Andrew Arden QC
(Instructed by TV Edwards LLP)
(Instructed by Head of Legal Services LB of Newham and LB of Lewisham)
Martin Chamberlain QC
(Instructed by Treasury Solicitors)
LORD HODGE (with whom Lord Wilson, Lord Clarke and Lord Toulson agree)
The legal proceedings
The homelessness legislation
i) the concept of priority need (section 2),
ii) the obligation on the local housing authority to provide temporary accommodation while it investigates whether the applicant is homeless and in priority need and whether he or she is homeless intentionally (section 3), and
iii) the duties, arising from the results of that investigation, (a) to provide advice and appropriate assistance, (b) to provide temporary accommodation for a period to give a reasonable opportunity to secure other accommodation, or (c) to secure that accommodation becomes available for occupation (section 4).
"If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
Section 188(3) provides:
"The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review."
Protection from eviction legislation
"Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises."
"Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions "let" and "tenancy" shall be construed accordingly."
Section 3A, which the 1988 Act also introduced, listed excluded tenancies and licences. The listed exclusions now include among others a tenancy or licence granted as a temporary expedient to a trespasser (section 3A(6)), a tenancy or licence to occupy premises for a holiday (i.e. a holiday let) or if granted otherwise than for money or money's worth (i.e. a bare licence) (section 3A(7)), a tenancy or licence granted to provide accommodation under Part VI of the Immigration and Asylum Act 1999 (i.e. accommodation provided to asylum seekers and their dependants) (section 3A(7A)) or temporary accommodation to displaced persons (section 3A(7C)), and a licence which confers rights of occupation in a hostel provided by specified bodies (section 3A(8)). There is no general exclusion in section 3A of accommodation provided under Part VII of the 1996 Act or in particular under section 188 of that Act.
The first issue: the appellants' challenge
Discussion of the first issue
(i) "licence to occupy premises as a dwelling"
"The words 'dwell' and 'dwelling' are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as 'inhabit' and 'habitation' or more precisely 'abide' and 'abode', and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than 'reside' and 'residence', connoting the place where the occupier habitually sleeps and usually eats, "
In my view there is no strict hierarchy in terms of settled occupation between the words "live at", "reside" and "dwell" and much may depend on the context in which the words are used. But there are nuances and as a general rule I agree with Lord Millett that "dwelling" suggests a greater degree of settled occupation than "residence".
"As this is nightly paid temporary accommodation it is likely that you will be moved with short notice. When this occurs you will be expected to move on either the same day or the next working day. Also, if you plan to not stay at your accommodation for more than 1 night you must inform the council."
JN also undertook in the licence that only the persons named in her application for assistance would occupy the accommodation. Newham's licence to FI was for interim accommodation on a day-to-day basis while it decided whether it had a duty to provide her with re-housing. Newham explained that it had entered into arrangements with accommodation providers to provide self-contained accommodation and hotel accommodation which it let on a day-to-day basis. It stated:
"You occupy interim accommodation on a day to day basis. You do not therefore have the rights of security of a tenant. In the event that the proprietor does not want to continue to allow the council to use the property, we shall have to withdraw our permission for you to live there and ask you to move to other accommodation which we shall provide. If there is a need to move you we shall endeavour to tell you that as soon as we can. As you do not enjoy the rights of a tenant, if you are required to leave the interim accommodation and refuse there is no obligation on the proprietor of the premises or the council to obtain a Court Order requiring you to leave the premises."
Newham also required FI to sign a daily register and restricted those allowed to reside in the accommodation to three named individuals, namely FI, ZH and MI.
"First, the court enquires what is the extent and what are the characteristics of the user of the residence? When that is ascertained the court also enquires: Is the nature of the residence during the period that it persisted the kind of residence that is within the contemplation of the Rent Act? Is this the kind of residence that Parliament intended should clothe the tenant with the right to claim statutory protection?"
"I rest my decision primarily on the simple proposition, derived from a purposive construction of both statutes, that accommodation made available for an applicant pursuant to section 63(1) of the Housing Act 1985 pending a decision as a result of the local housing authority's inquiries under section 62 cannot, as a general rule, be premises let as a dwelling under a tenancy of premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. [I]t cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1)."
Henry LJ agreed with both judgments.
(ii) The exclusions in section 3A of PEA 1977
(iii) Inferences from other statutes
"A person is entitled to housing benefit if-
he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; "
It is argued that, if an applicant in temporary accommodation is entitled to housing benefit because she is occupying a dwelling as her home, she is also occupying a dwelling under a licence for the purposes of section 3(2B) of PEA 1977. But there are two answers which to my mind contradict this view. First, the social security legislation is in a different field of human activity from PEA 1977 and looks to the fact of occupation rather than the purpose of the letting. I see no reason why in the context of the 1992 Act temporary occupation of premises should not be treated as occupation as a home while in other legislation, which has different policy objectives, a different conclusion is reached. Secondly, the 1992 Act defines "dwelling" by reference to the type of building rather than its intended use. The definition of "dwelling" in section 137 is in these terms:
"any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises".
(iv) Settled practice and policy considerations
"A council's ability efficiently to perform their public duty as a local housing authority could be seriously affected if the protection of the 1977 Act were automatically to attach to every temporarily housed unsuccessful applicant for housing just because he had been able to satisfy the low threshold under [section 184] for investigation of his application."
In my view policy considerations do not point in one direction as a homeless person might prefer a court officer to control his or her eviction, and, in any event, as I have said (para 35 above) the inconvenience to local authorities is not sufficient by itself to determine the outcome this appeal.
(v) Further clarification
The second issue: Article 8 of ECHR
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Discussion of the second issue
"Those opportunities include the Homelessness Act 2002, the Housing and Regeneration Act 2008 and the Localism Act 2011, each of which amended Part VII of the 1996 Act; and the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Acts of 2002 and the Immigration, Nationality and Asylum Act 2006, each of which amended the 1977 Act." (para 83)
"Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions. If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it. This is an aspect of what may be called tacit legislation."
"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them."
"Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach."
He commented that this had "the air of pragmatism rather than principle", but agreed that courts are "understandably reluctant to disturb a settled construction and the practice that has been based on that construction" (referring to Bennion on Statutory Interpretation, 5th ed (2008), section 288 at p 913 and the authorities there cited).
"An important element in the construction of a provision in a statute is the context in which that provision was enacted. It is plain that those affected by the statute when it comes into force are better placed to appreciate that context than those subject to it thirty years later ." (para 61)
"My own respectful view is that Lord Blackburn's more liberal view is supported by considerations of common sense and the principle of legal certainty. Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers."(para 43)
Legal certainty and settled practice
"There has been no reported English decision bearing upon the point after Wilkes v. Goodwin  2 KB 86. But Parliament chose not to interfere in relation to 'board', and it seems to have been assumed ever since that the majority view in Wilkes v. Goodwin, albeit expressed obiter, correctly stated the law, in the words of Bankes LJ, at p 93, that 'any amount of board' which is more than de minimis will suffice to exclude a tenancy from statutory protection. Thus successive editions of Sir Robert Megarry's standard text book on the Rent Acts (Megarry, The Rent Acts) have stated that: 'In practice, the dividing line appears to fall between the early morning cup of tea on the one hand and 'bed and breakfast' on the other:" see 10th ed (1967), p 141. The same view has been adopted in Scotland: see Holiday Flat Co. v. Kuczera, 1978 SLT (Sh.Ct.) 47. My Lords, I think we must assume that for many years many landlords and tenants have regulated their relationships on this basis, and even if I thought that a different construction could reasonably be placed on section 7(1) of the Act of 1977 I would not think it right to adopt it now and to upset existing arrangements made on the basis of an understanding of the law which has prevailed for so long." (p 145-6)
The relevance of court decisions in relation to the Rent Acts
The Rent Act context
"[T]he question in such cases, where the subject-matter of the tenancy is one building used partly as a dwelling-house and partly as a shop, and no purpose is specified in the tenancy agreement, is whether the building should in a broad sense be regarded as a dwelling-house which is partly, or even substantially used for a shop, or on the other hand as a shop which is used in part for residential purposes".
It is not without significance that Romer LJ seems to have regarded "residential purposes" as being effectively synonymous with "dwelling-house let as a dwelling". In the same case, Sir Raymond Evershed MR similarly treated the letting of a dwelling-house as a dwelling as equivalent to "the premises" concerned being "used for residential purposes" at p 83.
"The setting in which the word appears in the statute is important. It is used in legislation which is intended to afford a measure of protection to tenants under assured tenancies. This context makes it inappropriate for the court to place restrictive glosses on the word 'dwelling'. On the contrary, the courts ought to interpret and apply the word 'dwelling-house' in [the Housing Act 1988] in a reasonably generous fashion."
This observation is supported by Lord Irvine's deprecation in para 2 of "a restrictive interpretation" given that the statutory purpose was "to give some protection to tenants in modest rented accommodation". It is also supported by Lord Bingham in para 10, where he said that a "dwelling-house" "describes a place where someone dwells, lives or resides", and stated that the legislation should be interpreted bearing in mind that it was "directed to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market".
"The words 'dwell' and 'dwelling' are ordinary English words, even if they are perhaps no longer in common use. They mean the same as 'inhabit' and 'habitation' or more precisely 'abide' and 'abode', and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than 'reside' and 'residence', connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports."
And in the following paragraph he added this:
"In both ordinary and literary usage, residential accommodation is 'a dwelling' if it is the occupier's home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence. Just what use he makes of it when living there, however, depends on his mode of life."
Conclusion on the Rent Act cases
The Protection from Eviction Act 1977
Other cases on statutory provisions referring to "residence" and "dwelling"
"[T]he prima facie meaning of normal residence is the place where at the relevant time the person in fact resides. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is 'shelter' but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such."
Conclusions on the first issue
The effect of previous Court of Appeal decisions on the issue
"To pre-empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of parliament to endorse the previous judicial decision would have to be expressed or clearly implied. Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respector at most implies merely the truism that the language has been the subject of judicial interpretation for whatever (and it may be much or little) that is worth."
Lord Edmund-Davies thought that Remington had been rightly decided, but that the statutory language had since significantly altered, and he was accordingly concerned with a different doctrine, namely the assumption that in enacting consolidating legislation Parliament did not intend to change the law see at 94. Only Lord Russell (who dissented) appears at pp 101-103 to have assumed that the Barras doctrine was correct.
"In that case, the Court of Appeal in 1948 (W T Lamb and Sons v Rider  2 KB 331) had given a provision of the Limitation Act 1939 an interpretation which the House thought was probably wrong. But Parliament had then enacted the Limitation Amendment Act 1980 in terms which made sense only on the basis that it was accepting the construction which had been given to the Act by the Court of Appeal."
Lord Hoffmann also said that "[t]he value of such previous interpretations as a guide to construction will vary with the circumstances."
"For a court of construction to constrain statutory language which has a primary natural meaning appropriate to its context so as to give it an artificial meaning which is appropriate only to remedy the mischief which is conceived to have occasioned the statutory provision is to proceed unsupported by principle, inconsonant with authority and oblivious of the actual practice of parliamentary draftsmen."