ZH and CN, R (on the applications of) v London Boroughs of Newham & Lewisham

Factual and Procedural Background

Plaintiff CN and Plaintiff ZH, both minors acting through litigation friends, challenged steps taken by two local housing authorities (collectively, “Defendant Authorities”) after their families were placed in short-term interim accommodation under section 188 of the Housing Act 1996. Each family occupied the accommodation under a written licence that allowed the authority to require them to move, often at a day’s notice, while the authority investigated whether any longer-term housing duty was owed.

When those investigations ended with findings that the families were intentionally homeless, the Defendant Authorities served notices requiring them to leave. No court proceedings for possession were begun. Instead, the families issued judicial-review claims alleging (i) breach of the Protection from Eviction Act 1977 (“PEA 1977”) and (ii) breach of Article 8 of the European Convention on Human Rights (“ECHR”). The Court of Appeal dismissed both claims, but granted interim injunctions preserving occupation pending further appeal. The present decision is the final appeal.

Legal Issues Presented

1. Whether premises provided under section 188 of the Housing Act 1996 are “occupied as a dwelling under a licence” so that, by virtue of section 3 of PEA 1977, a local housing authority must first obtain a court order before recovering possession.
2. Whether a public authority that ends such interim accommodation without a court order violates the occupier’s right to respect for home under Article 8 ECHR.

Arguments of the Parties

Plaintiffs’ Arguments

• PEA 1977 applies to all residential tenancies and licences unless expressly excluded in section 3A; interim licences were therefore protected.
• The families plainly dwelled in the properties; “dwelling” bears its ordinary, generous meaning adopted in housing benefit legislation and other contexts.
• Failure to obtain a possession order before eviction rendered the eviction unlawful and, being carried out by public authorities, also disproportionate under Article 8 ECHR.

Defendant Authorities’ Arguments

• Section 188 accommodation is inherently short term; the statutory purpose is investigative, not to provide a settled home. Accordingly the premises are not licensed “as a dwelling.”
• Section 3A PEA 1977 lists a range of temporary or emergency lettings excluded from protection; although section 188 licences are not listed, the concept of “dwelling” was never intended to include such transitory arrangements.
• Article 8 is satisfied because the statutory scheme already gives multiple procedural safeguards: written reasons, a section 202 review, an appeal on a point of law, and potential judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority on Issue 1 (Lord Hodge, with three concurring Justices):

• Section 188 licences are expressly designed to be short-term, transferable at short notice, and provided only while inquiries are made. Such licences are not intended to allow the occupier to establish a settled home; therefore the premises are not licensed “as a dwelling.”
• Requiring a court order would frustrate the statutory scheme: scarce emergency accommodation would be tied up for months during possession proceedings, hampering the authority’s duties to other applicants.
• Section 3A lists many temporary categories expressly excluded from PEA 1977 “for the avoidance of doubt.” Their presence does not expand the meaning of “dwelling” to cover section 188 licences.
• Long-standing practice, government guidance, and two Court of Appeal authorities had treated interim accommodation as outside PEA 1977; Parliament had not intervened.

Majority on Issue 2:

• Article 8 is engaged but any interference is “in accordance with law,” pursues legitimate aims (allocating scarce housing resources, landlord property rights) and is proportionate.
• Occupiers have adequate procedural safeguards: written reasons; statutory review (section 202), county-court appeal (section 204) with power to consider proportionality, possible judicial review, and—where children are involved—duties under the Children Act 1989.
• Requiring an additional possession action would add cost and delay without meaningful benefit.

Dissent (Judge [Last Name] and Judge [Last Name]):

• “Dwelling” bears its ordinary generous meaning; a person with no other home does dwell in interim accommodation, even if precarious.
• Section 3A exclusions indicate Parliament knew how to carve out temporary housing and did not do so for section 188 licences.
• Consequently PEA 1977 applies and a possession order is required; Article 8 issue therefore unnecessary.

Holding and Implications

Final Decision: Appeals DISMISSED.

By a majority, the Supreme Court held that:

• Licences granted under section 188 of the Housing Act 1996 are not licences “as a dwelling” within the meaning of PEA 1977; local housing authorities may therefore terminate such licences without first obtaining a court order.
• Eviction in these circumstances does not breach Article 8 ECHR because the statutory review and appeal structure offers sufficient procedural protection.

Implications: Local authorities across The State may continue the long-established practice of recovering interim accommodation administratively, which eases pressure on temporary housing stock. No new precedent limiting authorities’ powers was set; conversely, the decision clarifies that PEA 1977 protections do not extend to short-term homelessness licences.