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Don’t tell (and didn’t ask)


Introductory tenancies require a notice under s.128 Housing Act 1996 to be served before possession proceedings. That 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. [s.128(6)]

But in what form should that information be given? Does that affect the validity of the s.128 notice?

Some, but tantalisingly not all, of the issues are considered in a High Court appeal in

Wolverhampton City Council v Helen Shuttleworth. High Court Birmingham District Registry 27 November 2012 [not reported elsewhere. We have a transcript of judgment]

Ms S had an introductory tenancy from Wolverhampton. This was extended for 6 months following complaints of anti social behaviour. There were further complaints and the Council decided to serve notice then bring possession proceedings. A notice, supposedly  under s.128, was served on 23 June 2011. Ms S did not request a review – she said that she had not read the letter carefully and did not realise she could request a review – and possession proceedings were brought.

At first instance, the defence was that the s.128 notice was defective in that it sought to prescribe the way in which Ms S could request a review. The Judge struck out the possession claim on that basis, but granted permission to appeal.

The issue was that there can be no prescribed form or manner of requesting a review, as per Sullivan J (as he then) in R (on the application of Chalfat) v London Borough of Tower Hamlets [2006] EWHC 313 (Admin) at [16]. He said that it was clear that the request could be in any form

since the notice will be issued by the landlord who will have access to legal advice, whereas the request for review will be made by the tenant who may well not have access to such advice. Thus, whilst it is helpful for the notice to be accompanied by a form for requesting a review, the tenant is not required to complete the form or to make the request in any particular procedural manner.

The defence and appeal centred on the phrasing of two passage in the documents sent to Ms S by Wolverhampton.

The letter that served as a s.128 notice in this case stated, in supposed satisfaction of s.128(6)

You have the right to request a review of the landlord’s decision to seek an order for possession. Any request must be made within 14 days of service of this Notice. To make a request for a review you should complete the enclosed form and return it to your local housing office.

The enclosed form, headed ‘request for review’, stated:

Delete as Appropriate
(1) I *do/do not request a review of the Council’s decision to serve me with a notice of proceedings for possession of my introductory tenancy.
(2) I *do/do not request an oral hearing which I and/or my representatives would attend in person.

[Signature Space]

You must return this form to your local housing office within 14 days of service of the Notice of Proceedings for Possession.

The argument for Ms S was that the wording of the notice and the enclosed form together:

sought to limit her right to seek a review of the decision of the [Council] by requiring her to inform the [Council] of her intention to seek a review in writing through the completion of the request form rather than allowing her to use any form of communication she wished, including allowing her to initiate it orally, as is her right

This limitation, argued Ms S, via Counsel Martin Hodgson, meant that the notice did not properly inform Ms S of her right to request a review as required by s.128(6), and therefore the possession claim must fail. At first instance, the Judge had accepted this argument, holding that the effect of the notice, with the enclose form “was to inform Ms Shuttleworth that the only way in which she could request a review was by completing and submitting the form.” and that this rendered the notice defective.

On appeal, by the Council, Ms S maintained the Judge below was right. The Council raised 3 issues:
1. the construction issue – did the wording of the notice (and form together) prescribe the means by which Ms S could request a review;
2. That the Council did have a power to stipulate how the tenant must request a review; and
3. Even if Ms S was right on the construction and lack of powers issues, this did not mean that the notice did not comply with s.128(6) requirements.

On 1. the construction issue, the High Court noted the difference in wording between ‘must’ on the enclosed form and ‘should’ in the notice/letter:

In my opinion, the difference in language must mean that something different was intended. “Must” in the context of when the request for a review might be made tracked the language of section 128(6), and could only have meant that the time limit of 14 days was mandatory and had to be complied with. How the request for a review might be made was altogether different. As I have said, the 1996 Act did not specify how the request might be made. So how is one to give effect to the fact that the word “should” is used and not “must” in the context of how the request for a review might be made when the Act did not stipulate how such a request had to be made? The answer, I think, has to be to treat the reference to the completion and submission of the form in order to request a review as a recommendation only. Tenants were being recommended (indeed, they were even being encouraged) to use the form, but there was nothing in the notice which said that they had to.

While the Judge below had considered that the notice and the form in conjunction meant that such a construction couldn’t hold – as the form said ‘you must return the form in 14 days’ not ‘you ‘must request an appeal in 14 days’ – the High Court took the view that that form should be considered a subsequent document:

However, by the time the tenant uses this form, the tenant will have decided whether to request a review or not, and importantly to use the form to request a review. In these circumstances, the instruction relates to when the form had to be submitted by rather than how the request for a review should be made.

While the wording of the notice could certainly have been improved by saying ‘may’ rather than ‘should’, at the same time the wording should have said ‘must’ rather than ‘should’ if compulsory use of the form was intended.

There was an issue raised below over what Ms S though the passage meant. This would not be appropriate as an aid to construction. However, if the Judge below was referring to the Council’s tenants in general, which seemed more likely, it would be right to conclude that they did not know that they had the right to request a review in any way they chose.

Therefore, if all that the judge was saying was that introductory tenants who received the notice would not have wondered whether they had to use the form to request a review or whether they could request a review in some other way, I agree with him. They would just have assumed that completing and submitting the form was the way to request a review, and the question of whether that was the only way to request a review, or whether they could request a review in some other way, was not something which would have come up on their radar. They would just have accepted that that was how it was to be done. But that does not mean that the Council was stipulating that it had to be done in that way.

The Council’s internal training documents for staff stipulated that:

On receipt of a request for a review, the reviewing officer must date-stamp and initial the form on the same day and pass [it] to the relevant estate manager.

However, while this meant that the Council was expecting the form to be used, it did not amount to saying this was the only way a review request could be made.

So, on the construction issue, the High Court found that the Council’s notice did not stipulate the only way of making a review request.

This in itself was sufficient to determine the appeal. However the court went on to consider issue 2 – whether the Council had the power to stipulate the form in which the review request was made.

There was no prescribed way in which the review request should be made in the 1996 Act nor the Introductory Tenants (Review) Regulations 1997 (SI No. 72 of 1997). The Regulations provide that the “precise way in which a landlord chooses to conduct such review is for each landlord to determine.” The Council argued that by extension, where there was no prescribed means for requesting a review, it was for the Council to determine. Ms S argued by analogy to the case law on request for housing assistance under Part VII (homeless applications). Neither analogy was found to be convincing.

The High Court found

I see no reason why the Council cannot stipulate the way in which a request for a review has to be made. The critical point is that if a request for a review is made in a way other than the way the Council has stipulated, there can be no question of that disentitling the tenant from having the decision reviewed, provided, of course, that the request was made within 14 days of the service of the notice . So long as the tenant’s failure to comply with what the Council has stipulated has no adverse legal consequences for the tenant, the Council can stipulate how the request for a review should be made.

And on the crucial issue 3. – would a notice which demanded that the tenant request a review in a particular way be a defective notice as not fulfilling the requirements of s.128(6) – the Court found this was not an easy issue, but not one that it had to decide upon, given the finding on construction of the notice.

Appeal allowed and possession order within 28 days made.


There are two interesting issues here, which may well turn up again.

The first is the finding that a Council may stipulate the way in which a review request is made, so long as it doesn’t exclude review requests made otherwise. I suspect that another Court may be more persuaded by the analogy with Housing Act 1998 Part VII application case law (e.g. R v Chiltern District Council ex parte Roberts (1991) 23 HLR 387 and R (on the application of Aweys) v Birmingham City Council [2007] HLR 27) to the effect that no method of application should be stipulated.

The second issue, tantalisingly unresolved, is whether a notice which required a review request to be made in a certain way would be defective for the purposes of s.128(6) and therefore render it defective for the purposes of a possession claim. If the notice provides the information required by s.128(6) – the right to request a review of the Council’s decision to seek an order for possession, and the time within which such a review must be made – would an additional requirement on the form of review request render it non-compliant?

I suspect that sooner or later, we will find out…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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