Dwelling on the benefits of bad law

Andrew Arden QC comments on the recent Supreme Court decision in R (ZH & CN) v Newham LBC and Lewisham LBC



Homeless persons advisers are rightly aghast at the Supreme Court decision in R (o/a ZH & CN) v. Newham LBC & Lewisham LBC [2014] UKSC 62, upholding the Court of Appeal in that case and the earlier cases of Mohamed v Manek and Kensington and Chelsea LBC (1995) 27 H.L.R. 439, CA, Desnousse v Newham London Borough Council [2006] EWCA Civ 547; [2006] QB 831; [2006] H.L.R. 38: I appeared for the appellants and I certainly am! The delay in commenting on it reflects the need for my blood temperature to reduce from boiling point to a mere simmer!



The decision is on any take a considerable stretch: in order to uphold the proposition that landlords (their agents and employees) can evict people housed under the temporary duties in Part 7, Housing Act 1996, without the court order otherwise required by s.3, Protection From Eviction Act 1977 (something that in practice authorities and other social landlords never actually do themselves – mostly because officers will not be willing to run the risk of committing a criminal offence, whether under s.1, 1977 Act or otherwise but also because of the risk of adverse publicity), the majority held that the purpose of an arrangement (the agreed test under s.3, 1977 Act) was not for the property to be used as a dwelling, even if it was intended to be used as a residence, although

(a) cases such as Uratemp Ventures Ltd. v. Collins [2001] UKHL 43; [2002] 1 AC 301; (2001) 33 H.L.R. 35 mandated that a broad approach be taken to the meaning of dwelling,

(b) it had been held in Mohamed v. Hammersmith and Fulham LBC [2001] UKHL 57; [2002] 1 AC 547; [2002] H.L.R. 7, that a person in temporary accommodation resides in the area where it is located,

(c) Housing Acts 1980 and 1985 had specifically excluded such accommodation arrangements from secure status for a year from the decision (see 1985, Sch.1, para.4, as enacted), as had s.1, Housing Act 1988 from assured status, as s.209, Housing Act 1996, continues to do, which meant that Parliament must assumed that they would otherwise be “let as a separate dwelling” (the key definitional criterion under all these Acts) which has to include let as a dwelling,

(d) s.3A, 1977 Act specifies what tenancies and licences are excluded from s.3, including analogous accommodation such as holiday lettings, accommodation for immigrants and asylum seekers, displaced persons and hostels run by local authorities or other social landlords, but not including Part 7 accommodation, and

(e) use of the accommodation was nonetheless as a dwelling for the purposes of the housing benefit legislation (s.130, Social Security Contributions and Benefits Act 1992).


If any one point emphasises to what extent the majority was prepared to go it is this last: it was essential to uphold qualification for housing benefit, absent which these schemes would not have been viable at all. Accordingly, it concluded that the accommodation was not for the purpose of use as a dwelling (under the 1977 Act), but was actually used as a dwelling (under the 1992 Act), even though, as Lady Hale (in the minority) pointed out:

“it is difficult to see a distinction between the two: [they] used these premises for the purpose for which they were licensed to occupy them” (at [156]).

“Many (indeed one suspects the great majority) of those provided with temporary accommodation under Part 7 of the 1996 Act are in receipt of housing benefit. The whole system of funding local authorities’ duties under the 1996 Act would fall apart if housing benefit were not available to those who cannot afford to pay for the (often expensive) temporary accommodation arranged for them. Section 130 of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if he is ‘liable to make payments in respect of a dwelling…which he occupies as his home’. If the temporary and transient nature of his occupation is not sufficient to prevent the dwelling being his home for this purpose, I find it very difficult indeed to see how that same temporary and transient nature is sufficient to prevent the licence under which he is permitted to occupy the dwelling also being for the purpose of his occupying it as his home, that is, dwelling or residing or living rather than merely staying there” (at [162]).




The decision was hugely policy led. As well as Lady Hale, the Deputy President, the minority comprised Lord Neuberger, the President, who observed that the provisions:

“do not represent a substantial incursion into the property rights of the owners of premises, and they reflect a policy that people who have been lawfully living in premises should not be summarily evicted or locked out. Because of the nature of the rights accorded by these provisions and their aim of protecting people against the inconvenience and humiliation of being deprived of their homes summarily, one would expect the two sections to have a wide, rather than a narrow, meaning, a conclusion supported by the passages which I have referred to in the opinions in Uratemp” (at [135]).


He concluded,

“I accept that, when considering the proper interpretation of a statute, a court can, and where appropriate should, take into account policy considerations, and I sympathise with the view that policy considerations favour dismissing these appeals… However, judges have to be very careful before adopting an interpretation of a statute based on policy considerations, and should only to do so where those considerations point clearly in one direction. In this case, it seems to me to be particularly difficult to justify dismissing the appeal on policy grounds, given that (i) it involves departing from the natural meaning of the relevant statutory words, (ii) the policy argument is not overwhelming, (iii) there are policy considerations pointing the other way, and (iv) Parliament has apparently considered the policy – in section 3A” (at [153]).


Lady Hale rejected the authorities’ argument based on earlier case-law.

“Counsel… have put in considerable work in order to persuade us that the words must be read in the light of the construction given to similar (but not identical) wording in other provisions in the Rent Acts. For the reasons given by Lord Neuberger, which I need not repeat, I do not find any of that work persuasive, let alone convincing. I share his view that ‘dwelling’ is at least as wide as ‘residing’.” ([158]).

“The answer to the practical problems is a properly tailored legislative exception, as has already been provided for some other situations in section 3A of the 1977 Act” (at [165]).


Silver Linings

The irony is that the decision will probably cost authorities more – possibly much more – than they will save. As well as contending that the arrangements fell within s.3, 1977 Act, there was a subordinate argument, that – under Art.8 – any eviction from a home by a public authority must be by way of court order, relying not so much on the recent case-law (though that too) as on the origins of the Convention itself: would Strasbourg really uphold the notion that public authorities could simply come along with no judicial oversight and throw people into the street?


While rejecting this argument, the majority nonetheless concluded:

“…the decisions of this court in 2011, in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 A.C. 104; [2011] H.L.R. 7 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 A.C. 186; [2011] H.L.R. 23 extended the powers of the county court when hearing applications by a local authority to recover possession of a property in order to comply with article 8 of ECHR. It appears to me that it is necessary for the same reason to interpret section 204 of the 1996 Act as empowering that court to assess the issue of proportionality of a proposed eviction following an adverse section 184 decision (if the issue is raised) and resolve any relevant dispute of fact in a section 204 appeal. As there is no other domestic provision involving the court in the repossession of the accommodation after an adverse decision, the section 204 appeal, which reviews the authority’s decision on eligibility for assistance, is the obvious place for the occupier of the temporary accommodation to raise the issue of the proportionality of the withdrawal of the accommodation. …” (at [71]).


This was not what the authorities (or Secretary of State) – let alone the appellants – has submitted, so there was no argument about it, nor citation of previous cases such as Ali v. Birmingham CC [2010] UKSC 8; [2010] 2 A.C. 39; [2010] H.L.R. 22 and Bubb v. Wandsworth LBC [2011] EWCA Civ 1285; [2012] H.L.R. 13 as to the limits of a s.204 appeal.


The implications of this are considerable. While the s.204 appeal is limited in its scope, if the occupier wants to challenge the proportionality of the eviction (even on the basis, e.g. that the conduct which led to an intentionality decision did not happen, or that the facts germane to a finding that s/he is not vulnerable, or that an offer was unreasonably refused), the court will have to conduct a fact-finding exercise which means longer hearings, adjournments for public funding and much greater cost.



The decision means that private landlords, their agents and employees, can peremptorily evict some of the most vulnerable members of society from their homes, even if only temporary homes (but temporary here may well have meant months); the practice has not hitherto been widespread, but is bound to become so; it is arrived at by an analysis of case-law, wholly undermined by the dissenting judgment of Lord Neuberger (who is, after all, the most authoritative spokesperson on landlord-tenant, having been one of its leading practitioners throughout his career); the absurdity of holding that the accommodation was not intended to be occupied as a dwelling for one purpose while actually being occupied (as intended) for another is the sort of distinction that brings the law into disrepute; and, its root in a free-standing approach to policy rather than the legislation itself is a dangerous precedent.


It is also, and perhaps above all, a mean decision: let’s save a few more pounds at who knows (or cares) what cost of indignity and suffering to what may be the most vulnerable members of society of all – those whom the authorities refuse to assist into the basic amenity of a place to live.

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