R Miss Chipo Kalonga v The London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 04 August 2021 |
| Neutral Citation | [2021] EWHC 2174 (Admin) |
| Docket Number | Case No: CO/3139/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2174 (Admin)
Mr Justice Cavanagh
Case No: CO/3139/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors) for the Claimant
Riccardo Calzavara (instructed by Head of Litigation, Croydon Legal Services) for the Defendant
Hearing date: 6 July 2021
Approved Judgment
Introduction
In May 2015, the Claimant was 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, the Defendant 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 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). The Defendant has been given permission to appeal to the Supreme Court.
In the meantime, on 26 May 2020, the fixed term expired. It is common ground between the parties that section 107D of the Housing Act 1985 (“the 1985 Act”) 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.
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. The requirements for a possession order after the expiry of a flexible tenancy are 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.
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. See Manchester CC v Pinnock [2010] UKSC 45; [2011] 2 AC 104; and Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15; [2015] AC 1399.
The present application for judicial review is 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 the present case, the Claimant made a request for a review but it is common ground that the request was made outside the 21-day period. The Defendant says that the s107D(3) notice was served on 15 April 2020, by being posted through the letterbox of the Claimant's property (although this is 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 states 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 Defendant 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 the Defendant 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 email of 18 May 2020 stated the reasons why the Claimant had not been present at the property during the relevant period, and attached representations for a review. It is not necessary to set these out in detail. In short, however, the reasons given by the Defendant 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. The Defendant also said 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 the Defendant 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.
A response was provided to the request for a review out of time on 20 May 2020. The response was provided by Mr Paul Aston, at the time the Defendant's Head of Housing Needs and Assessments. He said that since the request was made outside the 21-day period, the Defendant 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.
The issues for determination
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.
Permission to apply for judicial review was granted by Lang J on 12 October 2020. On 16 November 2020, Thornton J ordered that there should be a separate trial to deal with two preliminary matters. These are 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) will only arise if I decide Issue (1) in the Claimant's favour. The other grounds of challenge in the Claim Form, which are essentially that the Defendant 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 ...
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