28 March 1985
|EASTLEIGH BOROUGH COUNCIL||(RESPONDENT)|
|WALSH (A.P.)||(APPELLANT) (ENGLAND)|
Lord Keith of Kinkel
Lord Bridge of Harwich
LORD KEITH OF KINKEL
LORD BRIDGE OF HARWICH
"If the authority have reason to believe that the person who applied to them may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending any decision which they may make as a result of their inquiries . . ."
"(1) Without prejudice to the provisions of Chapter I of Part I of the Housing Act 1980 (right to buy public sector houses), a local authority shall have power by this section, but not otherwise, to dispose of any land which they have acquired or appropriated for the purposes of this part of this Act.
(2) A disposal under this section may be effected in any manner but is not to be made without the consent of the Minister, except in a case falling within subsection (3) below.
(3) No consent is required for the letting of any land under a secure tenancy (within the meaning of section 28 of the Act of 1980) or under what would be a secure tenancy but for any of paragraphs 2 to 13 of Schedule 3 to that Act (certain lettings which do not create secure tenancies)."
"A tenancy granted in pursuance of section 3(4), 4(3) or 5(6) of the Housing (Homeless Persons) Act 1977 is not a secure tenancy before the expiry of a period of twelve months beginning with the date on which the tenant has received the notification required by section 8(1) of that Act or, if he received a notification under section 8(5) of that Act, that notification, unless he has before the expiry of that period been notified by the landlord that the tenancy is to be regarded as a secure tenancy."
"Dear Mr. and Mrs. Walsh,
Address 97 Falcon Square, Eastleigh
3 Bed House. Gross Weekly Rent £19.09
Proposed tenancy commencement date 19 October 1981
In compliance with the Housing (Homeless Persons) Act 1977, I am authorised to offer you the tenancy of the above property, pending a decision which may be made as a result of further inquiries. You will be notified of the result of these investigations in due course."
"KEY RECEIPT. I acknowledge receipt of six keys of -Address:- 97 Falcon Square, Eastleigh. These keys relate to my tenancy of the above address and become my responsibility for the duration of the tenancy, and must be returned to the Council when it terminates."
(c) a document entitled "Eastleigh District Council - Housing Department. Conditions of Tenancy." This document contained the following relevant terms:
"1. The tenancy may be ended by either the council or the tenant giving not less than four weeks notice in writing to expire at twelve noon on a Monday.
"2. The rent will become due each Monday, for the week beginning that day. In addition to the rent, the total amount payable includes charges for General Rates, Water Rate, and may include others such as for heating. All these charges may be varied without giving four weeks notice.
"3. [Positive tenant's covenants].
"4. and 5. [Negative tenant's covenants].
"9. Acceptance of the tenancy shall be conclusive evidence of the tenant's agreement to the above conditions."
"Parliament never intended or expected that what was obviously temporary accommodation should be intended to be a tenancy so that all the protection of the law followed. That runs contrary to all the reasoning that was intended behind the Act. It is inconceivable that it was ever intended that that situation was ever intended to create a tenancy."
"In my view this judge was entitled to look at this arrangement with the eyes of common sense, and to conclude, as he did, that a council giving emergency shelter under this Act was not intending to create a tenancy, despite the fact that they foolishly used the same paperwork as they used for their ordinary council tenants, and that he was further entitled to draw the inference that the occupant well realised that that was the true state of affairs.
Accordingly, I have come to the conclusion that the judge was right to hold that the nature of the occupancy in this case was an exclusive licence and not a tenancy, and that as it was duly determined by the council no security of tenure was obtained by the tenant, and that he rightly made his order for possession."
Stephen Brown, L.J., concluded:
". . . it was essentially a question of fact to be decided in accordance with ail evidence before the court. On the evidence before [the judge] he came to clear conclusions of fact, and he made a decision which, in my judgment, was open to him and which indeed was in accordance with common sense when looking at the whole of the evidence."
"(1) A housing authority may perform any duty under section 4 or 5 above to secure that accommodation becomes available for the occupation of a person -(a) by making available accommodation held by them • under Part V of the Housing Act of 1957 ...(b) by securing that he obtains accommodation from some other person."
"Where a person who is not the tenant of a dwelling-house has a licence (whether or not granted for a consideration) to occupy the dwelling-house and the circumstances are such that, if the licence were a tenancy, it would be a secure tenancy, then, subject to subsection (2) below, this Part of this Act applies to the licence as it applies to a secure tenancy and, as so applying, has effect as if expressions appropriate to a licence were substituted for 'landlord', 'tenant', 'tenancy' and 'secure tenancy'."
Die Jovis 28° Martii 1985
Upon Report from the Appellate Committee to whom was referred the Cause Eastleigh Borough Council against Walsh (Assisted Person), That the Committee had heard Counsel as well on Wednesday the 6th as on Thursday the 7th days of this instant March upon the Petition and Appeal of Ralph Joseph Walsh of 97 Falcon Square, Eastleigh, Hampshire, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 19th day of November 1984, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Eastleigh Borough Council lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 19th day of November 1984 complained of in the said Appeal be, and the same is hereby, Reversed: and that the Order of the Southampton County Court of 17th May 1984 be Set Aside: And it is further Ordered, That the Respondent do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties; And it is further Ordered, That the costs of the Appellant in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974; And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Southampton County Court to do therein as shall be just and consistent with this Judgment.