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Too much, too soon

A High Court judge recently allowed an appeal against a decision of a Circuit Judge to dismiss a claim that an asylum seeker who had been accommodated by a local authority under the “Everyone In” scheme did not have an arguable case that he had been granted a secure tenancy. Justin Bates explains why.

In Ibrahim v Haringey LBC [2021] EWHC 731 (QB) (Lane J) the applicant was a homeless foreign national who was not eligible for assistance under Part 7, Housing Act 1996. In May 2020, he approached the local authority for assistance and was provided with accommodation in a self-contained flat under a licence. A few days later, the local authority determined that it had made a mistake and he should have been provided with accommodation in a hotel under the “Everyone In” scheme. It sought to evict him from the flat. In response, he contended that he had been granted a secure tenancy/licence of the flat (ss.79-81, Housing Act 1985) and eviction without a court order would be an unlawful eviction. He issued a claim seeking a declaration as to his status and damages for harassment/unlawful eviction. He obtained an ex parte injunction prohibiting his eviction.

At the return date, the Circuit Judge held that there was no tenancy or licence because the parties had not entered into legal relations; the acts of the local authority were akin to acts of charity so that no legal relationship had arisen; in any event, the letting was not of a “dwelling” as it was too temporary and emergency accommodation (relying on R (CN) v Lewisham LBC; R (ZH) v Newham LBC [2014] UKSC 62; [2015] H.L.R. 6). The local authority offered to provide temporary accommodation in a hotel in response to the public health crisis. In reliance on his findings and that offer, the Circuit Judge discharged the injunction and dismissed the entirety of the claim. The applicant appealed against the dismissal of the claim, contending that the judge had been wrong to find that there was no intention to create legal relations.

The appeal was allowed by Mr Justice Lane. The course adopted by the judge had been procedurally unfair. The parties had attended the return date expecting to deal only with whether the injunction should continue; the judge had been wrong to deal with the underlying claim as well. Moreover, the judge had gone too far in making the findings that he had made. There was a dispute between the parties as to the power which had been used to provide the accommodation and whether what had been granted was a secure tenancy/licence of some lesser right. That was a dispute of fact and law which was not suitable for determination at an interim injunction hearing. Whilst, at first sight, it might be said that CN supported the argument that this emergency accommodation was not let as a “dwelling”, the point was not so clear that it should have been decided summarily at the return date and should go to trial.

Justin Bates of Landmark Chambers led Matthew Lee of Lamb Building on behalf of the successful appellant. They were instructed by Duncan Lewis solicitors.

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