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No legal right to occupy

This content applies to England & Wales

An explanation of a person who is considered as having no accommodation if s/he has no legal right to occupy accommodation .

Three types of legal right

A person is considered as having no accommodation if s/he has no legal right to occupy the accommodation.[1] The first step is therefore to establish whether the applicant has any legal right to occupy the property. There are three types of legal right specified in the Housing Act 1996:

  • a legal interest in the property or a court order which gives a right to occupy, for example an owner, tenant, or someone with a beneficial interest (financial stake), or someone with an order from the matrimonial/family courts granting a right to occupy (known as an occupation order)[2]
  • an express or implied licence to occupy, for example an applicant who is living with her/his family or friends and has not been asked to leave.[3] The Court of Appeal held that by making a joint homelessness application with her previously estranged husband, a wife had given him an implied licence to occupy the temporary accommodation she was provided with when fleeing domestic abuse[4]
  • a right to remain granted by statute or a rule of law.[5] A spouse or civil partner of a tenant or home owner has the right to remain in occupation of the matrimonial home, and s/he cannot be evicted or excluded from the home without a court order.[6] In a case where there was a joint tenancy, it was held that the right to occupy of the spouse/civil partner could not be terminated by the joint tenant who was not the spouse/civil partner.[7]

'Hypothetical' accommodation

An applicant is homeless where s/he might be offered accommodation that might satisfy the 'legal right to occupy' test - in other words, where the accommodation is hypothetical. This could be the case, for example, where a local connection referral has been accepted by an authority but no actual accommodation has been offered by that authority. The provision in the Housing Act that a person is homeless if s/he has no accommodation which s/he has a legal right to occupy must be implied to refer to an entitlement or licence to occupy actual accommodation in the present. If an applicant has no such accommodation at the time when the local authority makes its decision, then s/he is homeless.[8]

Protection from eviction

The Protection from Eviction Act 1977 protects most tenants and many licensees from being evicted without the landlord taking court proceedings.[9] The right to remain in occupation exists in the period between the coming into effect of a possession order and the actual eviction, since the provisions of the civil procedure rules restrict the right of the landlord to recover possession. Until the bailiffs enforce a possession order, an applicant is therefore threatened with homelessness rather than is actually homeless.[10]

Occupiers who are not covered by the Act will qualify as a homeless person as soon as their tenancy or licence has been ended. Those without protection include trespassers and most people who are staying with friends or relatives, as well as tenants or licensees who share accommodation with resident landlords.[11]

The Homelessness Code of Guidance emphasises that amongst those who should be accepted as a homeless person by local authorities are:[12]

  • those required to leave hostels or hospitals
  • former employees occupying premises as service occupiers.

Asked to leave by family or friends

Where applicants have been asked to leave by family or friends, the Code of Guidance advises authorities to check that permission to occupy has actually been withdrawn, and to distinguish between those cases where there are genuine reasons why the applicant cannot remain and those where there is scope to prevent or postpone homelessness.[13] The Code also acknowledges that living with family and friends can lead to friction and disputes, and that the promise of alternative housing may help to reduce tension and prevent homelessness. It also stresses that it may not be safe for some applicants to return home because of a risk of violence or abuse.[14]

The Code also states that in the case of 16- and 17-year-olds who have been asked to leave the parental home, it will generally be in their best interests to remain living in the family home unless it is unsafe because of violence or abuse. It suggests that young people often have a turbulent relationship with their families, which can lead to temporary disagreements but that this will not always amount to actual homelessness.[15]

The Code warns authorities to be aware of possible collusion where families may be taking advantage of the fact that 16- and 17-year-olds are in priority need. It states that where there is no genuine basis for homelessness and the arrangement has been fabricated between the parents and child, the applicant will be intentionally homeless.[16] However, advisers should be ready to point out that the Code also states that authorities must be satisfied that collusion exists and must not rely on hearsay or unfounded suspicions.[17]

Advisers should also be aware that authorities may well refer to the further recommendation in the Code that effecting a reconciliation with the family should be the first response in cases involving 16- and 17-year-olds.[18] It may be helpful to remind authorities that the Code also says that some relationships may have broken down irretrievably, and that it may not be safe or desirable for the young person to return home. In addition it says that any mediation or reconciliation will need careful brokering and help from social services should be sought. In any case, the process may take time and the Code points out that interim accommodation may well have to be provided in the meantime.[19]

Valid notice served

The Code states clearly that where a valid notice to quit or notice of proceedings for possession has been served, the local authority should consider whether it is reasonable for the applicant to continue to occupy the accommodation. All relevant factors should be considered and it is for the authority to decide the weight that should be attached to individual matters. It must also consider whether there is any risk of violence to the applicant and other matters such as:[20]

  • the general cost to the housing authority
  • the position of the tenant
  • the position of the landlord
  • whether the landlord will actually proceed with seeking possession
  • the burden on the courts of unnecessary court proceedings where there is no defence to possession.

Case law has also supported the above approach.[21] The Code says that authorities should not adopt a general policy of accepting or refusing people where a possession order has not yet been made. Where it is felt that it is reasonable for someone to remain in the property then this decision should be based on sound reasons that should be made clear to the applicant in writing.[22] The Code suggests that authorities may wish to try to prevent homelessness by negotiating with the landlord in line with the aims of their strategy to prevent homelessness.[23]

Assured shorthold tenancies

The Code gives clear guidance on how to deal with applicants asked to leave assured shorthold tenancies.[24] The Secretary of State considers it is unlikely to be reasonable for an applicant to remain in accommodation after the expiry of a notice of proceedings for possession where all of the following conditions are met:

  • the applicant is an assured shorthold tenant and has received proper valid notice on the grounds of it being a shorthold tenancy
  • the authority are satisfied that the landlord intends to go ahead with seeking possession
  • there is no defence to the possession claim.

The only exception to this might be where the authority is trying to persuade the landlord to withdraw the notice.

Failure to consider the Code's recommendations could give grounds for a challenge of the decision on a point of law. For further information see the section on Challenging local authority decisions.

Find details of local authorities on Gov.uk.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, similar rules made under Welsh legislation apply, but the references may be different. See Homelessness in Wales or visit Shelter Cymru for more information about the law in Wales.

[1] s.175(a)-(c) Housing Act 1996.

[2] s.175(1)(a) Housing Act 1996.

[3] s.175(1)(b) Housing Act 1996.

[4] Windsor and Maidenhead RBC v Hemans [2011] EWCA Civ 374.

[5] s.175(1)(c) Housing Act 1996.

[6] s.30 Family Law Act 1996.

[7] Abdullah v Westminster CC [2011] EWCA Civ 1171.

[8] Fletcher v Brent LBC [2006] EWCA Civ 960, [2007] HLR 12; Johnston v City of Westminster [2015] EWCA Civ 554.  

[9] s.1 Protection from Eviction Act 1977.

[10] R v Newham LBC ex parte Sacupima (2000) 33 HLR 1, QBD; R v Newham LBC ex parte Khan and Hussain (2000) 33 HLR 269, QBD.

[11] see s.3A Protection from Eviction Act 1977 for the list of unprotected occupiers.

[12] para 8.8 Homelessness Code of Guidance, July 2006.

[13] para 8.9 and 8.10 Homelessness Code of Guidance, July 2006.

[14] para 8.10 Homelessness Code of Guidance, July 2006.

[15] para 12.7 Homelessness Code of Guidance, July 2006.

[16] para 12.11 Homelessness Code of Guidance, July 2006.

[17] para 11.28 Homelessness Code of Guidance, July 2006.

[18] para 12.8 Homelessness Code of Guidance, July 2006.

[19] para 12.8 and 12.9 Homelessness Code of Guidance, July 2006.

[20] para 8.31 Homelessness Code of Guidance, July 2006.

[21] R v Croydon LBC ex parte Jarvis (1994) 26 HLR 194, QBD.

[22] para 8.32 Homelessness Code of Guidance, July 2006.

[23] para 8.30 Homelessness Code of Guidance, July 2006.

[24] para 8.32 Homelessness Code of Guidance, July 2006.

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