R v London Borough of Croyden ex parte Jarvis [1994] 26 H.L.R. 194

Mr. A. Collins, Q.C.

 

Introduction

By section 62 of the Housing Act 1985 (Encyclopedia, para. 1–0142), where a local housing authority have reason to believe that an applicant for accommodation may be homeless or threatened with homelessness, they must make inquiries to satisfy themselves whether the applicant is homeless or threatened with homelessness, whether he is priority need and whether he is intentionally homeless.

Section 58 of the Act (Encyclopedia, para. 1–0117) defines homelessness for the purposes of Part III. By section 58(2)(a), a person may be treated as having accommodation if he occupies premises as a residence “… by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.” However, by section 58(2A) and (2B):
“(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy;
(2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation …”

By section 58(4):
“A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”

In paragraph 5.10 of the Code of Guidance issued under section 71 of the Act (Encyclopedia, para. 4–2457), the following guidance is given:
“Someone is defined as ‘threatened with homelessness’ if he or she is likely to become homeless within 28 days. Authorities should, however, be ready to advise and assist people where the possibility of their becoming homeless is known to the authority more than 28 days in advance … Authorities will wish to avoid adding to the stress of uncertainty to existing stresses and should therefore keep the applicant up to date with the arrangements that will be made to assist them.”

Paragraph 10.12 recommends that:
“Local authorities should not require tenants to fight a possession action where the landlord has a certain prospect of success, such as an action for recovery of property let on an assured shorthold tenant, on the ground that the fixed term of the tenancy has ended. Authorities need only be satisfied that proper notice had been served with the intention to proceed …”

Under section 60 of the 1985 Act (Encyclopedia, para. 1–0127), in deciding whether an applicant is intentionally homeless, an authority must also consider whether it would have been reasonable for the applicant to continue to occupy the premises which he has lost. In both R. v. Portsmouth City Council, ex p. Knight (1983) 10 H.L.R. 115, *195 and R. v. Surrey Heath Borough Council, ex p. Li (1984) 15 H.L.R. 79, it was held that where a license to occupy had been terminated it was not reasonable for the former licensee to continue to occupy the premises.

Where an occupier has been granted an assured shorthold tenancy pursuant to section 20 of the Housing Act 1988 (Encyclopedia, para. 1–1691), the landlord enjoys a mandatory ground for possession of the premises. Assured tenancies generally cannot be brought to an end by a landlord except by his obtaining an order from the court: section 5 ibid .

Facts

In August 1991, the applicant took an assured shorthold tenancy for one year, expiring at the end of August 1992. On July 15, 1991, her landlord served notice on her that he required possession of the premises on September 18, 1991.

Having received the notice, the applicant took legal advice and the solicitors acting on her behalf wrote to the respondents on July 22, asking them to deal with an application for accommodation under Part III of the Housing Act 1985, notwithstanding that she was not yet threatened with homelessness within 28 days. The respondents replied that they considered it reasonable for the applicant to remain in occupation of the premises until an order for possession was obtained against her, notwithstanding that she would then be liable for the costs of the hearing.

On August 23, 1991, the applicant made a formal application for housing to the respondents. On September 9, 1991, the respondents wrote to the applicant with their decision that she was considered to be neither homeless nor threatened with homelessness and that she could reasonably expected be to remain in the accommodation until the landlord obtained a possession order.

On November 19, 1991, the applicant lodged an application for judicial review of the decision. On November 20, 1991, her landlord obtained an order for possession against her and was awarded £280 costs. Subsequently, the respondents accepted the application, and rehoused the applicant in June 1992. The judicial review proceedings continued in respect of a claim for damages only.

Held (dismissing the application)
(1) The provisions of section 58 suggest that in seeking to balance the needs of those who become homeless through no fault of their own against the needs of those who have for some time perhaps been awaiting satisfactory accommodation on a long housing list, Parliament has said that those who are not able to be evicted except by a court order should be treated as not homeless so long as they retain that protection;
(2) Accordingly, it is not necessarily wrong for authorities to assert that it is reasonable for a person in the applicant’s position to continue in occupation until an order for possession is made; if they do so, they must recognise that the approach has been deprecated by the Code of Guidance, and that it means a landlord is being put to an expense, as is the tenant or ex-tenant;
(3) In this case, the respondents gave careful thought to what they were going to do, and gave the applicant’s legal advisers detailed reasons in advance and explained why they were doing what they were doing;
(4) The same result would not necessarily follow when considering intentionality under section 60 of the Housing Act 1985.

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