Westminster City Council v Clarke [1992] UKHL 11 (06 February 1992)

LORD MAYOR ETC. OF THE CITY OF WESTMINSTER

(APPELLANTS)

CLARKE (A.P.)
(RESPONDENT)

Lord Bridge of Harwich
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,

I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Templeman and, for the reasons
which he gives, I would allow the appeal and restore the trial
judge’s order.

LORD TEMPLEMAN

My Lords,

The appellants Westminster City Council, have provided
accommodation for the respondent, Mr. Clarke, and the question is
whether Mr. Clarke is a licensee or a secure tenant.

Part III of the Housing Act 1985 which begins at section 58
and ends with section 78 requires a local housing authority to
provide accommodation to certain persons who are homeless and in
need.

y section 58:

“(1) A person is homeless if he has no accommodation in
England, Wales or Scotland.

(2) A person shall be treated as having no accommodation if
there is no accommodation which he, together with any
other person who normally resides with him as a member of
his family . . .

(a) is entitled to occupy by virtue of an interest in it
or by virtue of an order of a court, or

(b) has an express or implied licence to occupy, . . .
or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.”

By section 59(1) certain homeless persons are classified as
having:

“… a priority need for accommodation –

1. 1. a pregnant woman . . . ;
  2. a person with whom dependent children reside . . . ;

(c) a person who is vulnerable as a result of old age, mental
illness or handicap or physical disability or other special
reason. . . . ;

(d) a person who is homeless or threatened with
homelessness as a result of an emergency such as flood, fire
or other disaster.”

By section 62:

“(1) If a person (an ‘applicant’) applies to a local housing
authority for accommodation, . . . and the authority have
reason to believe that he may be homeless or threatened
with homelessness, they shall make such inquiries as are
necessary to satisfy themselves as to whether he is homeless
or threatened with homelessness.

(2) If they are so satisfied, they shall make any further
inquiries necessary to satisfy themselves as to –

(a) whether he has a priority need, and

(b) whether he became homeless or threatened with
homelessness intentionally;

and if they think fit they may also make inquiries as to
whether he has a local connection with the district of
another local housing authority . . . . “

Section 63 makes provision for the temporary
accommodation of some applicants where the local authority is
making the necessary inquiries:

“(1) If the local housing authority have reason to believe
that an applicant may be homeless and have a priority need,
they shall secure that accommodation is made available for
his occupation pending a decision as a result of their
inquiries under section 62.”

On completing their inquiries under section 62 the local
housing authority must decide whether the applicant is homeless, if
so, whether he has a priority need, and if so, whether he became

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homeless intentionally and whether they propose to refer him to
another local authority on grounds of local connection. By section
64 these decisions must be notified to the applicant supported by
reasons. By section 65 where a local authority are satisfied that
the applicant is homeless and:

“(2) . . . they are satisfied that he has a priority need and
are not satisfied that he became homeless intentionally, they
shall, unless they notify another local housing authority in
accordance with section 67 (referral of application on
grounds of local connection), secure that accommodation
becomes available for his occupation.”

Section 65(3) imposes on a local housing authority a duty to
house temporarily an applicant found to have a priority need but
to have become homeless intentionally and also a duty to house an
applicant sending a determination as to whether the conditions for
the referral of the application to another local housing authority
are satisfied.

The appellant Council are a local housing authority. The
respondent, Mr. Clarke, satisfied the council that he was homeless,
and that he had a priority need as a vulnerable person under
Section 59 (1) (c) of the Act. The council were not satisfied that
Mr. Clarke had become homeless intentionally and they did not
refer Mr. Clarke’s application for accommodation to another local
housing authority. The council accepted towards Mr. Clarke the
duty imposed on them by section 65(2) to “secure that
accommodation becomes available for his occupation.”

The Council own a terrace of houses 131-137 Cambridge
Street. The premises are used by the Council as a hostel. There
are 31 single rooms each with a bed and limited cooking facilities.
There was originally a common room which has since been
vandalised. The occupiers of the hostel are homeless single men,
including men with personality disorders or physical disabilities,
sometimes eccentric, sometimes frail, sometimes evicted from
domestic accommodation or discharged from hospital or from
prison. Experience has shown the possibility that the hostel may
have to cope with an occupier who is suicidal or alcoholic or
addicted to drugs. There is a warden supported by a resettlement
team of social workers. The hope is that after a period of
rehabilitation and supervision in the hostel, each occupier will be
able to move on to permanent accommodation where he will be
independent and look after himself. In the case of Mr. Clarke,
the hostel was designed to be a halfway house for rehabilitation
and treatment en route to an independent home. In these
circumstances Mr. Clarke was provided with accommodation at the
hostel pursuant to an agreement entitled “Licence to Occupy”
dated 5 February 1987, addressed to Mr. Clarke and, so far as
material, in the following terms:-

“Westminster City Council by this licence which is personal
to you will allow you to occupy in common with the council
and any other persons to whom the same right is granted
accommodation at the single persons hostel at 131-137,
Cambridge Street SW1 in the City of Westminster. The
terms of the licence under which you agree to occupy the
accommodation are set out below and the current conditions
of occupation are set out hereafter . . .

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1. 1. This licence does not give you and is not intended
    to give you any of the rights or to impose upon you
    any of the obligations of a tenant nor ‘does it give
    you the right of exclusive occupation of any
    particular accommodation or room which may be
    allotted to you or which you may be allowed to use
    nor does it create the relationship of landlord and
    tenant. The accommodation allotted to you may be
    changed from time to time without notice as the
    council directs and you may be required to share such
    accommodation with any other person as required by
    the council. Any furniture provided or services of
    whatever nature may be changed or withdrawn at any
    time.
  2. The licence permits you only and not any person
    invited by you to occupy accommodation in common
    with the council whose representative may enter the
    accommodation at any time. You may use the
    accommodation as living accommodation only and not
    for any other purpose.
  3. The council may terminate the licence at any time,
    by giving you not less than 7 days notice in writing
    and you must leave at the end of that time except
    that if you fail to pay the charges hereinafter
    provided or if you break the terms of the licence or
    the conditions of occupation in any other way the
    licence may be terminated forthwith ….

Undertaking by licensees

I have read and I agree to observe the above licence
and the conditions of occupation set out overleaf.

I agree to pay regularly in advance on Monday of
each week the charge of £16.79 for the
accommodation and for the services provided. I
understand that this charge is assessed on my present
financial circumstances and that the charge will be
amended if the council’s scale of charges is amended
or if my circumstances alter.

I understand that failure to pay the weekly charge or
to observe the terms of the licence or the conditions
of occupation may result in the council requiring me
to leave the accommodation.

Conditions of occupation

In the interest of the council and of other residents
certain conditions have to be made and these
conditions may be changed from time to time as the
council considers necessary. You are asked to co-
operate with the council’s staff and in particular you
are required:

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(1) Not to invite any person to share the
accommodation with you nor allow any person to stay
overnight.

1. 1. To keep the accommodation allocated to you in a
    clean condition and to take care of all furniture, bed
    linen or other articles provided.
  2. To clean and leave tidy on each occasion after
    use by you the bathroom and toilet accommodation.
  3. To pay for any damage caused ….
  4. To be in your accommodation by not later than 11
    p.m. and to ensure that visitors leave by not later
    than this time ….

(6) To do nothing which may cause nuisance,
annoyance or discomfort to other residents and to be
responsible for the behaviour of your visitors . . .

(10) To comply with the directions of the council’s
warden or other staff in charge of the hostel.”

Mr. Clarke was allocated Room E on the first floor of 131
Cambridge Street. On 13 April 1988 the Council gave Mr. Clarke
notice terminating his licence. The notice was issued because of
complaints by residents and others that Mr. Clarke had caused
nuisance and annoyance and noise. On 13 November 1988 the
Council issued the summons in these proceedings for possession.
Mr. Clarke, by his defence, claimed to be a “secure tenant”
entitled to the protection of Part IV of the Act of 1985.
Subsequently Mr. Clarke smashed up Room E and threw the
Council’s furniture and his clothes into the street. He was taken
away by the Police and subsequently returned. The incident is an
illustration of the need for the Council to be able to evict an
occupier at short notice. The trial judge, Mr. Recorder Langan
Q.C., made an order for possession in favour of the Council but
his decision was reversed by the Court of Appeal (Dillon, Balcombe
and Ralph Gibson L.JJ.) who held that Mr. Clarke was a secure
tenant of Room E and dismissed the Council’s claim for possession.
The Council now appeal.

Part IV of the Act of 1985 entitled “Secure tenancies and
rights of secure tenants” begins with section 79 and ends with
section 117. By section 79:

“(1) A Tenancy under which a dwelling-house is let as a
separate dwelling is a secure tenancy at any time when the
conditions described in sections 80 and 81 as the landlord
condition and the tenant condition are satisfied.

(2) Subsection (1) has effect subject to –

(a) the exceptions in Schedule 1 (tenancies which are
not secure tenancies), . . .

(3) The provisions of this Part apply in relation to a licence
to occupy a dwelling-house (whether or not granted for a
consideration) as they apply in relation to a tenancy.”

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The landlord condition prescribed by section 80 is that the
interest of the landlord belongs to certain authorities or bodies
including a local authority. In the present case, therefore, the
landlord condition is satisfied. The tenant condition prescribed by
section 81 is:

“… that the tenant is an individual and occupies the
dwelling-house as his only or principal home; …”

Mr. Clarke occupies room E as his only home. If room E is
a separate dwelling-house occupied under a tenancy or licence by
Mr. Clarke as his only home, then Mr. Clarke is a secure tenant.
The exceptions set forth in Schedule 1 do not apply.

If Mr. Clarke is a secure tenant the Council cannot obtain
possession unless they first serve a notice prescribed by regulations
made under Section 83 of the Act of 1985 and institute
proceedings within the time limit prescribed by that section. By
Section 84, as applied to the present case, the Court will then
only be able to make an order for possession if Mr. Clarke has
been guilty of conduct which is a nuisance or annoyance to
neighbours and if the Court considers that it is reasonable to make
the order. If therefore Mr. Clarke is a secure tenant, the Council-
may not be able to obtain possession of Room E and cannot
speedily obtain possession of any of the hostel rooms. If Mr.
Clarke is not a secure tenant then he has no defence to the
Council’s present action for possession.

Section 112 of the Act of 1985 provides that for the
purposes of Part IV a dwelling-house may be a house or part of a
house. Under the Rent Acts, in order to create a letting of part
of a house as a separate dwelling there must be an agreement by
which the occupier has exclusive possession of essential living
rooms of a separate dwelling house. Essential living rooms provide
the necessary facilities for living, sleeping and cooking. Thus a
bed-sitting room with cooking facilities may be a separate dwelling
house even though bathroom and lavatory facilities might be
elsewhere and shared with other people; see Neale v Del Soto
[1945] K.B. 144, Cole v Harris [1945] K.B. 474 and Goodrich v
Paisner [1957] A.C. 65 at 79. Room E provides facilities for
living, sleeping and cooking. Room E is occupied by Mr. Clarke as
his only home. Section 79 (1) of the Act of 1985 employs the
language of the Rent Acts. Accordingly Mr. Clarke is a secure
tenant of Room E if he enjoys exclusive possession of Room E. In
order to determine whether Mr. Clarke enjoys exclusive possession
of Room E, the rights conferred on Mr. Clarke and the rights
reserved to the Council by the licence to occupy must be
considered and evaluated.

Mr. Sedley, who appeared on behalf of Mr. Clarke,
submitted that Mr. Clarke was a secure tenant even if he was not
granted exclusive possession of Room E. Section 79 (3), he said,
applies to any licence to occupy a dwelling house. This submission
would confer security of tenure on a lodger and on a variety of
licensees and is contrary to the language of Section 79 (3) which
applies the provisions of Part IV of the Act to a licence “as they
apply in relation to a tenancy.” Part IV only applies to a tenancy
of a dwelling house let as a separate dwelling namely with

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exclusive possession. Part IV therefore applies to a licence which
has the same characteristics. A tenant or licensee can only claim
to be a secure tenant if he has been granted exclusive possession
of a separate dwelling house.

The predecessor of Section 79 (3) of the Act of 1985 was
Section 48 of the Housing Act 1980 which provided that where
under a licence “the circumstances are such that, if the licence
were a tenancy, it would be a secure tenancy then . . . this Part
of this Act applies to the licence as it applies to a secure
tenancy.” The result of Section 48 of the Act of 1980 was that,
whether the occupier was a tenant or a licensee, he must be
granted exclusive possession in order to become a secure tenant.
The Court of Appeal so held in Family Housing Association v Miah
[1982] 5 H.L.R. 94 and Royal Borough of Kensington and Chelsea v
Hayden [1984] 17 H.L.R. 114.

The Rent Acts do not apply to a licence and Section 48 of
the Act of 1980 was enacted at the time when some private
landlords were granting exclusive possession of residential
accommodation at a rent but in the form of a licence. Section 48
of the Act of 1980 made clear that such a licence created a
secure tenancy. Subsequently in Street v Mountford [1985] A.C.
809 this House reaffirmed the general principle that a grant of
exclusive possession of residential accommodation at a rent created
a tenancy protected by the Rent Acts notwithstanding that the
parties intended to grant and expressed themselves as having
granted a licence and not a tenancy. The decision of this House
in Street v Mountford [1985] AC 809 was published on 2 May
1985. The Act of 1985 received the Royal Assent on 30 October
1985. In Family Housing Association v Jones [1990] 1 W.L.R. 779
Balcombe L.J. held at p.790 that in these circumstances Section 79
(3) of the Act of 1985 must have been intended to alter the law
and to confer the status of a secure tenant on a licensee who did
not enjoy exclusive possession. The Court of Appeal in the instant
case felt bound to follow its decision in Family Housing
Association v Jones [1990] 1 W.L.R. 779 though Dillon L.J. doubted
the soundness of that decision so far as it construed Section 79 (3)
and Balcombe L.J. to some extent resiled from his earlier views.
In my opinion Section 79 (3) did not alter the law. The Act of
1985 was an enactment which consolidated various statutes
including the Act of 1980 and gave effect to certain
recommendations of the Law Commission. Those recommendations
did not relate to Section 48 of the Act of 1980. Therefore
Section 79 (3) was a consolidating measure and in redrafting
Section 48 of the Act of 1980 in the form of Section 79 (3) of
the Act of 1985 the draftsman had no power to alter the law. In
my opinion, on the true construction of Section 48 of the Act of
1980 and on the true construction of Section 79 (3) of the Act of
1985, whether those sections be considered together or separately
a licence can only create a secure tenancy if it confers exclusive
possession of a dwelling house.

So the question is whether the “licence to occupy” followed
by the allocation of Room E and the payment of rent conferred on
Mr. Clarke exclusive possession of Room E. In Street v Mountford
[1985] A.C. S09 the landlord agreed to grant a licence of
residential accommodation for a weekly fee. The agreement was
designated a licence and contained a declaration that the licence

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did not create and was not intended to create a tenancy protected
by the Rent Acts. Nevertheless the licensee enjoyed exclusive
possession; a third party could not lawfully interfere with that
possession and the landlord only reserved limited powers to enter to
protect his own interests as a landlord. The licence created a
tenancy.

In A.G. Securities v Vaughan [1990] 1 AC 417 four
separate bedrooms in a house were occupied by four separate
individuals under four separate and independent agreements, all
four occupiers being entitled to share the house in common. But
they did not enjoy exclusive possession of the house jointly. Each
had exclusive possession of one bedroom but shared possession of
the other parts of the house. The bedroom was not a dwelling
house and the house was shared. In these circumstances each
occupier was a licensee. In Antoniades v Villiers also reported at
[1990] 1 AC 417 a one bedroomed flat was occupied by a couple
on the terms of licences which expressly reserved to the owner
the right to share and permit other persons to share the flat. The
reservation, which was not and could not reasonably be acted upon,
was a pretence designed to disguise the fact that the couple were
granted exclusive possession at a rent and were therefore tenants.
In the present case no pretence is involved. The question is
whether upon the true construction of the licence to occupy and in
the circumstances in which Mr. Clarke was allowed to occupy
Room E, there was a grant by the Council to Mr. Clarke of
exclusive possession of Room E.

From the point of view of the Council the grant of
exclusive possession would be inconsistent with the purposes for
which the Council provided the accommodation at Cambridge
Street. It was in the interests of Mr. Clarke and each of the
occupiers of the hostel that the Council should retain possession of
each room. If one room became uninhabitable another room could
be shared between two occupiers. If one room became unsuitable
for an occupier he could be moved elsewhere. If the occupier of
one room became a nuisance he could be compelled to move to
another room where his actions might be less troublesome to his
neighbours. If the occupier of a room had exclusive possession he
could prevent the Council from entering the room save for the
purpose of protecting the Council’s interests and not for the
purpose of supervising and controlling the conduct of the occupier
in his interests. If the occupier of a room had exclusive
possession he couid not be obliged to comply with the terms of
the conditions of occupation. Mr. Clarke could not, for example,
be obliged to comply with the directions of the warden or to
exclude visitors or to comply with any of the other conditions of
occupation which are designed to help Mr. Clarke and the other
occupiers of the hostel and to enable the hostel to be conducted
in an efficient and harmonious manner. The only remedy of the
Council for breaches of the conditions of occupation would be the
lengthy and uncertain procedure required by the Act of 1985 to be
operated for the purpose of obtaining possession from a secure
tenant. In the circumstances of the present case I consider that
the Council legitimately and effectively retained for themselves
possession of Room E and that Mr. Clarke was only a licensee
with rights corresponding to the rights of a lodger. In reaching
this conclusion I take into account the object of the Council,
namely the provision of temporary accommodation for vulnerable

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homeless persons, the necessity for the Council to retain possession
of all the rooms in order to make and administer arrangements for
the suitable accommodation of all the occupiers and the need for
the Council to retain possession of every room not only in the
interests of the Council as the owners of the terrace but also for
the purpose of providing for the occupier supervision and
assistance. For many obvious reasons it was highly undesirable for
the Council to grant to any occupier of a room exclusive
possession which obstructed the use by the Council of all the
rooms of the hostel in the interests of every occupier. By the
terms of the licence to occupy Mr. Clarke was not entitled to any
particular room, he could be required to share with any other
person as required by the Council and he was only entitled to
“occupy accommodation in common with the Council whose
representative may enter the accommodation at any time.” It is
accepted that these provisions of the licence to occupy were
inserted to enable the Council to discharge its responsibilities to
the vulnerable persons accommodated at the Cambridge Street
terrace and were not inserted for the purposes of enabling the
Council to avoid the creation of a secure tenancy. The conditions
of occupancy support the view that Mr. Clarke was not in
exclusive occupation of Room E. He was expressly limited in his
enjoyment of any accommodation provided for him. He was
forbidden to entertain visitors without the approval of the Council
staff and was bound to comply with the Council’s warden or other
staff in charge of the hostel. These limitations confirmed that
the Council retained possession of all the rooms of the hostel in
order to supervise and control the activities of the occupiers,
including Mr. Clarke. Although Mr. Clarke physically occupied
Room E he did not enjoy possession exclusively of the Council.

This is a very special case which depends on the peculiar
nature of the hostel maintained by the Council, the use of the
hostel by the Council, the totality immediacy and objectives of the
powers exerciseable by the Council and the restrictions imposed
on Mr. Clarke. The decision in this case will not allow a landlord
private or public to free himself from the Rent Acts or from the
restrictions of a secure tenancy merely by adopting or adapting
the language of the licence to occupy. The provisions of the
licence to occupy and the circumstance in which that licence was
granted and continued lead to the conclusion that Mr. Clarke has
never enjoyed that exclusive possession which he claims. I would
therefore allow the appeal and restore the Order for possession
made by the trial judge.

LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech of
my noble and learned friend. Lord Templeman and, for the reasons
which he gives. I, too, would allow the appeal and restore the trial
judge’s order.

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LORD ACKNER

My Lords,

I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Templeman and, for the reasons
which he gives, I, too, would allow the appeal and restore the trial
judge’s order.

LORD LOWRY

My Lords,

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