Reported Case
Ibrahim v London Borough of Haringey (1) and Capital Homes Services Ltd (2) [2021] EWHC 731 (QB) (31 March 2021)
Date: 31/03/2021![Duncan Lewis, Reported Case Solicitors, Ibrahim v London Borough of Haringey (1) and Capital Homes Services Ltd (2) [2021] EWHC 731 (QB)](/ArticlesImages/DLStandardNewsImage.JPG)
The High Court has allowed an appeal in favour of a former rough sleeper in a case concerning the security of tenure of those accommodated under the government initiative to accommodate rough sleepers during the covid-19 pandemic.
Mr Ibrahim, who has NRPF, approached the D1 local authority for accommodation having been rough sleeping in May 2020. He was accommodated in a self-contained flat which was managed by the D2. He signed an agreement with D1 which confirmed that he was entitled to be given 48 hours’ notice to vacate. Two days later he was informed by representative of both D1 and D2 that he must move to a hotel that day, without notice, and representatives of D1 and D2 attended the accommodation in attempts to persuade him to do so.
An application for an urgent injunction to prevent the eviction together with a claim for damages for unlawful eviction and harassment was lodged at the County Court.
The legal basis of the claim was that s79-81 of the Housing Act 1985 were satisfied and none of the exclusions set out in schedule 2 of the Act applied. Accordingly a secure licence had arisen which could not be terminated without the appropriate notice being served and the Court being persuaded that a statutory ground for possession was established and it was reasonable to grant a possession order. It was also argued that the attempted eviction was in breach of the licence agreement and common law notice requirements.
An ex-parte injunction was granted pending a return hearing. By the time of the return hearing written notice had been provided and the period had expired. At the return hearing the injunction was discharged on the basis that the D1 had offered alternative temporary accommodation and thus the balance of convenience lay in favour of not continuing with the injunction. HHJ Saunders also made a finding of fact that there was no legal relations between the parties. It was common ground between the parties that such a finding effectively disposed of the entire claim such that the only option available to the Appellant was to appeal.
That finding of fact was appealed on 3 grounds:
- The judge exceeded his powers by making a finding in relation to a disputed fact and matter of complex law at an interim hearing without hearing detailed argument and supporting evidence;
- There was no or insufficient evidence to support the finding; and
- On the evidence available, the finding was perverse.
The appeal was allowed. The Honourable Mr Justice Jane found inter alia that:
At paragraph 19, the judge, having found the first defendant’s actions to be “a clear mistake or accident”, held that what transpired was not “intended to create a landlord and tenant relationship, or that of a licensor/licensee”. Before me, it was common ground that the claimant must, at least, have become a licensee of the property. Otherwise, he would have been a trespasser. Accordingly, the judge should have paused to examine the implications of the claimant’s status as a licensee.
For these reasons, I conclude that the judge was wrong to find, on the evidence before him, that the claim fell to be substantively dismissed because it was not properly arguable that the claimant and the first defendant had an intention to create a legal relationship, when they signed the agreement in May 2020.
Beginning at paragraph 21, however, the judge went on to consider whether, if he was wrong about the intention to create legal relations, the claimant was a secure tenant or licensee. But once one assumes an intention to create legal relations, the case law demonstrates that it is relatively easy for a local authority to find it has granted a tenancy to an individual, notwithstanding any mistake on its part.
The judge also considered the relevance of the definition of dwelling as expounded in R (N) v Lewisham London Borough Council [2014] UKSC 62 and found that:
Whilst, at first sight, it might be said that the Supreme Court’s majority judgment in R (N) supports the first defendant, both as regards the meaning of “dwelling” in the Protection from Eviction Act 1977 and, for the purposes of determining whether any tenancy was a secure one, within the meaning of sections 79 et seq of the 1985 Act, the position before HHJ Saunders was not so clear as to have permitted him to dismiss the substantive claim on this basis. There was in particular the following issue. At paragraph 45 of his judgment, Lord Hodge said:-
“45. Pulling together the threads of the case law, in my view the following can be stated: (i) the words "live at", "reside" and "dwell" are ordinary words of the English language and do not have technical meanings, (ii) those words must be interpreted in the statutes in which they appear having regard to the purpose of those enactments, (iii) as a matter of nuance, "dwelling" as a general rule suggests a more settled occupation than "residence" and can be equated with one's home, although "residence" itself can in certain contexts (such as the two-home cases) require such an equation, and (iv) under the 1996 Act a person remains homeless while he or she occupies temporary accommodation provided under sections 188(3), 190(2), 200(1) or 204(4) of the 1996 Act so long as the occupation is properly referable to the authority's performance or exercise of those statutory duties or powers. In my view it is consistent with this approach to conclude in the context of PEA 1977 that an overnight or day-to-day licence of accommodation pending the making of a decision under section 184 or on review or appeal does not show any intention to allow the homeless applicant to make his or her home in that accommodation.”
I find the claimant ought to have been afforded the opportunity of arguing, at trial, that the circumstances of his agreement with the first defendant materially differed from the accepted purpose in R (N) of providing “overnight or day to day licence of accommodation pending the making of a decision under section 184 or on review or appeal”. On one view, any reliance on R (N) could be said to be redundant since in our case the power under which the accommodation was provided is itself at issue; and, if the claimant is right, then, notwithstanding what the first defendant might have intended, the claimant (a) took possession of premises that are plainly capable of being a “dwelling”; and (b) albeit fortuitously, did so in a way that made his tenancy secure and subject to the protection of the 1977 Act. But, even if one adopts the more limited position that the claimant was merely permitted to live in the premises during the currency of the pandemic, that still arguably put him in a different position from the appellants in R (N), whose terms of occupation would necessarily be short ones.
For these reasons, I find that the judge was wrong to find, in the alternative, that there was no properly arguable case to go to trial.
The substantive claim and the basis of the Claimant’s occupation are now likely to be determined at trial in the County Court.
The Appellant is represented by housing solicitor Adrian Smith. Instructed counsel are Matthew Lee of Lamb Building Chambers and Justin Bates of Landmark Chambers.