High Court judge says housing authority has no power or discretion to accept request for late review of s.107D(3) notice

A local housing authority has 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 is made more than 21 days after the service of a notice pursuant to s.107D(3) Housing Act 1985, a High Court judge has ruled.

In Kalonga, R (On the Application Of) v The London Borough of Croydon [2021] EWHC 2174 (Admin) Mr Justice Cavanagh said this was, in particular, in light of the Court of Appeal's ruling in Harris v Hounslow LBC [2017] EWCA Civ 1476; [2018] PTSR 1349. The claimant has been granted permission to appeal.

The background to the case was that in May 2015, the claimant had been granted a five-year fixed-term secure tenancy (commonly known as a "flexible tenancy") by the defendant local housing authority.

Problems arose during the course of the tenancy, and, before the fixed term expired, Croydon brought a claim seeking possession of the property on the grounds of rent arrears and anti-social behaviour.

The claimant defended the possession proceedings on a number of grounds, including the contention that a landlord could only terminate a flexible tenancy before the end of the fixed term by forfeiture, and this was not open to the defendant council because the tenancy agreement did not contain a forfeiture clause.

The High Court judge and the Court of Appeal accepted the argument on behalf of the claimant (see the Court of Appeal judgment at [2021] EWCA Civ 77; [2021] 2 WLR 1069). Croydon has been given permission to appeal to the Supreme Court.

Mr Justice Cavanagh noted that, in the meantime, on 26 May 2020, the fixed term expired. It was common ground between the parties that section 107D of the Housing Act 1985 provides a mechanism by which the County Court can make a possession order after the expiry of the fixed term of a flexible tenancy, provided only that the landlord has followed the steps that are set out in section 107D. Like the other provisions which deal with flexible tenancies, section 107D was inserted into the 1985 Act by the Localism Act 2011.

The High Court judge said: “It is, in principle, much more straightforward for a landlord in a fixed-term flexible tenancy to obtain possession once the fixed term has expired, as compared to the position when the fixed term has not yet expired.”

He added that the requirements for a possession order after the expiry of a flexible tenancy were that:

(1) The fixed term has expired and no new tenancy has been granted (s107D(2));

(2) The landlord has given the tenant notice that he does not intend to grant a new fixed-term tenancy (s107D(3), "the s107D(3) notice"). The s107D(3) notice must give reasons and must inform the tenant of his or her right to request a review of that decision; and

(3) The landlord has given the tenant notice seeking possession under s107D(4).

“It will be seen, therefore, that the 1985 Act requires that two successive notices have to be given to the tenant of a flexible tenancy before the landlord can recover possession at the end of the tenancy. First, there must be a notice that the landlord does not intend to grant a new fixed-term tenancy, and then there must be a notice to the tenant seeking possession,” said Mr Justice Cavanagh.

Section 107E(1) provides that, following service of a s107D(3) notice, the tenant's request for a review must be made "before the end of the period of 21 days beginning with the date on which the notice under section 107D(3) is served".

Section 107D(6) provides for two circumstances in which the Court may refuse to grant a possession order, if a review has been requested by the tenant following service of the s107D(3) notice. These are if the review has not been carried out (s107D(6)(a)), and if the landlord's decision on the review is wrong in law (s107D(6)(b)).

In addition, the tenant may defend the possession proceedings in the County Court on conventional public law grounds, on the basis of an alleged breach of the Human Rights Act 1998, or on the basis of an alleged breach of the Equality Act 2010.

Mr Justice Cavanagh said the application for judicial review before him was concerned with the review procedure, and specifically, with whether and in what circumstances a tenant can apply for a review after the 21-day deadline set out in section 107E(1) of the 1985 Act has expired.

In this case:

• Croydon said that the s107D(3) notice was served on 15 April 2020, by being posted through the letterbox of the claimant's property (although this was in dispute between the parties). A copy was attached to the front door. On this basis, the deadline in section 107E(1) for a request for a review expired on 6 May 2020.
• The evidence filed on behalf of the claimant stated that the notice did not come to her attention until after the deadline had expired, because she had been absent from the property for some weeks. She only discovered the notice on 9 May 2020, upon her return to the property.
• On 11 May 2020, the claimant's solicitor wrote to the council by email, saying that the notice had only just come to her attention and that she would like to review the decision. The email asked for a 14-day extension in which to serve an application to review the decision.
• On 18 May 2020, the claimant's solicitor gave Croydon an explanation for why the claimant had not been in her property in the period between 15 April 2020 and 9 May 2020. She had been staying with her mother and her son in Durham.

The reasons given by the defendant council for deciding not to renew the claimant's flexible tenancy were that she had, throughout her tenancy, caused antisocial behaviour and had failed to keep to the conditions of an acceptable behaviour contract and, separately, an undertaking, and had been abusive to neighbours, including their children.

Croydon also claimed that there was reason to believe that the claimant had sublet her property in the past, that she had allowed the property to be severely damaged, that she had allowed visitors to take drugs in the property, had failed to engage with officers and other agencies, and had accumulated rent arrears. Finally, the make-up of the property had changed as the claimant's child had been removed from her.

In response, the claimant denied that she was the cause of antisocial behaviour and said that she he had been the victim of domestic violence and had been unable to control her partner's behaviour. In addition, the claimant said that a neighbour had been responsible for some of the antisocial behaviour. She said that she had not been notified of any recent complaints. The claimant denied that she had been abusive to neighbours and alleged that neighbours had been abusive to her.

She denied subletting the property, although she said that it had been occupied by squatters. Other persons had been responsible for the damage to her property, and Croydon had failed to keep it in good repair. She had no responsibility for any drug-taking that had taken place, and the rent arrears that had accumulated were caused by issues relating to housing benefit. The property was suitable for single occupation as it was a one-bedroom property and the claimant's son stayed there sometimes. The review request also drew attention to the claimant's learning difficulties, her serious health difficulties, and the impact that being made homeless would have upon her.

Croydon’s Head of Housing Needs and Assessments provided a response to the request for a review out of time on 20 May 2020, saying that since the request was made outside the 21-day period, the council had no power to accede to it. He also said that, even if he had a discretion to allow a review, he would not have done so.

The defendant gave the claimant written notice, under s107D(4), of its requirement for possession of the property on 22 May 2020. The claimant has not moved out and the defendant has not commenced proceedings for possession in the County Court.

Against that background, the claimant issued proceedings for judicial review of the defendant's decision that it had no power to extend time for the claimant to request a review under section 107E, and that, even if the defendant did have such power, it would not review.

Mrs Justice Thornton ordered that there should be a separate trial to deal with two preliminary matters. These were described in the parties' List of Issues as follows:

(1) Whether the local housing authority landlord can 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 notwithstanding that request being made more than 21 days after the purported service of a notice pursuant to s.107D(3) Housing Act 1985; and

(2) In the event that they can, the extent to which the underlying merits of the proposed review should in principle be considered when deciding whether to extend time for the carrying out of that review.

Issue (2) would only arise if the judge decided Issue (1) in the claimant's favour. The other grounds of challenge in the Claim Form, which were essentially that the council erred in law on public law grounds in its decision not to exercise the discretion to extend time, if one existed and/or that the defendant acted in breach of the Public Sector Equality Duty set out in the Equality Act 2010, section 149, in declining not to extend time, did not arise for consideration at this stage. They would only arise if Mr Justice Cavanagh decided Issue (1) in the claimant's favour. Consideration of these issues, if it became relevant, would take account of the judge’s decision on Issue (2).

On Issue (1) Mr Justice Cavanagh concluded: “For the reasons given...., and, in particular, in light of the Court of Appeal's ruling in Harris v Hounslow LBC, a local housing authority has 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 is made more than 21 days after the service of a notice pursuant to s.107D(3) Housing Act 1985.”

Although Issue (2) did not arise, the judge briefly expressed a view, having heard argument.

The judge said: “Issue (2) is, at its heart, very narrow. The real question is whether, as a matter of law, the underlying merits of the proposed review can ever be relevant when deciding whether to extend time for the carrying out of the review.

“If, contrary to my conclusion on Issue (1), a local housing authority has a discretion whether to conduct a review even if the application was out of time, it cannot be the case, in my view, as a matter of law, that the merits can never be relevant. It may well be the case that the underlying merits are of very limited relevance, and there may well be many cases in which they are of no relevance at all, but there may, on the other hand, be cases in which the underlying merits are either so strong, or so weak, as to be a matter that the local authority can properly take into account. This is not to say that local authorities must in effect carry out a full-scale review before they decide whether to extend time. The focus must be on the reasons for the delay. However, I do not think that it would be right to say that, a priori, there can never be circumstances in which the merits may be a relevant consideration.”

The judge said this issue had been specifically considered by the Court of Appeal in C v London Borough of Lewisham, and his conclusion was also borne out by the authorities, from other contexts, that were relied upon by counsel for Croydon.