Kalonga, R (On the Application Of) v London Borough of Croydon (2022) EWCA Civ 670
The Court of Appeal was faced with the question of whether a local authority had the power to extend time for a flexible tenant to request a review of the authority’s decision not to offer a new fixed term at the end of the initial fixed term beyond the 21 days provided for in section 107E Housing Act 1985. At first instance judicial review, the High Court had held there was no such power (our report here). Ms Kalonga appealed.
Section 107E provides (as far as relevant):
(1) A request for a review of a landlord’s decision to seek an order for possession of a dwelling-house let under a flexible tenancy must be made before the end of the period of 21 days beginning with the day on which the notice under section 107D(3) is served.
(2) On a request duly made to it, the landlord must review its decision.
MS K argued that the local authority’s general powers of management under section 21 Housing Act 1985 gave it a power to extend time to accept a review request. Choosing a tenant was a facet of housing management. In other areas of housing law, such as Part VII Housing Act 1996 review requests, the power to accept a second review request was there, even though expressly forbidden by s.202.
The Court of Appeal held:
The flexible tenancy regime as added to Housing Act 1985 was “a specific substantive and procedural code about flexible tenancies”. One provision (s.107B(4)(b)) did give the local authority express power to extend time for making an application, and another to agree to dispense with statutory requirements (s.107C(4), but the absence of such an express power in the other provisions had to be read as parliament’s intention.
On the principle of ultra vires, the authority could not extend time.
Section 21 powers did not extend to sections 107A-107E which were a detailed and specific code for flexible tenancies. General provisions, such s s.21, could not be relied upon to cut down or contradict specific provisions.
Section 111 Local Government Act 1972 did not assist Ms K as Hounslow London Borough Council v Harris (2017) EWCA Civ 1476 was authority for that not extending to a power to vary statutory time limits. The relevant wording of the provisions in Harris and this case were substantially the same and Harris was binding. In any event the express wording of section 107E closed off an argument that an authority could do something via s.111 that it was not expressly excluded from doing.
There can be no doubt that, as a decision maker governed by public law, and as a custodian of ratepayers’ money, a local housing authority has power, in an appropriate case, to reconsider a decision it has made, whether or not it is yet the subject of litigation, and, if it considers that it is wrong, or arguably wrong, to withdraw it and to reconsider it, rather than maintaining it through thick and thin, and ultimately losing a challenge in court. It is not accurate to refer to this as a ‘non-statutory review’ or as the exercise of a ‘non-statutory discretion’. That gives the wrong impression that local authorities have power to do things which are not authorised by statute. I consider that if any legal framework is required for the actions of the local housing authorities in the section 202 cases, it can be found in section 111, and in section 222(1), of the 1972 Act, or in the two provisions read together, or, in some cases, in section 12 of the 1978 Act. It is, however, correct to say that if a local authority chooses to reconsider a decision (whether or not it expressly withdraws that decision), it is exercising a discretionary power. It is also a discretion which, by its very nature, is broad, and very much depends on fine judgments. For that reason it is unlikely to be the subject of a successful application for judicial review