Court of Appeal
Hounslow London Borough Council v Harris
[2017] EWCA Civ 1476
Gross, Lewison, Flaux LJJ
2017 Sept 26; Oct 5

HousingSecure tenancyClaim for possessionLandlord seeking possession of flat on mandatory grounds that closure order madeTenant failing to request review of decision to seek possession within seven day-statutory time limitWhether landlord having power to extend time limit for requesting review Housing Act 1985 (c 68) (as amended by Anti-social Behaviour, Crime and Policing Act 2014 (c 12), ss 94(1), 95, 96), ss 83ZA, 84A, 85ZA(2)

The tenant held his flat under a secure tenancy. Following complaints of anti-social behaviour, the magistrates’ court made a three-month closure order in respect of the flat under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014. A month later, the local authority landlord served the tenant with a notice under section 83ZA of the Housing Act 1985 stating that it would ask the court to make an order for possession on the mandatory ground, contained in section 84A, that the flat was subject to a closure order. The tenant failed to request a review of the landlord’s decision to seek an order for possession within the seven-day time limit for doing so specified in section 85ZA(2) of the 1985 Act, but subsequently sought an extension of time for requesting such a review. The landlord refused to extend time and issued proceedings. However it then reviewed its decision, but confirmed the decision to proceed. The district judge dismissed the tenant’s appeal, holding that although the landlord ought to have granted an extension of time or (if it had no power to do so) withdrawn the notice seeking possession and served a fresh notice thus starting the clock again, the fact that the landlord had carried out a review during the pendency of the proceedings cured any procedural defect, with the consequence that it was entitled to the possession order.

On appeal by the tenant—

Held, appeal dismissed. The landlord did not have the power to agree to accept an out of time request for a statutory review or to waive compliance with the statutory time limit and could not therefore “extend time” in the sense of altering the time limit laid down by section 85ZA(2) of the Housing Act 1985. The relevant statutory guidance emphasised the speed of the procedure. There was no express power in section 85ZA of the 1985 Act to extend either the time within which a request should be made or the time by which a review had to be concluded. The fact that the landlord had no power to extend the time specified in section 85ZA(6) for completion of the review was a strong contextual indication that the seven-day period for triggering a statutory review could not be extended or waived either. It was clear that the purpose of the mandatory ground for possession was to provide “swifter relief for victims, witnesses and the community”. That purpose plainly engaged the public interest and the principle that where the right in question engaged the public interest, or the interests of third parties, it was not open to an individual to waive compliance. The seven-day time limit had not been introduced “for the sole benefit” of the landlord and the text of the statute led to the same conclusion. The landlord’s obligation to conduct the review only arose under section 85ZA(3) if a request for a review was “duly” made. The only requirement contained in the primary legislation was that the request had to be made within seven days. It followed that a request was only “duly” made, within section 85ZA(3), if it was made within that seven-day period. Therefore, a tenant who requested a statutory review outside the seven-day period laid down by section 85ZA(2) was not entitled to a statutory review and the landlord had no obligation or power to conduct one. Neither did the landlord have any obligation to serve a fresh notice seeking possession if the tenant’s failure to make a request in time was outside his control. The decision of Parliament not to give a landlord the power to conduct a statutory review if a request was made out of time was made in the interests of bringing speedy relief to the victims of anti-social behaviour and the community. To say that a landlord had a duty to restart the clock would run counter to that legislative purpose. Even if the landlord had a power (as opposed to a duty) to serve a fresh notice superseding one that had already been served, it would need to have good reason to do so, particularly in the light of the legislative purpose of bringing speedy relief to the victims of anti-social behaviour. The general application of public law principles to decisions of a local authority landlord should not be allowed to undermine the legislative scheme of the mandatory ground for possession. For all those reasons, there was no bar to the making of a possession order on the sole ground of defence, namely that a statutory review had not been conducted (paras 17, 19–20, 22–24, 27–28, 29, 30).

Anthony Katz (instructed by Ash Solicitors, Hounslow for the tenant.

Tina Conlan (instructed by HB Public Law, Harrow) for the landlord.

Sharene P Dewan-Leeson, Barrister

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