The Queen (on the application of [Kalonga]) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Andrews LJ,Dingemans LJ |
| Judgment Date | 17 May 2022 |
| Neutral Citation | [2022] EWCA Civ 670 |
| Docket Number | Case No: CA-2021-000722 (Formerly C1/2021/1474) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 670
Lord Justice Dingemans
Lady Justice Andrews
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000722 (Formerly C1/2021/1474)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Cavanagh
CO/3139/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors) for the Appellant
Riccardo Calzavara (instructed by Croydon London Borough Council) for the Respondent
Hearing date: 6 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 11 o'clock on 17 May 2022.
Introduction
The Appellant (‘A’) appeals from a decision of Cavanagh J (‘the Judge’), with the leave of the Judge. The Judge dismissed A's application for judicial review of a decision by the Respondent, Croydon London Borough Council (‘the Council’). That decision was described in A's judicial review claim form as a decision by the Council ‘that it had no power to extend time for [A] to request a review under section 107E [of the Housing Act 1985] and even if it did have the “power” to extend time for an out of time review, it would not’.
On this appeal, Mr Bates appeared for A, and Mr Calzavara for the Council. Both counsel argued the case before the Judge. Mr Bates also acknowledged his debt to Ms Robins, who appeared with him both on the appeal and below. She was unable to attend in person, but attended via video link. I thank all counsel for their excellent written and oral submissions, which described the issues clearly and succinctly.
For the reasons I give below, I agree with the Judge that the Council had no power to extend the time for making an application for a review under section 107E of the Housing Act 1985 (‘the Act’). The issue on this appeal is a short issue of statutory construction. It is not, therefore, necessary for me to refer to the Judge's reasons in any detail.
Paragraph references are to the Judge's judgment unless the context shows that they are to a different judgment.
The facts
This summary of the facts is based on paragraphs 1–13. In May 2015, the Council granted A a five-year fixed term secure tenancy of 61, the Crescent, Croydon (‘the Property’). Such a tenancy is also known as a ‘flexible tenancy’. Mr Bates told the Court that there were about 30,000 such tenancies. The parties clarified, after the hearing, that those were in England only, and that that estimate related to 2019. There were problems with this particular tenancy, however. The Council brought possession proceedings before the expiry of the fixed term, on the grounds that A was behind with her rent payments and that there had been anti-social behaviour. A resisted the proceedings on several grounds. One of her arguments was that since there was no forfeiture clause in the tenancy agreement, the Council could not bring the tenancy to an end before the end of the fixed term. A succeeded in the High Court and in the Court of Appeal. The Supreme Court held, for reasons which were not the same as those given by the courts below, that the Council's possession claim was bound to fail ( Croydon London Borough Council v Kalonga [2022] UKSC 7; [2022] 2 WLR 592).
A's statement of facts and grounds explained that A had completed an on-line form on 20 June 2019, to enable the Council to consider whether or not to grant a new flexible tenancy. She gave her solicitors' address as her address for service (in relation to that form). It later turned out, as Mr Bates told the Court in his submissions, that, the Council having decided not to grant any more flexible tenancies, and although that part of the Council's website was active between 2015 and 2019, it was not being monitored in June 2019. As a result, the Council did not realise that A had given her solicitors' address as an address for service.
The fixed term expired on 24 May 2020. There is a statutory procedure under which a county court can make a possession order after the expiry of a flexible tenancy. I say more about that procedure in paragraphs 23 and 24, below. In short, the landlord must, among other things, give notice to the tenant that he does not intend to give the tenant a new fixed-term tenancy (‘the Notice’). The tenant has the opportunity to ask for a review of the decision not to grant a new tenancy, but must do so before the end of the period of 21 days beginning with the date when the Notice is served. If the tenant asks for a review and the landlord does not comply with that request, or if the landlord complies but his decision on the review is wrong in law, the county court may refuse to make a possession order.
The Council's case was that it posted a Notice through the letter box of the Property and attached a copy to the front door on 15 April 2020. A did not accept that the Notice had been posted through her letter box, but recognised on the application for judicial review that the Administrative Court could not resolve that dispute. A's case was that the Notice did not come to her attention until after the expiry of the deadline, because she had been away for some weeks. She only saw the Notice on 9 May, when she got back home. It was common ground before the Judge, and common ground before this Court, that A asked for a review after the expiry of the 21-day period. The dispute about the date of the service of the Notice can be resolved in any possession proceedings, if they are eventually brought (see footnote 9 of A's statement of facts and grounds).
The 21-day period expired on 6 May 2020. On 11 May 2020, A's solicitor emailed the Council, saying that A had only just seen the Notice and that she would like to apply for a review. A's solicitor asked for an extension of time of 14 days in which to make an application for a review. A's solicitor explained, in an email dated 18 May, that A had been away in Durham between 15 April and 9 May 2020, staying with her mother and son. That email also attached the representations which A wanted to make in support of her application for a review. In short, she challenged the Council's reasons for deciding not to renew her flexible tenancy, and drew attention to her learning difficulties, her serious health difficulties and the impact which being homeless would have on her.
The Council replied on 20 May 2020. Mr Aston said, on behalf of the Council, that the Council did not have power to extend the time for making an application for a review, but, if the Council did have such a power, it would not have been exercised in A's favour. On 22 May 2020, the Council gave A notice that it required possession of the property. A has not moved out. The Council has not begun proceedings for possession.
On 20 August 2020, A filed a judicial review claim form. Permission to apply for judicial review was granted by Lang J on 12 October 2020. On 16 November 2020, Thornton J ordered a trial of two preliminary issues. They were whether:
i. a local housing authority can accept an application for a review of a decision not to grant a new flexible tenancy if it is made more than 21 days after the service of a Notice and, if they may,
ii. the underlying merits of the application are relevant to the exercise of the discretion to extend time.
The statutory framework
The relevant provisions of the Act
Sections 1–3 of the Act make provision for local housing authorities and their districts. Sections 4–6A make provision for other authorities. Part II of the Act is headed ‘Provision of housing accommodation’. Section 9 confers on local housing authorities a wide power to provide housing accommodation, by building such accommodation, or converting buildings into houses on land which they own, and to alter, enlarge, repair or improve such housing accommodation. A local housing authority may provide, in connection with housing accommodation, furnishings and fittings (section 10), board and laundry facilities (section 11), welfare services (section 11A), with the consent of the Secretary of State, shops, recreation grounds and other buildings or land which will, in the opinion of the Secretary of State, benefit tenants (section 12), and streets roads open spaces and development generally (section 13). Section 17 gives local housing authorities power to acquire land for housing purposes, and section 19, a power to appropriate land for such purposes.
Section 20 provides that sections 21 to 27BA ‘(general provisions on housing management matters)’ apply in relation to ‘all houses held by a local authority for housing purposes’.
Section 21 is headed ‘General powers of management’. Mr Bates showed the Court that there has been a provision similar to section 21 ever since the enactment of section 61(1) of the Housing of the Working Classes Act 1890. Section 21 of the Act provides:
‘(1) The general management, regulation and control of a local housing authority's houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority.
(2) Subsection (1) has effect subject to section 27 and to any requirement imposed on the authority under Part 2 of the Housing and Regeneration Act 2008.’
Section 27(1) of the Act enables a local housing authority to agree that another person shall exercise, in relation to such of the authority's housing and other land held for a related purpose as are specified in the agreement, such of the authority's management functions as are so specified. Section 27 makes detailed provision about...
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