is "homeless, eligible for assistance and has a priority need", provided that they are not satisfied that he became homeless intentionally.

On 29^th November 2002, the appellant and his partner Amy Smith were allowed into the occupation of premises at as Brecon Close, Wigan, a homeless persons unit. That accommodation was provided further to the duty of the respondent under section 188 (1) of the Housing Act 1996. This imposes a duty on the council in certain circumstances to provide accommodation pending the council carrying out enquiries to see whether they have a duty to house the applicants.

The premises were not a purpose built hostel but had originally been a block of flats There were seven two bedroom flats, one single bedroom flat, and a ground floor flat was occupied by the warden. Each unit contained, in addition to the bedrooms, a living room, bathroom, toilet and a kitchen equipped with necessary cooking facilities. The judge found that the bedroom doors had individual locks. The occupier was allocated the bedroom and would share the rest of the unit with anyone who happened to be in the other bedroom. The resident warden had access into each and every unit and to each bedroom within any unit.

The appellant was offered one of the units pursuant to a licence agreement. Itwas an express term of the licence that occupiers could be moved from one unit of accommodation to another at the will of the respondent, and they could be required to share their unit with a stranger. In fact the appellant and his partner were not in the event required to share whilst they were in residence, but it is accepted that they could have been at any time. The appellant accepted the accommodation had been offered on this basis and also that he was obliged under the terms of the licence to abide by certain hostel rules. This included imposing a nightly curfew and forbidding any alcohol or drugs on the premises. It was an express term of the licence that it could be terminated on seven days' notice.

On the day following their admission to the premises, the appellant and his partner were told that the authority accepted that the authority had a section 193 duty to house them. The letter sent to them said that they would be offered accommodation "as soon as we have a suitable vacancy." They were not asked to leave their accommodation at Brecon Close. The Council has conceded that they should have been told that the accommodation at Brecon Close was being temporarily made available to them in discharge of the duty to house but that they could ask for a review of the suitability of the accommodation.

There were various allegations that the appellant had failed to comply with the conditions of the licence. Following investigations, the appellant and his partner were served with notice to quit on the 7 February 2003 to expire on the 17 February. When the notice to quit expired, they were evicted without a court order.

It is clear from the structure of section 3 that in order for that section to apply, two conditions need to be satisfied. First, the occupier must show that the premises have been let as a dwelling under a tenancy, or have been occupied as a dwelling under a licence. Second, even where they are so occupied, the section is inapplicable if the licence is an excluded licence as defined by section 3A (8). This, therefore, is a negative condition; the protection afforded by the Act is not conferred if the licence confers rights of accommodation in a hostel provided by certain public bodies.

The respondents contended both before Judge McMillan and before me that neither condition was applicable here. Judge McMillan found in their favour on both aspects of the case. He first considered whether the premises which the appellant occupied were in a hostel within the meaning of section 622 of the Housing Act, and held that they were. In reaching that conclusion he relied heavily upon the decision of the Court of Appeal in Brennan v Lambeth Borough Council 30 H.L.R.481. The facts of that case were in many respects similar to this. The appellant was placed with his son in a room in the Tooting Bec hostel pending a determination of his right to be housed. The hostel consisted of seven houses. Each house had seven or eight bedrooms with a separate kitchen, bathroom and toilet shared by the residents of that house. As here, there was a power to move the lodgers from room to room. The Council concluded that it had no duty to house him because he had become intentionally homeless and accordingly they evicted him from the hostel without complying with the terms of the Protection from Eviction Act. The Council argued that the Act was inapplicable on the grounds that the claimant occupied the premises in a hostel, and the judge agreed. The Court of Appeal (Potter and Brooke L.JJ) refused an application for leave to appeal. They agreed with the judge that the accommodation was provided pursuant to a licence rather than a tenancy, and that the licence conferred the right to occupy a hostel. It was not in the Court's view even arguable that the building was anything other than a hostel. The residential accommodation was not being provided in separate and self contained premises.

Judge McMillan considered that decision to be decisive of this case. He recognised that here there would be strangers in only two bedrooms rather than in seven or eight, as in Brennan, but did not consider that to be a material distinction.

Lest he should be wrong about that, Judge McMillan also addressed the question whether the appellant occupied the premises as a dwelling under a licence. He concluded that he did not. He considered that the case was indistinguishable from another Court of Appeal decision, Mohammed v Manek and the Royal Borough of Chelsea 27 H.L.R.439. In Manek the Council secured for the appellant temporary bread and breakfast accommodation pending a determination by the Council of its housing duty, if any, owed to him. The Council concluded that it owed him no duty to house him and the hotel gave him notice to quit which was less than that laid down in the 1977 Act. He sought relief against the Council.

The Court held that since the Council did not own the premises wherein the appellant had been accommodated, its conduct was not caught by section 3. But the Court also expressed the view, obiter, that temporary accommodation of this kind did not constitute a "dwelling" within the meaning of the 1977 Act in any event. Auld LJ, giving the leading judgment of the Court, said this (p.450):

Henry and Nourse L.JJ agreed, although the latter pointed out that the general rule that accommodation made available for this temporary purpose was not to be considered a "dwelling" under the 1977 Act might be displaced "if the applicant's occupation is allowed to continue on a more than transient basis."(p.451).

Judge McMillan considered that this decision bound him also. He rejected a submission from Mr Stark that Manek ceased to apply immediately the Council had recognised a duty to house the appellant, in the following terms:

The judge held that whatever the Council's intention had been, it had in fact notified the appellant that he would be offered suitable accommodation when it became available. Accordingly, the accommodation remained temporary accommodation. The judge concluded that in those circumstances Manek applied and for this reason also the appellant was not entitled to the protection afforded by the 1977 Act.

The submissions before me were essentially those advanced before the learned judge. I shall consider each of the issues in turn.

I can interfere with the conclusion of the judge only if I am satisfied that it was wrong: see C.P.R 52 rule 11. The relevant question to ask on this appeal, as Mr Stark accepted, is whether there was a proper factual basis on which the judge could reach the conclusion that the appellant was being accommodated in a hostel. To put it another way, were the facts capable of sustaining that decision? If so, I cannot say that the judge was wrong.

Mr Stark submitted that the judge erred in law in concluding, on the largely undisputed facts, that the appellant was occupying premises in a hostel. He suggested, and I accept, that in order for a building to constitute a hostel, three criteria have to be met. First, the accommodation has to be residential; second, it must be otherwise than in a separate and self-contained set of premises; and third, there must be the provision of board or facilities for the preparation of food. He did not dispute that the first and third criteria were satisfied; it plainly was residential accommodation and a kitchen was provided which constituted the facilities for the preparation of food. But he contended that the accommodation was separate and self-contained accommodation and that there was no legitimate basis for finding otherwise.

He accepted that the appellant was occupying the premises under a licence rather than a tenancy. This was because the appellant did not have exclusive possession since he could be moved at will by the Council. It was common ground, however, that he did not have to have any exclusive possession of any particular unit of accommodation within the hostel before the safeguards of the 1977 Act applied. But Mr Stark contended that not only was his own flat separate and self-contained accommodation but that would have been equally true whichever room he had been allocated. He said that a flat was self-contained if all the necessary living requirements were included in the premises occupied by the individuals. That was the position here. He submitted that to be separate it was only necessary that it should be separate in a physical sense, which this accommodation clearly was. It did not have to be separate in the sense of providing a separate dwelling. He argued that had the unit been a single unit of accommodation, in the sense that it consisted of only a single dwelling with no question of sharing with strangers, there could be no doubt about it being separate. The position was not altered, he contended, merely because a third person or persons could lawfully have been given the right to occupy the second bedroom in the flat. That could not change the nature or character of the accommodation itself. Whilst the appellant was in occupation of flat 11 he could lock up his flat and keep out everyone except the warden and any occupant of the other bedroom. He need have no contact with the other members of the hostel at all, or they with him. The building itself had none of the attributes which one would normally identify with a hostel; it remained a self contained and separate unit.

Ms Kilpatrick says that the judge was entitled to find that the building was a hostel. The case of Brennan supported that conclusion. The judge was right to hold that it was immaterial how many rooms had to share the accommodation. It ceased to be separate accommodation once it had to be shared at all.

I agree that the solution to this issue rests upon the proper meaning to be given to the concept of "a separate and self-contained set of premises”. I do not think that it can simply mean physically separate and self-contained, for two reasons. First, if residential accommodation is provided in self contained premises then they must perforce be physically separated from the rest of the block of accommodation. So the concept of "separate" must be directed to some other aspect. Second, the notion of separate accommodation more naturally, in my view, is referring to accommodation which is separate for each person (with or without a partner). It is not appropriate to describe someone as being in separate accommodation if they are being compelled to share some of the facilities with someone they have not chosen. The separate bedroom does not amount to separate residential accommodation. In this case nobody was in fact required to share the accommodation whilst the appellant was there, but Mr Stark, in my opinion rightly, accepted that this was irrelevant. The potential to require sharing was no different to actual sharing.

In my opinion this conclusion is supported by the recent decision of the House of Lords in Uratemp Ventures Ltd v Collins [2001] UKHL 43 (2001) 33 H.L.R. 85. In that case the issue was whether a dwelling house was "let as a separate dwelling" so as to be capable of constituting an assured tenancy. It was argued that accommodation could not be a dwelling if it did not provide cooking facilities. Their Lordships reversed the decision of the Court of Appeal and held that it could. The accommodation constituted a separate dwelling if there was no sharing with another of "living accommodation.", even if facilities were shared. I recognise that the concept there was a different one, but in my view the notion of what is meant by "separate, namely that there should be no sharing," is equally applicable here, although it applies to the "set of premises" rather than a "dwelling."

The authority of Brennan also supports this conclusion. I agree with Judge McMillan that it is not possible to distinguish Brennan. (I recognise that it was only an application for leave case and should not be treated with too great a deference. Even so, the Court was very clear that the case was not even arguable.) On the appellant's case it is difficult to see why each Victorian house could not be seen as separate and self contained, in the sense that it was physically distinct from the other houses which together made up the hostel and it provided all necessary living requirements. There is of course plainly a difference of degree, in that here there is much more limited sharing than there was in Brennan; but in my judgment that does not affect the principle that any enforced sharing will preclude the accommodation being described as "separate".

This construction also seems to me to reflect the policy behind the 1977 Act. I infer that the purpose behind the exclusion of those occupying accommodation in hostels, which is limited to certain public bodies providing hostel accommodation, is to preserve a certain flexibility to act in the public interest. For example, it may sometimes be necessary to remove those who will not comply with the hostel's rules, and it could be damaging to the interests of the other residents, some of whom will have to live cheek by jowl with the recalcitrant resident, if this is a prolonged process. Alternatively, there may be circumstances where it is necessary to remove someone in order to replace them with someone else whose need is perceived to be greater. The public interest would not necessarily be well served by conferring the usual safeguards of the 1977 Act to the residents of these premises.

For these various reasons therefore, I would reject this ground of appeal. It follows that the appeal must fail. However, I shall also consider the alternative argument which was advanced before me.

If the appellant had only been given a licence to remain pending the decision about his right to be housed, then it would be clear that the accommodation provided for him for this brief, temporary period would not constitute his dwelling. That is the ratio of the Manek case. Mr Stark submitted that Manek was no longer good law being inconsistent with later House of Lords' authorities. He referred me to a decision of the House of Lords, Uratemp Ventures Ltd v Collins, to which I have already referred, in which their Lordships emphasised that a "dwelling" simply meant a person's home and was not a term of art. He also relied upon another House of Lords decision, Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57; [2002]1 AC 547, in which their Lordships held that someone in interim accommodation pending a determination of their housing status was properly described as normally resident in the area where the interim accommodation was provided. In my judgment neither of these cases impliedly overrules Manek. They were each concerned with quite different issues that did not even touch upon the considerations which caused the Court of Appeal in Manek to adopt the analysis it did, and Manek was not cited in either case. I therefore reject the argument that Manek is not binding upon me.

That still leaves the question whether Judge McMillan was right to say that the effect of Manek was that the accommodation provided to the appellant was not a dwelling. The appellant submitted that even if the accommodation was not originally properly described as a dwelling, since he was only allowed to be there pending the determination of his housing rights, the position altered as soon as the Council determined that they had a duty to house him pursuant to section 193 of the 1996 Act. Thereafter, he submits, the Council is no longer housing him for this limited purpose and the principle of Manek is no longer applicable.

I do not accept that the position is quite as stark as that. As Judge McMillan said, that would compel the authority either to remove him immediately it had made its determination or risk a claim that as a result of any delay in transferring him to more permanent accommodation, he had obtained rights under the 1977 Act. However, in my view if the Council 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 the decision as to whether there is a duty to house him, then Manek is no longer applicable. The fact that it was originally intended that he should only be temporarily accommodated would not determine the nature of his residence. That may change over time depending on how relations between the licensor and licensee develop. In my view the question whether the accommodation is properly to be described as the licensee's dwelling has to be judged as at the time when the notice to quit is given. That is consistent with the approach adopted in similar circumstances when the court has to determine whether premises constitute a dwelling; see the observations of Lord Bingham in the UratempVentures case, at p.975, following the earlier decision of the House of Lords in Baker v Turner [1950] A.C.401.

It follows that in my judgment the judge was wrong to focus on the original purpose for which the accommodation had been provided. Had he considered the nature of the residence at the time the notice was given, then in my view he would have had to conclude on the facts of this case that the accommodation had by then become the appellant's dwelling. It was plainly the Council's intention that he and his partner should occupy it on more than a merely transient basis, even although the letter actually sent to the appellant misrepresented the position. More significantly, whatever the original intention, it can not in my view be said that the provision of the accommodation was so transient as to prevent it from being described as the appellant's dwelling, nor do the policy considerations which influenced the court in Manek warrant such a conclusion. This case provides an example of the situation referred to by Nourse LJ in Manek where the occupant is permitted to occupy the premises on a basis which can no longer justify the conclusion that it is for a brief transient period.

Accordingly, I would uphold this ground of the appeal. However, given that I have found that the judge was right, and in any event entitled, to conclude that the accommodation was provided in a hostel, it follows that the appeal fails.