Westminster City Council v Clarke [1992] UKHL 11

House of Lords
Between
Westminster City CouncilAppellantClarkeRespondent
Before
Lord MayorDate 13 November 1989
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 21st day of March 1991 complained of in the said Appeal be, and the same is hereby, Set Aside save as to legal aid taxation and that the Order of Westminster County Court of the 16th day of October 1989 be, and the same is hereby, Restored, save that in paragraph 1 for the words "13th November 1989" there shall be substituted the words "5th March 1992": And it is further Ordered, That the costs of the Appellants in this House and in the Court of Appeal be paid out of the Legal Aid Fund in accordance with section 18 of the Legal Aid Act 1988, such order to be suspended for four weeks to allow the Legal Aid Board to object if they wish: And it is further Ordered, That the costs of the Respondent be taxed in accordance with the Legal Aid Act 1988: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Westminster County Court to do therein as shall be just and consistent with this Judgment.Cler: Parliamentor:

Judgment: 6 February 1992

HOUSE OF LORDS

LORD MAYOR ETC. OF THE CITY OF WESTMINSTER

(APPELLANTS)

v.

CLARKE (A.P.) (RESPONDENT)

Lord Bridge of Harwich Lord Templeman Lord Griffiths Lord Ackner Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Templeman and, for the reasons which he gives, I would allow the appeal and restore the trial judge's order.

LORD TEMPLEMAN

My Lords,The appellants Westminster City Council, have provided accommodation for the respondent, Mr. Clarke, and the question is whether Mr. Clarke is a licensee or a secure tenant.Part III of the Housing Act 1985 which begins at section 58 and ends with section 78 requires a local housing authority to provide accommodation to certain persons who are homeless and in need.

B

y section 58:
"(1) A person is homeless if he has no accommodation in England, Wales or Scotland.
(2) A person shall be treated as having no accommodation if there is no accommodation which he, together with any other person who normally resides with him as a member of his family . . .( a ) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, or

( b ) has an express or implied licence to occupy, . . . or

( c ) occupies 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."By section 59(1) certain homeless persons are classified as having:

"... a priority need for accommodation -

a pregnant woman . . . ;a person with whom dependent children reside . . . ;( c ) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason. . . . ;( d ) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster."By section 62:
"(1) If a person (an 'applicant') applies to a local housing authority for accommodation, . . . and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.
(2) If they are so satisfied, they shall make any further inquiries necessary to satisfy themselves as to -

( a ) whether he has a priority need, and

( b ) whether he became homeless or threatened with homelessness intentionally;and if they think fit they may also make inquiries as to whether he has a local connection with the district of another local housing authority . . . . "Section 63 makes provision for the temporary accommodation of some applicants where the local authority is making the necessary inquiries:
"(1) If the local housing authority have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62."
On completing their inquiries under section 62 the local housing authority must decide whether the applicant is homeless, if so, whether he has a priority need, and if so, whether he became

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homeless intentionally and whether they propose to refer him to another local authority on grounds of local connection. By section 64 these decisions must be notified to the applicant supported by reasons. By section 65 where a local authority are satisfied that the applicant is homeless and:
"(2) . . . they are satisfied that he has a priority need and are not satisfied that he became homeless intentionally, they shall, unless they notify another local housing authority in accordance with section 67 (referral of application on grounds of local connection), secure that accommodation becomes available for his occupation."
Section 65(3) imposes on a local housing authority a duty to house temporarily an applicant found to have a priority need but to have become homeless intentionally and also a duty to house an applicant sending a determination as to whether the conditions for the referral of the application to another local housing authority are satisfied.The appellant Council are a local housing authority. The respondent, Mr. Clarke, satisfied the council that he was homeless, and that he had a priority need as a vulnerable person under Section 59 (1) (c) of the Act. The council were not satisfied that Mr. Clarke had become homeless intentionally and they did not refer Mr. Clarke's application for accommodation to another local housing authority. The council accepted towards Mr. Clarke the duty imposed on them by section 65(2) to "secure that accommodation becomes available for his occupation."The Council own a terrace of houses 131-137 Cambridge Street. The premises are used by the Council as a hostel. There are 31 single rooms each with a bed and limited cooking facilities. There was originally a common room which has since been vandalised. The occupiers of the hostel are homeless single men, including men with personality disorders or physical disabilities, sometimes eccentric, sometimes frail, sometimes evicted from domestic accommodation or discharged from hospital or from prison. Experience has shown the possibility that the hostel may have to cope with an occupier who is suicidal or alcoholic or addicted to drugs. There is a warden supported by a resettlement team of social workers. The hope is that after a period of rehabilitation and supervision in the hostel, each occupier will be able to move on to permanent accommodation where he will be independent and look after himself. In the case of Mr. Clarke, the hostel was designed to be a halfway house for rehabilitation and treatment en route to an independent home. In these circumstances Mr. Clarke was provided with accommodation at the hostel pursuant to an agreement entitled "Licence to Occupy" dated 5 February 1987, addressed to Mr. Clarke and, so far as material, in the following terms:-
"Westminster City Council by this licence which is personal to you will allow you to occupy in common with the council and any other persons to whom the same right is granted accommodation at the single persons hostel at 131-137, Cambridge Street SW1 in the City of Westminster. The terms of the licence under which you agree to occupy the accommodation are set out below and the current conditions of occupation are set out hereafter . . .

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This licence does not give you and is not intended to give you any of the rights or to impose upon you any of the obligations of a tenant nor 'does it give you the right of exclusive occupation of any particular accommodation or room which may be allotted to you or which you may be allowed to use nor does it create the relationship of landlord and tenant. The accommodation allotted to you may be changed from time to time without notice as the council directs and you may be required to share such accommodation with any other person as required by the council. Any furniture provided or services of whatever nature may be changed or withdrawn at any time.The licence permits you only and not any person invited by you to occupy accommodation in common with the council whose representative may enter the accommodation at any time. You may use the accommodation as living accommodation only and not for any other purpose.The council may terminate the licence at any time, by giving you not less than 7 days notice in writing and you must leave at the end of that time except that if you fail to pay the charges hereinafter provided or if you break the terms of the licence or the conditions of occupation in any other way the licence may be terminated forthwith ....

Undertaking by licensees

I have read and I agree to observe the above licence and the conditions of occupation set out overleaf.I agree to pay regularly in advance on Monday of each week the charge of £16.79 for the accommodation and for the services provided. I understand that this charge is assessed on my present financial circumstances and that the charge will be amended if the council's scale of charges is amended or if my circumstances alter.I understand that failure to pay the weekly charge or to observe the terms of the licence or the conditions of occupation may result in the council requiring me to leave the accommodation.

Conditions of occupation

In the interest of the council and of other residents certain conditions have to be made and these conditions may be changed from time to time as the council considers necessary. You are asked to co- operate with the council's staff and in particular you are required:

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(1) Not to invite any person to share the accommodation with you nor allow any person to stay overnight.To keep the accommodation allocated to you in a clean condition and to take care of all furniture, bed linen or other articles provided.To clean and leave tidy on each occasion after use by you the bathroom and toilet accommodation.To pay for any damage caused ....To be in your accommodation by not later than 11 p.m. and to ensure that visitors leave by not later than this time ....(6) To do nothing which may cause nuisance, annoyance or discomfort to other residents and to be responsible for the behaviour of your visitors . . .(10) To comply with the directions of the council's warden or other staff in charge of the hostel."Mr. Clarke was allocated Room E on the first floor of 131 Cambridge Street. On 13 April 1988 the Council gave Mr. Clarke notice terminating his licence. The notice was issued because of complaints by residents and others that Mr. Clarke had caused nuisance and annoyance and noise. On 13 November 1988 the Council issued the summons in these proceedings for possession. Mr. Clarke, by his defence, claimed to be a "secure tenant" entitled to the protection of Part IV of the Act of 1985. Subsequently Mr. Clarke smashed up Room E and threw the Council's furniture and his clothes into the street. He was taken away by the Police and subsequently returned. The incident is an illustration of the need for the Council to be able to evict an occupier at short notice. The trial judge, Mr. Recorder Langan Q.C., made an order for possession in favour of the Council but his decision was reversed by the Court of Appeal (Dillon, Balcombe and Ralph Gibson L.JJ.) who held that Mr. Clarke was a secure tenant of Room E and dismissed the Council's claim for possession. The Council now appeal.Part IV of the Act of 1985 entitled "Secure tenancies and rights of secure tenants" begins with section 79 and ends with section 117. By section 79:
"(1) A Tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

(2) Subsection (1) has effect subject to -

( a ) the exceptions in Schedule 1 (tenancies which are not secure tenancies), . . .(3) The provisions of this Part apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy."

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The landlord condition prescribed by section 80 is that the interest of the landlord belongs to certain authorities or bodies including a local authority. In the present case, therefore, the landlord condition is satisfied. The tenant condition prescribed by section 81 is:
"... that the tenant is an individual and occupies the dwelling-house as his only or principal home; ..."
Mr. Clarke occupies room E as his only home. If room E is a separate dwelling-house occupied under a tenancy or licence by Mr. Clarke as his only home, then Mr. Clarke is a secure tenant. The exceptions set forth in Schedule 1 do not apply.If Mr. Clarke is a secure tenant the Council cannot obtain possession unless they first serve a notice prescribed by regulations made under Section 83 of the Act of 1985 and institute proceedings within the time limit prescribed by that section. By Section 84, as applied to the present case, the Court will then only be able to make an order for possession if Mr. Clarke has been guilty of conduct which is a nuisance or annoyance to neighbours and if the Court considers that it is reasonable to make the order. If therefore Mr. Clarke is a secure tenant, the Council- may not be able to obtain possession of Room E and cannot speedily obtain possession of any of the hostel rooms. If Mr. Clarke is not a secure tenant then he has no defence to the Council's present action for possession.Section 112 of the Act of 1985 provides that for the purposes of Part IV a dwelling-house may be a house or part of a house. Under the Rent Acts, in order to create a letting of part of a house as a separate dwelling there must be an agreement by which the occupier has exclusive possession of essential living rooms of a separate dwelling house. Essential living rooms provide the necessary facilities for living, sleeping and cooking. Thus a bed-sitting room with cooking facilities may be a separate dwelling house even though bathroom and lavatory facilities might be elsewhere and shared with other people; see Neale v Del Soto [1945] K.B. 144, Cole v Harris [1945] K.B. 474 and Goodrich v Paisner [1957] A.C. 65 at 79. Room E provides facilities for living, sleeping and cooking. Room E is occupied by Mr. Clarke as his only home. Section 79 (1) of the Act of 1985 employs the language of the Rent Acts. Accordingly Mr. Clarke is a secure tenant of Room E if he enjoys exclusive possession of Room E. In order to determine whether Mr. Clarke enjoys exclusive possession of Room E, the rights conferred on Mr. Clarke and the rights reserved to the Council by the licence to occupy must be considered and evaluated.Mr. Sedley, who appeared on behalf of Mr. Clarke, submitted that Mr. Clarke was a secure tenant even if he was not granted exclusive possession of Room E. Section 79 (3), he said, applies to any licence to occupy a dwelling house. This submission would confer security of tenure on a lodger and on a variety of licensees and is contrary to the language of Section 79 (3) which applies the provisions of Part IV of the Act to a licence "as they apply in relation to a tenancy." Part IV only applies to a tenancy of a dwelling house let as a separate dwelling namely with

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exclusive possession. Part IV therefore applies to a licence which has the same characteristics. A tenant or licensee can only claim to be a secure tenant if he has been granted exclusive possession of a separate dwelling house.The predecessor of Section 79 (3) of the Act of 1985 was Section 48 of the Housing Act 1980 which provided that where under a licence "the circumstances are such that, if the licence were a tenancy, it would be a secure tenancy then . . . this Part of this Act applies to the licence as it applies to a secure tenancy." The result of Section 48 of the Act of 1980 was that, whether the occupier was a tenant or a licensee, he must be granted exclusive possession in order to become a secure tenant. The Court of Appeal so held in Family Housing Association v Miah [1982] 5 H.L.R. 94 and Royal Borough of Kensington and Chelsea v Hayden [1984] 17 H.L.R. 114.The Rent Acts do not apply to a licence and Section 48 of the Act of 1980 was enacted at the time when some private landlords were granting exclusive possession of residential accommodation at a rent but in the form of a licence. Section 48 of the Act of 1980 made clear that such a licence created a secure tenancy. Subsequently in Street v Mountford [1985] A.C. 809 this House reaffirmed the general principle that a grant of exclusive possession of residential accommodation at a rent created a tenancy protected by the Rent Acts notwithstanding that the parties intended to grant and expressed themselves as having granted a licence and not a tenancy. The decision of this House in Street v Mountford [1985] AC 809 was published on 2 May 1985. The Act of 1985 received the Royal Assent on 30 October 1985. In Family Housing Association v Jones [1990] 1 W.L.R. 779 Balcombe L.J. held at p.790 that in these circumstances Section 79 (3) of the Act of 1985 must have been intended to alter the law and to confer the status of a secure tenant on a licensee who did not enjoy exclusive possession. The Court of Appeal in the instant case felt bound to follow its decision in Family Housing Association v Jones [1990] 1 W.L.R. 779 though Dillon L.J. doubted the soundness of that decision so far as it construed Section 79 (3) and Balcombe L.J. to some extent resiled from his earlier views. In my opinion Section 79 (3) did not alter the law. The Act of 1985 was an enactment which consolidated various statutes including the Act of 1980 and gave effect to certain recommendations of the Law Commission. Those recommendations did not relate to Section 48 of the Act of 1980. Therefore Section 79 (3) was a consolidating measure and in redrafting Section 48 of the Act of 1980 in the form of Section 79 (3) of the Act of 1985 the draftsman had no power to alter the law. In my opinion, on the true construction of Section 48 of the Act of 1980 and on the true construction of Section 79 (3) of the Act of 1985, whether those sections be considered together or separately a licence can only create a secure tenancy if it confers exclusive possession of a dwelling house.So the question is whether the "licence to occupy" followed by the allocation of Room E and the payment of rent conferred on Mr. Clarke exclusive possession of Room E. In Street v Mountford [1985] A.C. S09 the landlord agreed to grant a licence of residential accommodation for a weekly fee. The agreement was designated a licence and contained a declaration that the licence

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did not create and was not intended to create a tenancy protected by the Rent Acts. Nevertheless the licensee enjoyed exclusive possession; a third party could not lawfully interfere with that possession and the landlord only reserved limited powers to enter to protect his own interests as a landlord. The licence created a tenancy.In A.G. Securities v Vaughan [1990] 1 AC 417 four separate bedrooms in a house were occupied by four separate individuals under four separate and independent agreements, all four occupiers being entitled to share the house in common. But they did not enjoy exclusive possession of the house jointly. Each had exclusive possession of one bedroom but shared possession of the other parts of the house. The bedroom was not a dwelling house and the house was shared. In these circumstances each occupier was a licensee. In Antoniades v Villiers also reported at [1990] 1 AC 417 a one bedroomed flat was occupied by a couple on the terms of licences which expressly reserved to the owner the right to share and permit other persons to share the flat. The reservation, which was not and could not reasonably be acted upon, was a pretence designed to disguise the fact that the couple were granted exclusive possession at a rent and were therefore tenants. In the present case no pretence is involved. The question is whether upon the true construction of the licence to occupy and in the circumstances in which Mr. Clarke was allowed to occupy Room E, there was a grant by the Council to Mr. Clarke of exclusive possession of Room E.From the point of view of the Council the grant of exclusive possession would be inconsistent with the purposes for which the Council provided the accommodation at Cambridge Street. It was in the interests of Mr. Clarke and each of the occupiers of the hostel that the Council should retain possession of each room. If one room became uninhabitable another room could be shared between two occupiers. If one room became unsuitable for an occupier he could be moved elsewhere. If the occupier of one room became a nuisance he could be compelled to move to another room where his actions might be less troublesome to his neighbours. If the occupier of a room had exclusive possession he could prevent the Council from entering the room save for the purpose of protecting the Council's interests and not for the purpose of supervising and controlling the conduct of the occupier in his interests. If the occupier of a room had exclusive possession he couid not be obliged to comply with the terms of the conditions of occupation. Mr. Clarke could not, for example, be obliged to comply with the directions of the warden or to exclude visitors or to comply with any of the other conditions of occupation which are designed to help Mr. Clarke and the other occupiers of the hostel and to enable the hostel to be conducted in an efficient and harmonious manner. The only remedy of the Council for breaches of the conditions of occupation would be the lengthy and uncertain procedure required by the Act of 1985 to be operated for the purpose of obtaining possession from a secure tenant. In the circumstances of the present case I consider that the Council legitimately and effectively retained for themselves possession of Room E and that Mr. Clarke was only a licensee with rights corresponding to the rights of a lodger. In reaching this conclusion I take into account the object of the Council, namely the provision of temporary accommodation for vulnerable

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homeless persons, the necessity for the Council to retain possession of all the rooms in order to make and administer arrangements for the suitable accommodation of all the occupiers and the need for the Council to retain possession of every room not only in the interests of the Council as the owners of the terrace but also for the purpose of providing for the occupier supervision and assistance. For many obvious reasons it was highly undesirable for the Council to grant to any occupier of a room exclusive possession which obstructed the use by the Council of all the rooms of the hostel in the interests of every occupier. By the terms of the licence to occupy Mr. Clarke was not entitled to any particular room, he could be required to share with any other person as required by the Council and he was only entitled to "occupy accommodation in common with the Council whose representative may enter the accommodation at any time." It is accepted that these provisions of the licence to occupy were inserted to enable the Council to discharge its responsibilities to the vulnerable persons accommodated at the Cambridge Street terrace and were not inserted for the purposes of enabling the Council to avoid the creation of a secure tenancy. The conditions of occupancy support the view that Mr. Clarke was not in exclusive occupation of Room E. He was expressly limited in his enjoyment of any accommodation provided for him. He was forbidden to entertain visitors without the approval of the Council staff and was bound to comply with the Council's warden or other staff in charge of the hostel. These limitations confirmed that the Council retained possession of all the rooms of the hostel in order to supervise and control the activities of the occupiers, including Mr. Clarke. Although Mr. Clarke physically occupied Room E he did not enjoy possession exclusively of the Council.This is a very special case which depends on the peculiar nature of the hostel maintained by the Council, the use of the hostel by the Council, the totality immediacy and objectives of the powers exerciseable by the Council and the restrictions imposed on Mr. Clarke. The decision in this case will not allow a landlord private or public to free himself from the Rent Acts or from the restrictions of a secure tenancy merely by adopting or adapting the language of the licence to occupy. The provisions of the licence to occupy and the circumstance in which that licence was granted and continued lead to the conclusion that Mr. Clarke has never enjoyed that exclusive possession which he claims. I would therefore allow the appeal and restore the Order for possession made by the trial judge.

LORD GRIFFITHS

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend. Lord Templeman and, for the reasons which he gives. I, too, would allow the appeal and restore the trial judge's order.

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LORD ACKNER

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Templeman and, for the reasons which he gives, I, too, would allow the appeal and restore the trial judge's order.

LORD LOWRY

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Templeman and, for the reasons which he gives, I, too, would allow the appeal and restore the trial judge's order.

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