Mohamed v Manek and Royal Borough of Kensington and Chelsea: CA 28 Apr 1995

The claimant applied to the Council for accommodation, claiming to be homeless and in priority need. The council housed him in a hotel owned by Mr Manek in Tooting Bec . He had a room, a separate bathroom and lavatory, and shared use of a kitchen. After three days the council completed their investigations. Though homeless, he was not in priority need, and his accommodation arrangement would be terminated. He was given time to challenge this in court. He obtained an interim injunction against being evicted without a court order. The council appealed, but Mr Manek did not.
Held: Anti-harassment provisions in the 1977 Act do not apply to temporary housing provided by the Local Authority through a third party. The court adopted a purposive approach to interpretation of the Act, but restricted the finding to the particular arrangements in this hostel.
Auld LJ reviewed the case law on evictions: ‘In my view, none of those cases, on their facts or holdings, are of assistance in this case. The question here is not simply whether the hotel room was ‘occupied’ by Mr Mohamed as his residence or dwelling, but whether the council licensed him to occupy it as a dwelling. And, even if, contrary to my view, the agreement between the council and Mr Mohamed was a licence, it was clearly tailored to the fulfilment by the council of their statutory duty to arrange temporary accommodation under section 63 or 65 of the 1985 Act, no more.
The provisions in Part III of the 1985 Act for housing the homeless were formerly in the Housing (Homeless Persons) Act 1977. In my view, the provisions of the other Act of 1977, the Protection from Eviction Act, cannot have been intended to apply to the temporary housing by or on behalf of councils of the homeless. Under Part III of the 1985 Act councils have a public duty to secure accommodation under section 63 or 65 for many people. It is in the interests of good public administration that they should not have to commit their limited resources to securing accommodation for persons to whom, after making due inquiries, they properly decide they have no duty, at the expense of others to whom they may have a duty. The threshold for the duty is a low one, ‘reason to believe that an applicant may be homeless and have a priority need’. The inquiries may take only a few days and result in a decision that a temporarily housed applicant is not in fact homeless or in priority need. 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 63 for investigation of his application.
In my view, as a matter of construction of section 3(2B) of the 1977 Act, the expression ‘occupied as a dwelling under a licence’ cannot apply to bed-and-breakfast accommodation of this sort, when, as here, it is provided pursuant to an agreement clearly intended as a purely temporary arrangement pending the making of inquiries under section 62. The council’s duty under section 63 is only to secure accommodation pending those inquiries and their decision as a result of them. It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks drawn from another statute dealing with the private rights and duties of landlords (licensors) and tenants (licensees) as between themselves. Nor does it accord with the ordinary use of language to describe temporary accommodation in a hotel or hostel for this purpose as premises ‘occupied as a dwelling under a licence’. In my view, that is so whether the council provide the accommodation themselves or arrange it through some third party, subject in each case, however, to any contrary agreement. The agreement here was plainly not to the contrary. It bore all the marks of an arrangement for the purpose of section 63 only, and not, in Lord Greene’s words, ‘as a matter of fair and reasonable construction of simple words’ as premises occupied as a dwelling under a licence.’
Auld LJ: ‘If, despite the facts as I have summarised them, the council’s decision not to continue the arrangement at the Thames Hotel was a decision to discontinue securing temporary accommodation under section 63 of the 1985 Act, as distinct from an attempt to evict him without notice contrary to section 3 of the 1977 Act, it was a public law decision. It is not the decision that Mr Mohamed has sought to challenge in these proceedings. He could not do so, because, as a general rule, it is contrary to public policy and an abuse of process to allow proceedings by way of an ordinary action to challenge a decision affecting rights entitled to protection under public law. . . Nor is this a case where a private right has come into existence as a result of the council’s public law decision, so that ordinary civil proceedings may be taken to require them to discharge their executive, as distinct from their decision-making, function . . . Here the public law decision, if there was one, not to continue to secure temporary accommodation to Mr Mohamed did not confer on him any private right. It is the public law decision itself that Mr Mohamed seeks to challenge. The only way he can do that is to seek leave to apply for judicial review. Such a procedure, in its provision for interim relief, is capable of providing much longer tenure pending determination of a substantive application than the four weeks’ notice provided by the 1977 Act.’
Nourse LJ: ‘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 [or][1] premises occupied as a dwelling under a licence within section 3(1) and (2B) respectively of the Protection from Eviction Act 1977. The context and purpose of section 63(1) have been fully considered by Auld LJ and I agree with the views he has expressed. Moreover, it cannot be a purpose of the 1977 Act to give protection to persons whose entirely transient needs bring them within section 63(1). True, the general rule may be displaced by an agreement between an authority and an applicant such as had been entered into in Eastleigh Borough Council v. Walsh [1985] 1 W.L.R. 525, or perhaps if the applicant’s occupation is allowed to continue on a more than transient basis. But there was no such agreement or occupation here, nor anything else to take the case out of the general rule.
Judge Phelan, having referred to the judgment of Lord Denning M.R. in Luganda v. Service Hotels Ltd [1969] 2 Ch. 209 at 218-219, said that that case was from a long time ago and that here he was dealing with the rather different situation of the homeless in 1994. He added:
‘Certainly persons spending a few nights in a hotel normally have a dwelling elsewhere. This is not the situation of the homeless who have no dwelling. Where else would the Plaintiff be dwelling, even if for a very short time?’
Those observations suggest that the judge proceeded on an assumption that everyone must have a dwelling somewhere. In my view the 1977 Act makes no such assumption. Without some element of more than transient occupation, premises cannot properly be called a dwelling. Lord Denning’s observations are as valid now as they were in 1969. The two authorities relied on by the judge, Thurrock Urban District Council v. Shina (1972) 23 P. and C.R. 205 and Thrasyvoulou v. London Borough of Hackney (1986) 18 H.L.R. 370, are readily distinguishable.’
Auld LJ, said: ‘In my view, as a matter of construction of section 3(2B) of the 1977 Act, the expression ‘occupied as a dwelling under a licence’ cannot apply to bed-and -breakfast accommodation of this sort, when, as here, it is provided pursuant to an agreement clearly intended as a purely temporary arrangement pending the making of enquiries under section 62. The council’s duty under section 63 is only to secure accommodation pending those inquiries and their decision as a result of them. It cannot have been the intention of Parliament that there should be grafted on to that public and temporary obligation an extension of it by at least four weeks drawn from another statute dealing with the private rights and duties of landlords (licensors) and tenants (licensees) as between themselves. Nor does it accord with the ordinary use of language to describe the temporary accommodation in a hotel or hostel for this purpose as premises ‘occupied as a dwelling under a licence’. In my view, that is so whether the council provide the accommodation themselves or arrange it through some third party, subject in each case, however, to any contrary agreement. The agreement here was plainly not to the contrary. It bore all the marks of an arrangement for the purpose of section 63 only and not, in Lord Greene’s words, ‘as a matter of fair and reasonable construction of simple words’ as premises occupied as a dwelling under a licence.’
Nourse LJ pointed out that the general rule that accommodation made available for this temporary purpose was not to be considered a ‘dwelling’ under the 1977 Act might be displaced ‘if the applicant’s occupation is allowed to continue on a more than transient basis.’
Auld, Henry and Nourse LJJ
Times 28-Apr-1995, [1995] 27 HLR 439, (1995) 30 HLR 481
Protection from Eviction Act 1977 3
England and Wales
Citing:
CitedCocks v Thanet District Council HL 25-Nov-1981
The applicant had been given temporary accomodation under the Act. He sought to enforce the obligation on the respondent to house him permanently by an action in the county court. The authority said the action should have been by judicial review. . .
CitedMohram Ali v Tower Hamlets London Borough Council CA 27-May-1992
A challenge to the exercise of homelessness duties by a local authority must be by way of Judicial Review. Nolan LJ: ‘It follows that in my judgment the public law duties of the council were not discharged until they had completed the process of . .

Cited by:
CitedBrennan v London Borough of Lambeth CA 3-Jun-1997
The appellant sought to resist his eviction from temporary hostel accomodation provided to him by the local authority, saying that the provisions of the 1977 Act protected him.
Held: The agreement was a licence excluded from protection by the . .
Not per incuriamDesnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
ConsideredRogerson v Wigan Metropolitan Borough Council 2005
The court considered both whether Mohamed v. Manek was still binding and whether the facts of the case were covered by the prior decision, having regard in particular to the emphasis on transience which emerges from the judgment of Nourse LJ. Heled: . .
CitedRogerson v Wigan Metropolican Borough Council QBD 14-Jul-2004
The claimant sought damages under the 1977 Act. The defendant said it had behaved lawfully. He had been housed in a hostel pending a decision on the application for permanent housing as a homeless person, which the defendant said excluded him from . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.83788