- Administrative Court
- 4 August 2021
- Cavanagh J
- [2021] EWHC 2174 (Admin)
- [2021] PLSCS 141
Landlord and tenant – Flexible tenancy – Possession – Defendant landlord serving notice on claimant tenant of intention to seek possession on expiry of flexible fixed-term tenancy – Claimant requesting review outside statutory time limit – Defendant refusing review – Whether defendant having power to carry out review where request out of time – Judgment in favour of defendant
In May 2015, the claimant was granted a five-year fixed-term secure flexible tenancy by the defendant local housing authority. Before the tenancy came to an end, the defendant served notices on the claimant pursuant to section 107D(3) of the Housing Act 1985 which provided a mechanism by which the county court could make a possession order after the expiry of the fixed term of a flexible tenancy, provided that the landlord followed the steps set out in section 107D.
The claimant requested a review of the defendant’s decision to serve the notices informing her that it did not propose to grant a new tenancy upon expiry of her flexible tenancy. That review request was made outside the 21-day deadline set out in section 107E(1) of the 1985 Act. The defendant refused the request on the basis it had no power to extend time for the claimant to request a review under section 107E and that, even if it did, it would not carry out a review on the facts.
The claimant was granted permission to bring a claim for judicial review. A preliminary issue arose whether the defendant could accept a request for a review of its proposal not to grant another tenancy notwithstanding that the request being made more than 21 days after the purported service of a notice pursuant to section 107D(3).
The claimant contended that the defendant had power to carry out a review where the request was out of time, pursuant to its general housing management powers, as set out in section 21 of the 1985 Act.
Held: Judgment was given in favour of the defendant.
(1) It was common ground that the defendant was a creature of statute and so could only act in so far as it was permitted by statute to do so. Otherwise, it would be acting ultra vires and unlawfully. It followed that, if the claimant was right that the defendant had power to conduct a review, even if the request was not made within the 21-day period laid down in section 107E(1), there had to be another statutory provision which gave the landlord the power to do so.
Section 21 was in Part II of the 1985 Act headed: “Provision of Housing Accommodation” and was concerned with the operational management of housing stock. If there were to be a general power for a local housing authority to conduct a review even if an application had not been duly made to it, by being made within the 21-day period, such a general power could be expected to be derived from section 1(1) of the Localism Act 2011, which provided that “A local authority has power to do anything that individuals generally may do”. However, it was common ground between the parties that section 1(1) did not provide the defendant with a power to conduct a review under section 107E if the time limit for applying had not been met.
The power to conduct a review of a decision not to review a flexible tenancy was conferred by the Localism Act 2011, which amended the 1985 Act. It followed that the defendant could not use section 1 of the 2011 Act to conduct a review in circumstances that were not provided for by section 107E of the 1985 Act. However, it would be surprising if such a power were to be conferred by section 21(1) of the 1985 Act, a provision which ostensibly dealt with something else entirely, and not by the general permissive power in section 1 of the 2011 Act.
(2) In the context of a flexible tenancy, section 107E(2) led to the conclusion that the obligation or power to conduct a review only arose if the request for a review was duly made, which meant that it was made in time. Failing that, there was no power to review. Furthermore, there was a strong contextual indication that the time limit for applications for review was intended to be strict. The idea of the flexible tenancy regime was that it should be simpler and more straightforward for local housing authorities to obtain possession from secure tenants at the end of the tenancy than was previously the case. The procedure for evicting unsatisfactory tenants was streamlined. In practice, there would have to be some grounds for the decision not to renew the tenancy, because otherwise the decision might be challengeable in the county court on public law principles. Often, as in the present case, those grounds would be connected to allegations of anti-social behaviour. In those circumstances, there were contextual reasons to infer that parliament deliberately chose to impose a tight deadline for those who wished for a review of a decision not to renew their flexible tenancy: Harris v Hounslow London Borough Council [2017] EWCA Civ 1476; [2018] PTSR 1349 followed.
(3) It was also significant that some of the statutory review provisions in the Housing Acts 1985 and 1996 specifically provided that the deadline for applying for a review might be extended by “such longer period as the …. landlord may allow in writing”, and some did not. Among those that did were the review in section 107B, where a flexible tenant wished to challenge the proposed length of the tenancy. That suggested that parliament had made a positive choice in certain contexts that reviews might proceed even if the applicant had missed the deadline, and not in others. It would run counter to the intention of parliament to permit a local authority to waive a deadline when the statute did not permit such a waiver. Further, if the claimant was correct, there would be no need to include any express discretion to conduct the review in the absence of an in-time application, because such a discretion would be imported by implication.
(4) Accordingly, a local housing authority had no power or discretion to accept a request for a review of their proposal not to grant another tenancy on the expiry of the fixed-term of the tenant’s existing flexible tenancy, if that request was made more than 21 days after the service of a notice pursuant to section 107D(3) of the 1985 Act.
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors) appeared for the claimant; Riccardo Calzavara (instructed by Croydon Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
