This case revolves around the question of whether a review under s129 Housing Act 1996 does or doesn’t uphold the original decision to serve a notice. In particular, when the decision may state that the service of the notice is upheld but then sets out conditions as to the circumstances in which the LL (LA or PRP) will not issue the possession proceedings. This seems to be a common occurrence. The trouble comes, as in this case, when the LL then decides that those conditions are not being or have not been met and issues the possession proceedings anyway. The essential question being; can they do so without issuing a further s128 notice?
The provisions in question are s128 and s129 of the Housing Act 1996, the relevant parts of which were set out at the start of the case as follows:
(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord’s decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
(6) The notice shall inform the tenant of his right to request a review of the landlord’s decision to seek an order for possession and of the time within which such a request must be made.
(1) A request for review of the landlord’s decision to seek an order for possession of a dwelling house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.
(2) On a request being duly made to it, the landlord shall review its decision.
(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section. Nothing in the following provisions affects the generality of this power.
(5) The landlord shall notify the person concerned of the decision on the review.
If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.
(6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun.”
In this case KS had an introductory tenancy of a flat in Camden which commenced on 4 January 2010. The LA was LL. They received noise complaints from the outset of her tenancy and served a s128 notice. KS sought a review under s129. She was apologetic and said that the source of much of the noise had been her former partner who had left and the noise would not continue. The review panel upheld the service of the notice as being correct and justifiable. It also stated however that “we do not believe that an application to the court for possession of the property should be made at this time”. The decision letter then went on to make recommendations to the relevant housing officers stating that “we consider that the following alternatives to possession proceedings should be implemented”. There were three recommendations: The first was to clarify the circumstances of KS’ former partner having left the flat as he appears to have been a key element in the complaints made, the second was that an acceptable behaviour contract would be put in place and the third was that support from the local youth intervention support panel (YISP) would be provided to assist KS. Then within the ten days following the review decision, the LL received complaints which suggested that the noise nuisance had in fact escalated. The housing officer wrote about this to KS and she was invited to an appointment to discuss the new complaints before the LL issued proceedings but she did not attend.
The LL then issued possession proceedings based upon the original s128 notice. KS defended on various grounds the most pertinent here being that she disputed that the statutory requirements had been met because the Review Panel had decided not to pursue proceedings for possession and had not thereafter served a fresh s128 notice.
The claim was dealt with at Central London County Court where HHJ Bailey dismissed Camden’s claim. The decision was expressed succinctly in this way:
“The sole question for the Court is this: does the review decision notice dated 22 March 2010 confirm the decision to seek an order for possession or does it do otherwise? Quite plainly, in my judgment, it does otherwise. As soon as the decision notice does not confirm the decision to seek an order for possession it is not then open to Camden to rely on the section 128 notice previously served in order to seek possession.”
It was observed that all Camden needed to do was serve a fresh s128 notice. Camden appealed.
Kay LJ gives the leading judgment which is followed by some technical clarification by Etherton LJ. In the judgment Kay LJ finds that the central question of the case is whether the decision of the Review Panel amounted to confirmation of the original decision to seek an order for possession or not. To assist with that decision the Court examines two earlier cases on this point.
The first is Cardiff City Council v Stone  EWCA Civ 298. That was a case where s128 notice had been served for rent arrears. A review was held and the decision notified in the following terms:
“I would confirm that a decision to terminate your tenancy by serving you with a notice is upheld. However, the panel decided to suspend action at this stage on condition that the weekly collectable rent and £3 is paid each week, without fail.”
In other words, the original notice is upheld but will not be acted upon if the tenant meets conditions set out in the review decision. The arrears were not paid off and the LL issued possession proceedings. The District Judge made an order for possession which was confirmed on appeal by the Circuit Judge. The Court of Appeal further dismissed the tenant’s appeal. That appeal was brought on a slightly different point to Stafford; that the review decision was invalid because it had not given reasons required by s129(5). Arden LJ disagreed, finding that the letter sent to the tenant had been unequivocal that the notice was being upheld for her failure to pay her rent regularly and that the reasons were made clear in the documentation sent to the tenant. She also goes on to comment at paragraph 38 of the judgment that it would be wholly undesirable to create conditions which meant that LLs would have to serve numerous s128 notices to ensure proceedings for possession of introductory tenancies would succeed when this was counter to the aim of the introductory tenancy regime and would create unwelcome formalities which LLs would have to slavishly comply with. Arden LJ commented that this would be likely to discourage LLs from extending latitude to introductory tenants who they felt should have another chance to retain their tenancies. So in the Stone case the notice was found to have been upheld on review, even though the review decision set out conditions which, if they were met by the tenant, would mean that proceedings would not be issued. When those conditions were not met, the LL was able to rely upon the original s128 notice. Therefore it is open to a LL not to issue proceedings upon a s128 notice being upheld if it wants to wait and see if it is still necessary to seek possession, which it may not be if the tenant has addressed the original reason for service of the notice. So the LL has a discretion as to whether to proceed further.
The other case the Court in Stafford considered was Forbes v Lambeth London Borough Council EWHC 222 (QB). There the tenant sought a review of the s128 notice and the review decision letter was entitled “DECISION NOT TO TERMINATE YOUR INTRODUCTORY TENANCY”. It stated:
“The Council has decided not to proceed with terminating your tenancy but will be monitoring your tenancy for a period of twelve months and then will review the situation and advise you. You will continue as an introductory tenant during this period.”
In that case it was found that, unlike in Stone, the original decision was not being upheld at all and in fact the natural meaning of the words of review decision letter was that the decision to terminate the tenancy had been reversed, albeit with a warning about future conduct. That interpretation of the review decision was further supported by the lack of reasons in the decision letter which would be required by s129(5) if it had been upholding the notice under s128. So in Forbes it was decided that the words of the review decision letter were not clear enough to be interpreted as upholding the s128 notice on review and therefore the LL could not rely on the original s128 notice.
At first blush then, Stafford seems to be consistent with Stone in that the review decision upheld the original notice but placed conditions upon the tenant for the matter not to be progressed to issuing possession proceedings. In the event that the tenant did not comply with those conditions, you might expect that the LL could have relied upon the original s128 notice. Not so.
The Court decided that despite the words of the review decision letter to the contrary, the review decision had not in fact upheld the original decision to seek possession. It was highly significant that the letter had set out “alternatives to possession proceedings” i.e. the clarification with the police about KS’ former partner, the acceptable behaviour contract and the involvement of YISP. While it was commented that these measures may have shown a generous approach by the LL, they also effectively created the situation in which if KS did not comply, they would not be able to rely on the original s128 but would have to begin again. Because the review decision letter was essentially equivocal (i.e. upholding the notice but offering terms on which the tenant could avoid further proceedings), the Court found that it fell short a confirmation of the original notice. The decision of the Circuit Judge that it was not open to the LL to rely on the original s128 notice was therefore upheld.
Lord Justice Etherton (para 24 on) then goes on to add some comments on whether a review decision that upholds the original notice but sets out conditions can really amount to the kind of clear decision making required by s128(2). His answer is effectively that it cannot. He also rejects the idea that a s128 notice itself can be expressed conditionally. At paragraph 26 he states:
“I do not accept that a notice under section 128 can be expressed conditionally, that is to say as a notice that the court will be asked to make an order for possession but only if the tenant does not comply with certain conditions; or, to the same effect, as a notice that the court will be asked to make an order for possession but steps will not be taken to achieve that result so long as the introductory tenant complies with certain conditions. Equally, I do not accept that a review decision under section 129 which is so expressed is a confirmation of the decision notified under section 128.”
He does not see the inability to add conditions as placing a straitjacket upon LLs in its dealings with its tenants because the LL has a duty to keep matters under review in any event (Barber v Croydon LBC). Interestingly, he assumes that before any issuing of a s128 notice the LL will have had discussions with the tenant and will only serve the notice where that tenant has failed to improve their conduct. He also rejects the proposition that Stone is binding authority for the LL being able to rely on an earlier s128 notice when the tenant has failed to meet the conditions placed upon them by the review decision. His view is that Stone should be taken as having found the s129 decision to be unequivocal but then indicating what conduct the tenant might show in order to influence the LL not to implement the decision to seek possession pursuant to the LL’s obligation to keep matters under review at all times.
Etherton LJ sets out that this will avoid the kind of endless dissection and analysis of the minutiae of the words of the s128 notices, s129 review decisions and the conditions as offered by the LL and the tenant’s compliance and lack of it, as had arisen in this case . He finally comments that any dispute that does arise about such conditions can be dealt with simply by the service of a new s128 notice which would only subject the LL to further delay of four more weeks.
The decision is one revolving around close analysis of the words of the statute and the view that as there is no provision for conditionality in those words therefore where there is conditionality introduced, in either the s128 notices or s129 decisions, these cannot comply with the statute and for the avoidance of doubt, where that is the case, a new s128 should be served.
In the result though, one can’t help feeling that this will have the effect of narrowing LLs practice in this area. Clear rules make for efficient practice on the ground and costs saving. So it seems likely that the hard and fast rule that may be distilled from this case is that it is too complex to give introductory tenants second chances beyond the service of the s128 notice.