Kalonga, R (On the Application Of) v The London Borough of Croydon (2021) EWHC 2174 (Admin)

While Croydon v Kalonga on terminating flexible tenancies during the fixed term is to be heard by the Supreme Court (our report on the Court of Appeal here), Ms Kalonga’s fixed term has come to an end and Croydon had served the requisite s.107D(3) notice stating their intention not to grant a further term. This was the circumstance that gave rise to this decision on preliminary issues in a judicial review.

Croydon had served the notice on 15 April 2020 (disputed by Ms K, though not in this claim). S.107E(1) Housing Act 1985 provides that a request for a review of this decision 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”.

Ms K’s case was that she had not discovered the notice until 9 May 2020 and a review request was made on 11 May. However, the 21 day period expired on 6 May. Ms K asked for Croydon to exercise a discretion to accept the review request out of time. Croydon’s response was that it had no power to do so. Ms K brought this judicial review claim as a result.

The two issues for determination in this preliminary hearing in the claim were:

i) Did the local authority have a power to accept a review request out of time?
ii) If so, should the underlying merits of the review request in principle be considered by the local authority in deciding whether to accept a review request out of time.

On i) Ms K argued that the power to accept a late review request came from the local authority’s general powers of housing management under section 21 Housing Act 1985, that there was no express prohibition of accepting a late request, and that to hold the opposite could give rise to absurd consequences where for wholly innocent reasons a tenant was unable to make a review request in time.

The High Court held otherwise.

While other (contempraneous) provisions, such as s.107B(4) – right to request a review of landlord’s decision as to length of flexible tenancy – expressly provided that the period for making a review request could be longer than 21 days if the landlord so agreed in writing, s.107E(1) did not. Other housing provisions on reviews were

(1) A secure tenant may request a review of the landlord’s decision to seek a possession order on the mandatory ground of antisocial behaviour within 7 days of notice being served on her (s 85ZA(2) HA 1985). There is no provision for any extension of time. This provision was considered in Harris v Hounslow LBC (2017) EWCA Civ 1476;

(2) A person offered an introductory tenancy may request a review of the length of the proposed tenancy within 21 days of receiving the offer or “such longer period as the prospective landlord may allow in writing” (s.124B(3) Housing Act 1996 (“HA 1996”): this provision is not yet in force);

(3) An introductory tenant may request a review of the landlord’s decision to extend the trial period of her introductory tenancy within 14 days of notice being served on her (s 125B(1) HA 1996). There is no provision for any extension of time;

(4) An introductory tenant may also request a review of the landlord’s decision to seek a possession order within 14 days of notice being served on her (s.129(1) HA 1996). There is no provision for any extension of time;

(5) A demoted tenant may request a review of the landlord’s decision to seek a possession order within 14 days of notice being served on her (s.143F(1) HA 1996). There is no provision for any extension of time;

(6) A homeless applicant may request a review of the authority’s decision as to what duty (if any) is owed to her under Part VII of the HA 1996 within 21 days of notifying her of that decision “or such longer period as the authority may in writing allow” (s 202(3) HA 1996).

This variation in drafting was not simply accidental.

It is also of great significance, in my view, that some of the statutory review provisions in the housing field, in the 1985 and 1996 Acts, specifically provide that the deadline for applying for a review may be extended by “such longer period as the …. landlord may allow in writing”, and some do not. Among those that do are the review that is provided for in section 107B, where a flexible tenant wishes to challenge the proposed length of the tenancy. So, one of the review procedures for flexible tenancies makes specific provision for the extension of time, and one does not. Two consequences follow. First, this strongly suggests that Parliament has made a positive choice in certain contexts that reviews may proceed even if the applicant has missed the deadline, and not in others. It would, therefore, run counter to the intention of Parliament to permit a local authority to waive a deadline when the statute does not permit such a waiver. Second, as Mr Calzavara pointed out, if the Claimant’s interpretation were correct, then the words “such longer period as the …. landlord may allow in writing” would be otiose: 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.

The housing management power under s.21 was in Part II Housing Act 1985, not Part IV. There was no indication that the powers and limitations of Part IV were to be taken as being overridden by a general power elsewhere in the Act. S.21 was concerned with the operational management of housing stock. A general power to extend deadlines for reviews would in any event be expected to come from the Section 1(1) Localism Act 2011 general power. But that section was restricted by any ‘pre commencement provisions’ – which included the Localism Act amendments to Housing Act 1985 that brought in the flexible tenancy provisions. So the s.1(1) powers could not override the express provisions of s.107E(1).

And then there was Harris v Hounslow LBC (2017) EWCA Civ 1476. This was on Section 85ZA(2) Housing Act 1985 – a request for a review of the landlord’s decision to seek a possession order on the mandatory ground of anti social behaviour. This set a 7 day period for requesting a review. The Court of Appeal had held that there was no power for the local authority to accept an out of time review request, for two reasons

that the text of the statute leads to the conclusion that that the obligation or power to conduct a review only arises if the request for a review is “duly” made. Exactly the same language is used in section 107E(2) as in section 85ZA(3). In the flexible tenancy context, the power to review only arises if the request is duly made, which means that it has been made in time. Failing that, there is no power to review.

The other reason relied upon by the Court of Appeal in Harris, was that there was a strong “contextual indication” that the 7-day time limit was absolute. In other words, a strict requirement of adherence to time limits was consistent with the statutory purpose.

Both applied to s.107E.

So, there was no power to accept an out of time review request or carry out a review. The ‘absurd consequences’ could largely be addressed by a public law defence to a possession claim.

On ii), although this did not need to be decided in view of the decision on i), the High Court would have found that the merits of a review request could be considered in deciding whether to accept a late review request, following C v London Borough of Lewisham (2003) EWCA Civ 927.

But this is not over – the High Court itself granted Ms K permission to appeal, on the basis that an appeal may have real prospects of success.