30 March, 2021 Open access
30 March, 2021 Open access
 EWHC 731 (QB)
In a new judgment, the High Court has ruled that a County Court judge was wrong to dismiss a claim that a local authority had granted a tenancy or licence to a rough sleeper who was accommodated in response to the Covid-19 pandemic.
In Ibrahim v London Borough of Haringey & Anor  EWHC 731 (QB) (30 March 2021), the claimant had been supported by the Secretary of State for the Home Department as an asylum seeker or failed asylum seeker (it was unclear which) before beginning to sleep rough.
Having approached the London Borough of Haringey for accommodation, the claimant signed what purported to be an agreement for the provision of 'Temporary Accommodation provided under Licence to an Occupier for Homelessness Assistance under s. 188(1) or s. 190(2) Housing Act 1996 Part VII Homelessness'. Under the agreement, the occupier acknowledged that the accommodation would not become a grant of a tenancy 'as it is a licence to occupy the accommodation for as long as the Local Authority states I am allowed to remain in it on a temporary B&B type basis'.
It was common ground before the High Court that the accommodation provided under the agreement, which was dated 12 May 2020, was not temporary accommodation provided pursuant to section 188 or 190 of the Housing Act 1996. This was because the claimant did not have status in the UK and might well have remained eligible for asylum support accommodation. The local authority made a mistake in having recourse to the housing agreement and ought merely to have arranged for the claimant to be given a room in a Travelodge. Instead, the local authority referred the claimant to Capital Homes Services Ltd, which provided the claimant with a self-contained flat rather than the temporary hotel accommodation intended. Having appreciated its mistake, the local authority caused the claimant to be told, on 14 May 2020, that he should move to the Travelodge.
On 15 May 2020, the claimant initiated proceedings in the County Court, contending that he had been granted either a tenancy or a licence of the flat. Further or alternatively, the claimant asserted that an express term had been agreed orally between him and a person employed by the council when signing the agreement, that he could reside in the premises until the end of the Covid-19 crisis.
The claimant also contended that on 14 May 2020 a representative of Capital Homes Services Ltd had, on the local authority's instructions, attempted to evict him without prior notice from the flat, and he alleged harassment, alarm and distress for which he sought damages, together with declarations confirming his security as a tenant or licensee.
In addition, the claimant applied for an injunction, compelling the defendants to re-admit him to the flat and forbidding them from interfering with his quiet enjoyment of it.
Following a telephone hearing on 18 May 2020, HHJ Hellman, sitting at Central London County Court, granted an interim injunction, forbidding the defendants from excluding the claimant from the property or in any way interfering with his quiet enjoyment of it. The injunction was expressed to last until 'the outcome of the hearing scheduled to take place on Thursday 21 May at 10.30am, or until further order'.
After hearing oral submissions in the County Court on 21 May 2020, HHJ Saunders gave judgment the following day. The judge decided that on the substantive issue of whether the claimant had been granted a tenancy or licence there was no serious issue to be tried 'simply because there was no intention to create legal relations'. In addition, he said that, even if he was wrong about the lack of intention to create legal relations, the claimant was, nevertheless, neither 'a secure tenant or licensee' because, following the House of Lords judgment in Street v Mountford -
'... exclusive possession is not the be all and end all. One should look at the agreement', and the agreement between the parties in the present case was 'wholly silent on exclusive possession'.
As a result, HHJ Saunders found that the parties had not entered into any legal relationship and ordered that the claimant's application for an interim injunction be dismissed.
The claimant then appealed to the High Court against HHJ Saunders' order on three grounds -
* * * * *
Highlighting that the central issue in the appeal was whether HHJ Saunders was right, in deciding a claim for interim relief, to make a finding that disposed of the claimant's entire substantive case, Mr Justice Lane says that it was quite clear that the lawyers appearing for the claimant in the County Court had not embarked upon the hearing in the expectation that the ensuing judgment would not only deal with interim relief but also entirely dispose of the substantive claim. Mr Justice Lane adds that -
'Although both sides accepted before me that there may be circumstances in which, on an application for interim relief, findings may be made that are effectively of a "final" nature, the court must be assiduous to ensure that – if it considers such an outcome is possible in the proceedings before it – that possibility is squarely grasped by the parties and their representatives and that they are given the opportunity of addressing it.' (paragraph 42)
Mr Justice Lane also reject's the local authority's submission that under CPR 24.2(a)(i) a court is able to give summary judgment against a claimant on the whole or part of a claim where the court considers that 'the claimant has no real prospect of succeeding on the claim or issue', and that as accepted by the claimant, the test of 'no serious question to be tried' for the purposes of an application for an interim injunction is very similar, if not identical, to the test of 'no real prospect of succeeding on the claim or issue' in CPR 24.2(a).
Instead, Mr Justice Lane says that, despite the similarity of the tests, the summary judgment process has a number of important features that are not to be found in the procedure governing interim relief including that, for there to be summary judgment there has to be an application, which puts the other side on notice of precisely what the applicant is seeking. In addition, Mr Justice Lane says that while in reaching a conclusion on summary judgment the court may have regard to evidence that can reasonably be expected to be available at trial, in an interim relief application the court is enjoined not to assume too much about what the facts and/or the legal answers to the case might eventually be.
As a result, Mr Justice Lane finds that -
'... there was real procedural unfairness to the claimant. Having embarked on what those acting for him rightly considered to be an application for the continuation of HHJ Hellman's order for interim relief (and only that); and having argued on that basis (as did counsel for the first defendant), the claimant's position after the finalisation of the order was that he had not only lost his application for the continuation of interim relief but also his substantive claim, so that his only remedy was to appeal to the High Court. (paragraph 53)
Having set aside the decision of HHJ Saunders in relation to interim relief, Mr Justice Lane says that - although he considers that the breach of procedural fairness in itself was such as to require HHJ Saunders's dismissal of the substantive claim to be set aside - he will consider whether, putting aside the issue of procedural unfairness, the judge was entitled in law to reach the conclusions he did.
Mr Justice Lane goes on to conclude that HHJ Saunders was wrong to find that the claim fell to be substantively dismissed because it was not properly arguable that the claimant and the first defendant had an intention to create a legal relationship when they signed the agreement in May 2020, for reasons including that -
Turning to whether, if there had been an intention to create a legal relationship, the transaction with the claimant generated a tenancy or licence, Mr Justice Lane says that the claimant should have been given the opportunity to argue that he had been granted a secure tenancy because the circumstances of his agreement with the local authority materially differed from the accepted purpose in R (N) v Lewisham London Borough Council  UKSC 62 of providing 'overnight or day to day licence of accommodation pending the making of a decision under section 184 or on review or appeal'.
As a result, Mr Justice Lane finds that HHJ Saunders was wrong to find, in the alternative, that there was no properly arguable case to go to trial and, allowing the appeal, sets aside the part of the judge's order relating to the dismissal of the claimant's substantive claim.
30 March, 2021