Temporary Accommodation

April 26th, 2019 by James Goudie KC

Mohammed v Barnet LBC (2019) EWHC1012 (QB) was an appeal against a decision by HHJ Luba QC at the Central London County Court, following the trial of a preliminary issue in relation to proceedings for possession of residential premises sought by the London Borough of Barnet (“the Council”). By his decision the Judge concluded that the agreement for occupation between the Appellant, Ms Mohamed, and the Council is not an agreement that attracts the security of tenure provisions of the Housing Act 1985 (“the Act”). The appeal raised the issue of whether the occupation of accommodation by Ms Mohamed has secure status for the purposes of Part IV of the Act or whether, as the Council contends, it is a simple non-protected arrangement. This turns on the construction of paragraph 6(b) of Schedule 1 to the Act.  In particular; does paragraph 6(b) require a single provision providing for vacant possession on expiry of a specified period or when required? Or, is it sufficient, in the present case, to simply provide for possession “when required”? Thornton J dismissed the appeal.

Section 79 of the Act relates to secure tenancies.  Pursuant to Section 79(3), the provisions of Part IV of the Act apply in relation to a licence to occupy a dwelling-house as they apply in relation to a tenancy. Schedule 1 to the Act sets out in 12 paragraphs a list of circumstances in which tenancies are not secure tenancies.  Paragraph 6 is titled “Short-term arrangements.” Lettings made under paragraph 6 have been referred to as “private sector leasing schemes” and have been used by some local authorities to provide accommodation for the homeless.

Paragraph 6(b) has been considered by the Court of Appeal in London Borough of Tower Hamlets v Abdi (1993) 25 HLR 80 (“Abdi”) and Haringey LBC v Hickey [2006] EWCA Civ 373 (“Hickey”).

Thornton J said:-

“36. This Court is not required to determine the legal meaning of paragraph 6b) in the abstract, but only as applied to the relevant facts of the present case. The legal meaning is that which conveys the intention of Parliament in enacting the provision. The text should be considered in context, which, at its broadest extends to the Act as a whole as well as the legal, social and historical context. … The doctrine of precedent requires this Court to follow the ratio decidendi (the reason for deciding) of decisions of the Court of Appeal. It is generally accepted that the ratio decidendi alone is binding as a precedent, although statements by judges in the course of giving reasons for their decisions which do not form part of the ratio (obiter dicta) may be strongly persuasive, particularly when they are the carefully considered observations of eminent judges.The two judgments of the Court of Appeal must be read in the light of the facts of each case and in light of each other ….”

“39. It seems to me that both constructions of paragraph 6b), urged upon me … are grammatically possible. Sir Martin Nourse appears to have inclined to the same view in Hickey: …

“40. Much of the debate before me centred on how this Court should approach the two Court of Appeal authorities of Abdi and Hickey and whether they were inconsistent or not. The case of Abdi concerned an indeterminate licence arrangement between the Council and the private landlord. It allowed the private landlord to determine the licence “on not less than 7 days’ notice in writing“. Mann LJ considered that it was “plainly arguable” that the requirement satisfied the stipulation in para 6b) for possession on “expiry of a specified period” and “unanswerable” that it enabled possession “when required”. Accordingly, there was no secure licence.

41. The case of Hickey concerned a letting arrangement between a private landlord and a housing authority for a series of fixed terms. The private landlord was entitled to vacant possession at the end of the term, but not sooner. Sir Martin Nourse arrived at the view that paragraph 6b) was not satisfied and the tenancy was secure because the wording of the paragraph was “more suggestive of a single provision for obtaining vacant possession in either event than of two alternatives provisions”. Sir Martin Nourse considered Abdi concerned different facts and provided no assistance, but gave no reasons for his view.”

“43. At first sight, Hickey and Abdi do appear to be inconsistent. The former requires a single provision providing for both types of possession (on expiry of a specified period or when required). The latter indicates that alternative requirements will suffice.

44. However, the judgments must be read in light of their facts, as Sir Martin Nourse recognised in Hickey. He said of Abdi that “the facts were different” and Mann LJ’s analysis of paragraph 6b) was not of assistance. Whilst Sir Martin Nourse did not give reasons for his view there are, it seems to me, two material differences between the cases.

45. The first concerns the requirement for possession “when required”.”

“48. … the purpose of paragraph 6b) is to ensure that landlords can get back their property whenever they want. In Hickey however, Mr Patel could not take back his property whenever he wanted. He had to wait until the end of the fixed term. In Abdi, the licence arrangement between the Council and the private landlord allowed the private landlord to determine the licence “on not less than 7 days’ notice in writing“. Mann LJ considered it “unanswerable” that the clause enabled possession “when required”. Accordingly, there was no secure licence.

49. The other difference between the two authorities relates to the arrangements in the head lease (i.e. the arrangements between the housing provider and the private sector landlord).

50. The head lease in Hickey was a fixed term arrangement. The head lease in Abdi was an indeterminate arrangement. …

51. As HHJ Luba found at [34] of his judgment, Abdi is authority for the proposition that a provision which enables the licensor to terminate by giving 7 days’ notice is a provision for termination when required by the lessor. The question also arises as to whether the case is authority for the proposition that provision for termination of an indeterminate arrangement “when required” is sufficient to satisfy paragraph 6b).

52. Mann LJ’s analysis was brief and did not expressly address the question whether both requirements of the paragraph are necessary or whether they can be treated as alternative requirements. He considered it was “plainly arguable” that a provision for possession on 7 days’ notice constituted “possession on expiry of a specified period” as well as it being ‘unanswerable’ that it constituted possession when required. On this basis the one provision could be said to satisfy both requirements of the paragraph. However Mann LJ did not consider it necessary to decide the “plainly arguable” point about the specified period. Given this, it seems to me that his decision assumes that a requirement for possession “when required” under an indeterminate arrangement to occupy is sufficient to satisfy paragraph 6b).

53. This was the analysis reached by HHJ Luba in his judgment: …

54. There is, it seems to me, a logic in the distinction between a fixed term and indeterminate arrangement. I agree with the analysis of HHJ Luba that a proper reading of Sch 1 para 6b) suggests that reference to “a specified period” is a reference to the specified period of the provision of the accommodation by the provider to the local authority. In other words, it is referable to the normal case of a fixed term or determinate arrangement. …”

“58. … I do not accept Mr Lee’s submission that the two authorities are inconsistent. In the words of HHJ Luba they are “precisely reconcilable”, particularly when considered in the context of the policy aim of enabling private landlords to obtain vacant possession before the expiration of their leases/licences and when required by them.

59. Applying my analysis to the present case: The licence arrangement between Rent Connect and the Council was for an initial fixed term of 12 months followed by a periodic (monthly) occupation. It was a periodic arrangement by the time Ms Mohamed took occupation in April 2017. Ms Hodgson submitted that the facts are analogous with the case of Abdi. Mr Lee disputed this saying the arrangement is a hybrid fixed term/periodic one. I accept Ms Hodgson’s submission that the facts are akin to the indeterminate arrangement in Abdi.

60. … The requirements of paragraph 6b) of Schedule 1 to the Housing Act 1985 are satisfied by the provision for vacant possession on “not less than 14 days’ notice” – i.e. when required. Accordingly, Ms Mohamed does not have security of tenure.”


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