Zenith Housing Current Awareness

​Interim or Temporary Accommodation – is it a dwelling? Dacorum BC v Bucknall [2017] EWHC 2094 (QB)

29 September 2017

Tom Tyson

In the hinterland of housing law there exists a peculiar form of unprotected occupation, that of homeless persons accommodation on an interim basis pending enquiries into their status and what duty may be owed to them. Despite occupying premises under a licence, premises which are commonly, but not exclusively, ‘dwellings’ they do not occupy premises ‘as a dwelling’. They are subject to removal without notice to quit or court order under the Protection from Eviction Act 1977.

This has been the case since Mohammed v Manek 27 HLR 439. There the policy imperatives were first identified – that the purposes of the licence was for interim transient accommodation pending a decision and that the purpose was to allow authorities to regain possession swiftly so as to allocate resources to those most in need.

Whilst the statutory regime has changed since then, the Local Authority have a duty to provide interim accommodation pending the outcome of their enquiries (s. 188(1) Housing Act 1996). That duty ceases when the Local Authority notifies of the decision 188(3). If the applicant is found to be in priority need and unintentionally homeless the Local Authority shall secure that accommodation is available for occupation (s. 193(2) the ‘full duty’).

Challenges to that principle have come and gone: Desnousse v LB Newham [2006] EWCA Civ 547 rejected an argument that this situation was incompatible with Article 8 ECHR. In R (N) v Lewisham LBC [2015] AC 1259 maintained the previous orthodoxy by a majority, Lord Hodge holding that such interim accommodation was short term, for a determinate period and not to provide a ‘home’ but a roof over the applicant’s head; transfer to other accommodation may be required at short notice and requiring a notice to quit and court proceedings would inhibit the authority’s ability to house those recognised as homeless.

The High Court has now had cause to revisit this issue again in Dacorum BC v Bucknall [2017] EWHC 2094 (QB). The only reason for that was that despite having actually served a notice to quit, the notice was incorrect.

The facts in brief were that the Appellant (“A”) applied as homeless and was granted a temporary non-secure licence under s. 188 Housing Act 1996. Some 7 months later, the Council accepted a full housing duty. In the letter explaining this A was told that she would receive an offer of suitable accommodation but for the time being, she could remain in the temporary accommodation. Accommodation was offered but refused 4 months later. The Council notified A that the full housing duty had come to an end, served notice to quit and took proceedings in court.

Popplewell J held, in essence, that once the full housing duty was determined as being owed and that, together with continued potentially indefinite occupation of the temporary interim accommodation, meant that (a) the licence as originally granted was not longer granted for its stated purpose (i.e. under s. 188) and (b) the Council were thereafter performing its full housing duty by allowing A to remain in the suitable albeit temporary accommodation (paras 28; 31). Once the full duty was accepted, continued accommodation was not referable to s. 188 and the occupation had sufficient degree of settled residence to be occupied as a dwelling. If so, the provisions of the PEA applied. The continuing occupation was not referable to the Council giving reasonable time to move on from s. 188 accommodation[1].

It doubtless did not assist the Council in the appeal that the policy imperative of requiring swift possession without a notice to quit was somewhat hampered by the fact that they served a notice to quit.

If the analysis seems familiar, it is perhaps because it is entirely consistent with Elias J’s in Rogerson v Wigan MBC [2005] 2 All ER 1000. Whilst decided on other points, that decision (at paras 33-34) makes clear that the nature of the residence under licence may change over time, must be judged at the time the notice to quit is given and with regard to whether the basis of occupation is more than for a brief transient period.

The basic lessons to be taken from this reiteration of the law are, it is suggested, as follows:

  • If you are going to serve a notice to quit, make sure it is in the correct form; 
  • If the s. 188 accommodation is being determined after non-acceptance of a homeless duty, then subject to allowing a brief reasonable period to vacate, notice to quit and court proceedings will not be required. 
  • If the s. 188 accommodation continues to be occupied after acceptance of a full housing duty, even on a temporary basis pending a further offer, the likelihood is that the nature of the occupation has changed, and the premises will be occupied as a dwelling under a licence. 
  • If in doubt, serve a valid notice to quit and regain possession by court proceedings.

Tom Tyson

[1] As in R v Newham LBC ex parte Ojuri (No 5) 31 HLR 631

Current Awareness

By the Housing team