England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTI 98/1228/2

(HIS HONOUR JUDGE HOWARTH )

Royal Courts of Justice

The Strand

London WC2

Monday 21st December, 1998

B e f o r e:

LORD JUSTICE AULD

LORD JUSTICE JUDGE

SIR JOHN KNOX

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MANCHESTER CITY COUNCIL

Appellant

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(1) JOSEPH COCHRANE

(2) ANNETTE COCHRANE

Respondents

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(Handed down Transcript of Smith Bernal Reporting Ltd

180 Fleet Street, London EC4A 2HG

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR A ARDEN QC and MR J MANNING ( MR I COLVILLE 21.12.98) (Instructed by The City Solicitor, Town Hall, Manchester M60 2LA) appeared on behalf of the Appellant

MR P BUCKLEY (Instructed by Messrs Clifford Chapman & Co., Manchester M14 7DA) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

SIR JOHN KNOX:

This appeal from a decision of His Honour Judge Howarth in the Manchester County Court, on 18th June 1998, raises the question of the extent of the County Court's jurisdiction in dealing with possession actions in relation to introductory tenancies under Part V of the Housing Act 1996 ("the Act"). This part contained novel provisions for housing authorities to be entitled to elect to operate an introductory tenancy scheme whereby new tenants would have a probationary one year period before becoming secure tenants. The appellants, Manchester City Council ("the Council") made such an election.

On 15 April 1997, the Council granted to the respondents, Mr and Mrs Cochrane, a joint weekly tenancy of 3 Ashburn Avenue, Burnage, Manchester ("the property"). The tenancy was expressed on the face of the agreement to be an introductory tenancy until 14th April 1998, when the respondents were to become secure tenants. Clause 1.9 of the tenancy agreement included the following:

"The council can take possession of your home for one of two reasons:

Because of your own action or the action of someone living with you or visiting you:

You, or they, must have broken a rule in this tenancy agreement or given false information in your housing application. In these cases we will not offer you another home."

The agreement then went on to mention other irrelevant circumstances when the Council could take possession of the tenant's home. Clause 4.2 under the heading "Tenant's Responsibilities" read as follows:

"You (or any one living with you, or visiting your home) must not cause a nuisance, annoyance or disturbance to any other person. Examples of nuisance, annoyance or disturbance include:

Loud music; arguing and door slamming; dog barking and fouling; offensive drunkenness; selling drugs or drug abuse; rubbish dumping; playing ball games close to someone else's home."

Clause 4.9 read:

"You (or anyone living with you, or visiting your home) must not inflict domestic violence or threaten violence against any other person (living with you or living elsewhere). You (or anyone living with you, or visiting your home) must not harass or use mental, emotional or sexual abuse to make anyone who lives with you leave the home."

The other provisions of the tenancy agreement are not material for present purposes.

The relevant provisions of the Act are as follows: Section 125(1). “A tenancy remains an introductory tenancy until the end of the trial period, unless one of the events mentioned in sub-section (5) occurs before the end of that period.

(2) The "trial period" is the period of one year beginning with -

(a) In the case of a tenancy which was entered into by a local housing authority:-

(i) The date on which the tenancy was entered into or

(ii)" ...This is not relevant.

Sub-section (5) contains various events none of which is relevant for present purposes.

...

“(7) This section has effect subject to s.130 (effect of beginning proceedings for possession).”

Section 127 (1) “The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for possession of the dwelling house..

(2) The court shall make such an order unless the provisions of s.128 apply.

(3) Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order.

Section 128 Notice of Proceedings for Possession.

(1) The court shall not entertain proceedings for the possession of a dwelling house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.

(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling house.

(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.

(4) The notice shall specify a date after which proceedings for the possession of the dwelling house may be begun.

The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(5) The court shall not entertain any proceedings for possession of the dwelling house unless they are begun after the date specified in the notice of proceedings.

(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.

(7) The notice shall also inform the tenant that if he needs help or advice about the notice, or what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor."

The Council served a notice dated 9 March 1998 to terminate the introductory tenancy addressed to the respondents which so far as material read as follows:

"The COUNCIL OF THE CITY OF MANCHESTER intends to ask the Court to make an Order requiring you to give up possession of “

The property was described

"thereby ending your introductory tenancy which began on 14th April 1997

(3) Possession will be sought pursuant to the provisions of Part V of the Housing Act 1996.

The reasons why the Council are applying for a possession order to terminate your introductory tenancy is/are:

3.1 You have broken clauses 1.9, 4.1, 4.2 and 4.9 of your tenancy agreement."

The notice then quoted those clauses and stated various alleged breaches by way of nuisance, annoyance or disturbance, or incidents of domestic violence. The notice further contained the following allegation, "It has been discovered that information given in your housing application is untrue and that you in fact still hold an alternative tenancy."

“(4) The Court proceedings will not be begun until after 6th April 1998.

(5) You have the right to request the Council to hold a review of the decision to seek an order for possession. Your written request for a review and any representations in writing must be received by 23 March 1998."

In the event the Council did not proceed further with the allegations of breaches by way of nuisance, annoyance or disturbance, or domestic violence incidents. The allegation regarding untruthful information in the housing application was subsequently admitted by one of the respondents but denied by the other.

All the requirements in the various sub-sections (1) to (7) of s.128 set out above, were in fact complied with and the validity of the notice of the 9th March 1998 as a notice was not challenged by or on behalf of the respondents. Reverting to the provisions of the Act, s.129 reads as follows so far as relevant.

“(1) A request for review of the landlord's decision to seek an order for possession of a dwelling house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.

(2) On a request being duly made to it, the landlord shall review its decision.

(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section.”

Regulations have been made. They are called the Introductory Tenants (Review) Regulations 1997 ("the Regulations"). The regulations contain requirements regarding the manner of the conduct of such reviews. No argument was addressed to us on their terms, which need not be quoted.

Continuing with Section 129

“(5) The landlord shall notify the person concerned of the decision on the review.

If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.

(6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling house may be begun."

On 23rd March 1998, in due time under the Act, the respondents exercised their right to request a review of the decision to terminate their tenancy. On 1st April 1998, an oral review was held. The respondents claim that it was not conducted in accordance with the Regulations in various regards, such as a denial of a request for representation or for an adjournment, intimidatory conduct by the senior officer who conducted the inquiry and other similar complaints. There has been no investigation of the truth of these allegations.

After the oral review on 1st April 1998, the Council confirmed their decision to terminate the respondents' tenancy and issued proceedings for possession of the property in the Manchester County Court on 9th April 1998, which was after the 6th April, the date identified in the notice to terminate the tenancy as the date before which possession proceedings would not be started.

Reverting to the provisions of the Act, s.130, so far as relevant, reads as follows:

"(1) This section applies where the landlord has begun proceedings for the possession of a dwelling house let under an introductory tenancy and (a) the trial period ends ... "

(2) Subject to the following provisions, the tenancy remains an introductory tenancy until

(a) the tenancy comes to an end in pursuance of s.127(3) (that is, on the date on which the tenant is to give up possession in pursuance of an order of the court), or

(b) the proceedings are otherwise finally determined."

The effect of these provisions is therefore that if the housing authority does not start proceedings for possession before the end of the trial period of one year, the tenancy becomes a secure tenancy at the end of that one year period. If, on the other hand, the authority does start proceedings before the end of the trial period the tenancy remains an introductory tenancy until possession is ordered to be given up or the proceedings are otherwise finally determined.

The last relevant provision of the Act is in s.138 which reads, so far as relevant, as follows:

"(1) A county court has jurisdiction to determine questions arising under this Chapter and to entertain proceedings brought under this Chapter and claims, for whatever amount, in connection with an introductory tenancy."

The proceedings were thus started on 9th April 1998 with particulars of claim for possession, setting out the grant of the tenancy, the alleged breaches, the notice of termination of the 9th March 1998 and a claim that the Council was entitled to possession under s.127 of the Act. The matter came before District Judge Griffiths on 9th June 1998, when an objection was made by the Council to the jurisdiction of the County Court to hear the defence which by then it was known the respondents wished to advance. District Judge Griffiths, taking the view that the County Court did have jurisdiction to hear and determine those projected defences, gave directions for the filing of the respondents' defence and other directions for discovery and the further conduct of the proceedings. A defence was filed on 12 June 1998. That defence denied the breaches of the tenants' agreement in the tenancy and raised the defence that there were failures to comply with the Regulations and a denial of natural justice in the conduct of the review by the Council. An appeal from District Judge Griffiths' decision was heard and dismissed by Judge Howarth on 18th June 1998. It is from that decision that the present appeal is brought.

The contention of the Council is that the introductory tenancy created under Part V of the Act gives no security of tenure, and that because of the word "shall" in Section 127(2), there is no discretion vested in the County Court in such a possession action once the requirements of s.128 regarding the notice of termination are satisfied. In the present case, it is not in dispute that s.128 was fully complied with. It is further submitted for the Council that it follows from the terms of s.127(2) in its context that Parliament has conferred the discretion in relation to the conduct of the review, which s.129(2) requires the housing authority to conduct, on the authority itself, and has given no statutory power to the County Court to verify or control that discretion. Reliance is also placed on behalf of the Council on the contrast between s.127(2) "The Court shall make such an order unless the provisions of s.128 apply" which does not in terms confer upon the County Court power to do more than be satisfied that s.128 has indeed been complied with, and the provisions of s.204(1) of the Act which provide as follows:

"(1) If an applicant who has requested a review under s.202 -

(a) is dissatisfied with the decision on the review, or

(b) is not notified of the decision on the review within the time prescribed under s.203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision."

Section 202 of the Act confers upon the applicants under a variety of sections in Part VII of the Act, dealing with homelessness, a right to request a review of decisions of the local housing authority. In that context it is said that where Parliament wished to confer upon the County Court jurisdiction to oversee the proper conduct of local authority review procedures, it said so by conferring an express power to deal with any point of law arising from a decision on the review. The absence of such an express provision is, it is argued, an indication that Parliament had no such intention in relation to a review by a local housing authority under Part V of the Act which deals with introductory tenancies.

It is naturally accepted on behalf of the Council that in conducting the review required by s.129(2) it has to conform with the requirements of natural justice and is subject to control by judicial review. That however, it is argued, is a matter of public law and not in any true sense a private law right of holders of introductory tenancies upon whom valid notices under s.128 of the Act have been served. The only private law right of such a tenant, it is said, is a right to remain in possession until an order for possession is made against him which the County Court is bound to grant once satisfied that Section 128 has been complied with. It follows on this view of the matter that the right to have a proper review conducted under s.129 (2) is a public law right and not a private law one. It is common ground that the County Court has no general jurisdiction to conduct judicial review proceedings. See the general prohibition in s.38(3) of the County Court Act 1984 against granting orders for mandamus, certiorari or prohibition.

The contrary argument which persuaded Judge Howarth to make the decision which he reached to allow the action to go forward in the County Court, was primarily based upon the decision in Wandsworth London Borough Council v Winder [1985] AC 461. In that case, the Defendant, Mr Winder, until 6th April 1981, had as a secure tenant of the Wandsworth Borough Council, a contractual right to occupy a flat providing he paid the rent of £12.06 weekly, and observed the terms of the tenancy. The Wandsworth Council had a statutory right under s.40 of the Housing Act 1980 unilaterally to vary the terms of the tenancy by increasing the rent, subject to irrelevant statutory conditions. But that right to vary the contract between the landlord and tenant was also subject to the duty to act reasonably in the Wednesbury sense. On 6th April 1981 the Council sought to put up Mr Winder's rent to an extent which he claimed was Wednesbury unreasonable and he sought to defend the Council's possession action for non-payment of the full increased rent on that ground. The issue thus was whether Mr Winder, in addition to such rights as he might have to apply for judicial review, a remedy which by the time the matter reached the House of Lords had in fact been refused to him, had the right to advance a defence in the County Court that the increases were ultra vires and void. In the House of Lords it was held that he had such a right. Lord Fraser of Tullybelton, with whom the rest of their Lordships agreed, distinguished the earlier decisions of O'Reilly v Mackman [1983] 2 AC 237 and Cocks v Thanet DC [1983] 2 AC 286. Lord Fraser said this, at Page 506:

"The question raised in O'Reilly was the same as that in the present case, although of course, the circumstances were different ...

In that case four prisoners in Hull Prison had started proceedings in three cases by writ and in one case by originating summons, each seeking to establish that a disciplinary award of forfeiture of remission of sentence made by the Board of Visitors of Hull Prison was void because the Board had failed to observe the rules of natural justice. This House held that the proceedings were an abuse of the process of the court, and that the only proper remedy open to the prisoners was by way of judicial review under Ord 53. There are two important differences between the facts in O'Reilly and those in the present case. First, the plaintiffs in O'Reilly had not suffered any infringement of their rights in private law; their complaint was that they had been ordered to forfeit part of their remission of sentence but they had no right in private law to such a remission, which was granted only as a matter of indulgence. Consequently, even if the board of visitors had acted contrary to the laws of natural justice when making the award, the members of the board would not have been liable in damages to the prisoners. In the present case, what the respondent complains of is the infringement of a contractual right in private law. Secondly, in O'Reilly, the prisoners had initiated the proceedings, and Lord Diplock, throughout in his speech treated the question only as one affecting a claim for infringing a right of the plaintiff while in the present case the respondent is the defendant.”

Lord Fraser dealt with the decision in Cocks as follows, at page 508, “ Cocks was an action by a homeless person claiming that the local housing authority had a duty to provide permanent accommodation for him. The Council resolved that the plaintiff had become homeless "intentionally" in the sense of the Housing (Homeless Persons) Act 1977. Consequently, the plaintiff had no right in private law to be provided with permanent housing accommodation by the authority. The plaintiff raised an action in the county court claiming, inter alia, a declaration that the council were in breach of their duty to him in not having provided him with permanent accommodation. In order to proceed in his action he had to show as a condition precedent that the Council's decision was invalid. This House held that the plaintiff was not entitled to impugn the Council's decision in public law otherwise than by judicial review, notwithstanding that the effect of the decision was to prevent him from "establishing a necessary condition precedent to the statutory private law right which he [was seeking] to enforce": see per Lord Bridge at Harwich at page 294E. The essential difference between that case and the present is that the impugned decision of the local authority did not deprive the plaintiff of a pre-existing private law right; it prevented him from establishing a new private law right. There is also the same distinction as in O'Reilly namely, that the party complaining of the decision was the plaintiff.”

Lord Fraser stated his conclusion at P 509 as follows: "It would, in my opinion be a very strange use of language to describe the respondent's behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum claimed by the plaintiff. Moreover, he puts forward his defence as a matter of right, whereas in an application for judicial review, success would require an exercise of the court's discretion in his favour. Apart from the provisions of Order 53 and s.31 of the Supreme Court Act 1981, he would certainly be entitled to defend the action on the ground that the plaintiff's claim arises from a resolution which (on his view) is invalid: see for example Cannock Chase BC v Kelly [1978] 1 WLR 1, which was decided in July 1977, a few months before Order 53 came into force (as it did in December 1977). I find it impossible to accept that the right to challenge the decision of a local authority in course of defending an action for non-payment can have been swept away by Order 53, which was directed to introducing a procedural reform.".

Finally, Lord Fraser said this at page 510:

"If the public interest requires that persons should not be entitled to defend actions brought against them by public authorities, where the defence rests on a challenge to a decision by the public authority, then it is for Parliament to change the law."

So far as the second feature identified by Lord Fraser, the different position of a plaintiff (as in O'Reilly and Cocks) and a defendant (as in Winder) is concerned, the present case is one where it is the defendant who seeks to rely on the invalidity of the review which is required by statute. The case is therefore in line in this respect with Winder rather than O'Reilly or Cocks. It is therefore to the correct analysis of the nature of the respondents' private law right to remain in possession that attention has to be paid.

As to this, it is argued on behalf of the Council that on a correct analysis the respondents are seeking to assert that the Council acted unlawfully in bringing the proceedings for possession and that that is essentially different from raising a right to defend the proceedings on the merits. Mr Winder had a right to remain in possession so long as he paid £12.06 plus such sums as the Wandsworth Council, acting in a Wednesbury reasonable manner, required by way of increase. If, as he claimed, they invalidly asked for more, he had a substantive defence to the possession action, namely that he had paid all the rent he was liable to pay and was entitled to remain in possession. Reliance was placed on, inter alia, Avon CC v Buscott [1988] QB 656 for the proposition that the only permissible way to resist proceedings, to which there is otherwise no defence, but which were commenced pursuant to an unlawful decision to bring those proceedings, is by way of judicial review and not by defence in the action. In that case gypsies, who were confessedly trespassing on the County Council's land, sought to defend a summary application for possession under RSC O.113 by claiming that the plaintiff Council was in breach of its duties under the Caravan Sites Act 1968, to provide accommodation for them and that the decision to bring the proceedings was Wednesbury unreasonable. Lord Donaldson MR having quoted passages from Lord Fraser's speech in Winder, said at page 663:

"Mr Geey, for the defendant, relies heavily on the fact that, as in Winder [1985] AC 461, it was not his client, but the local authority which chose the forum and form of the proceedings. Accordingly, there can be no question of any abuse of the proceedings, so far as his clients are concerned.

This I accept, but there is a fundamental difference between this case and Winder's case. Mr Winder was seeking to raise a true defence. He was saying that he had a valid tenancy, that he did not owe any rent and accordingly was not liable to eviction. It was a defence on the merits. In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its right. It is not entitled to come to the court to seek an eviction order. If one can imagine a private company whose memorandum and articles limited its powers to acting in a way which was Wednesbury reasonable and which sought to evict the defendants from its land in similar circumstances, the defendants would be seeking to strike out the action for want of authority on the part of the plaintiff to bring the action. When a defendant is seeking, in effect, to strike out an action on the basis of a public law right, he should, in my judgment, proceed by way of an application for judicial review, thus ensuring that the matter is dealt with speedily as a preliminary point and in a manner which gives the public authority and the public which it serves the protections enshrined in the judicial review procedure."

Avon CC v Buscott is clearly distinguishable from the case before us in that there was there no private right at all to remain in possession as against the true owner, whereas the respondents in the case before the Court do have the rights of the holder of an introductory tenancy. That leads back to the critical question in this appeal, the correct analysis of those rights of the respondents.

In my view, this appeal should be allowed. I say this for three reasons.

First, on analysis the private law right of the respondents under the introductory tenancy is in my view no more that a right to possession until an order for possession in favour of the landlord is made by the Court and such order must (not may) be made once the requirements of s.128 regarding the notice of proceedings have been complied with. Mr Buckley, for the respondents, did not argue before us that the respondents had a relevant private law right which they were entitled to defend. He did adopt the reasoning of Judge Howarth, but beyond saying that this case was nearer to the decision in Winder than the authorities relied upon on behalf of the Council, Judge Howarth did not identify any relevant private right vested in the respondents. In my view, Parliament by enacting s.127(2) in the mandatory terms "the Court shall make such an order unless the provisions in s.128 apply" has clearly imposed a statutory limitation on the right of an introductory tenant to retain possession. Indeed there is a remarkable constriction of the Court's powers in that on the one hand, under s.128(1) the Court is prohibited from even entertaining possession proceedings unless the various requirements regarding the notice of proceedings for possession contained in s.128 are satisfied, showing that it has no jurisdiction to hear a possession action at all unless they are thus satisfied, while on the other hand, if the requirements of s.128 are satisfied, so that the Court does have jurisdiction to entertain the possession proceedings, the Court is positively required to make a possession order under s.127(2). If one were to treat the provisions of s.128 as a form of Scylla and those of s.127(2) as Charybdis, the channel in between available for navigation is remarkably narrow but I see no escape from that analysis even though it does reduce the functions of the Court to that of ascertaining that it does have jurisdiction to entertain the proceedings at all. Once it has done so it is required to make a possession order and that in my view, necessarily involves that it has no discretion in the matter at all.

There were suggestions advanced in argument that the Court would have power to adjourn the proceedings or even stay them if it discerned that there was reason to suppose that the requirements of s.129(2) that the landlord should review its decision if duly requested to do so, had not been properly satisfied. It does not appear to me open to the Court, in the face of the very specific provisions of s.127(2) that it should make such an order for possession unless the provisions of s.128 apply, to do more in an appropriate case than grant a temporary adjournment pending the taking of other properly constituted proceedings in another jurisdiction by way of judicial review in order to establish the validity of the decision by the local authority to bring the possession proceedings. It is common ground that the Council's duty to comply with s.129(2) is subject to judicial review. Equally it is clear that this duty is a public law duty and the correlative right in the tenants to have it lawfully performed must be a public law right. The County Court must in my view have at least jurisdiction to grant an adjournment if satisfied that there is a real chance of leave to apply for judicial review being granted. This was the view taken by Lord Donaldson MR in Avon County Council v Buscott , supra at P 663, when he said this:

"If an application had been made to Stuart-Smith J for an adjournment to enable judicial review proceedings to be taken, he would have had to have asked himself whether there was any real chance of leave to apply being granted. If he had thought that there was a real possibility, he should, and I am sure that he would, have granted an adjournment."

But it is one thing to grant an adjournment to permit the exercise of relevant rights in another jurisdiction and quite another thing for the Court itself to embark upon an investigation of the very issues which that other jurisdiction would have power to rule upon. Specifically it would, in my view, be a clear contravention of the mandatory terms of s.127(2) for the County Court to entertain a defence based on a denial of allegations of breaches of a tenancy agreement relied upon in the notice under s.128. Similarly, in view of those mandatory provisions it would not be proper in my view for a County Court to grant a stay in the possession proceedings on the application of a defendant tenant who alleges a failure by a landlord local authority to observe the rules of natural justice or otherwise comply with its public law duty under s.129(2), so as to bring pressure upon the landlord to reconsider its review. The general prohibition in s.38(3) of the County Court Act 1984 operates as a ban on any County Court reviewing the exercise of failure to exercise a public duty unless there is parliamentary authority for it to do so. The mandatory terms of s.127(2) so far from constituting any sort of statutory authority in that behalf, seem to me to point in the opposite direction.

This conclusion is supported by the second reason for allowing this appeal which is the clear indication afforded by the contrast between s.204(1) of the Act conferring jurisdiction upon the county court to decide any point of law in relation to housing authority reviews under s.202(1) regarding homelessness on the one hand and s.138(1) read with s.127(2) of the Act which confer a very much narrower jurisdiction relating to reviews of decisions to take proceedings to evict introductory tenants on the other hand.

The third reason for this conclusion is procedural and is best explained by an example. If a tenant under an introductory tenancy proved to be thoroughly unsatisfactory so that the housing authority was justified in deciding to take proceedings to recover possession, but, after serving a valid notice under s.128 and being required to review its decision under s.129(2), the housing authority failed to observe the rules of natural justice in carrying out that review, the result, if the county court had jurisdiction to entertain a defence based on the invalidity of the housing authority’s review, would very probably be that the tenant would become a secure tenant. This is because the county court would foreseeably only be able to give effect to the invalidity of the housing authority’s review by giving judgment for the tenant in the possession action, and that, subject to any possible appeal, would cause the proceedings to be finally determined in the tenant’s favour rather than by the making of an order for possession. Under s.130(2) the tenancy would cease to be an introductory tenancy and if, as is probable, the trial period of one year from the grant of the introductory tenancy came to an end before the housing authority had time to start a second action for possession, a secure tenancy would have come into existence. Clearly this is not a desirable result, nor indeed one which Parliament in enacting the probationary regime of introductory tenancies under Part V of the Act, can have intended. No such result would follow if the county court only granted an adjournment of the possession proceedings to enable judicial review proceedings to be taken by the tenant. It may be doubted whether those proceedings, on the hypothesis which I have postulated of the tenant being thoroughly unsatisfactory, would get beyond the initial stage of applying for leave to be granted for judicial review proceedings to be taken. If they did not do so, the adjournment in the County Court would come to an end and a possession order would be made without the introductory tenancy becoming a secure tenancy. However, even if the judicial review proceedings were successful, so that the housing authority was required to conduct a further review, the possession proceedings would remain adjourned until a proper review was conducted, which, if it resulted in a decision to continue the proceedings for possession, would result in the adjournment in the county court coming to an end and the making of a possession order. In any event it would only be if the review led to a decision to abandon the possession action that the introductory tenancy would be converted into a secure tenancy. These considerations support the conclusion that the framework of Part V of the Act is such that it cannot have been intended to give the county court power to determine the validity of a defence based on a failure by a housing authority properly to conduct the review required by s.129(2) of the Act.

The apparent purpose of Part V of the Act, and the concept which it introduced of an introductory tenancy, was to restrict, rather than to enlarge, the security of tenure of the tenant under such a tenancy, as compared with that of a tenant under a secure tenancy. The latter can only be evicted if a court is satisfied that one or other of various statutory requirements, such as non-payment of rent, has been proved and, in most cases, that it would be reasonable to make an order for possession. This contrasts sharply with the minimal requirements of s.127(2) of the Act. Mr Arden Q.C. for the Council submitted that Part V of the Act was designed to enable a housing authority to get rid of undesirable tenants quickly, not only in the interests of the housing authority so as to enable it to reallocate the premises to more suitable candidates for housing, but also in the interests of neighbouring tenants of the housing authority who often suffer from the nuisances and disturbances caused by unruly tenants. So far these submissions seem to me well founded, but he went further and submitted that the interpretation which he supported, namely that, if there is to be a challenge to a housing authority’s performance of its duty under s.129(2) to review, at a tenant’s request, a decision to take proceedings to evict the tenant, that must be done by judicial review, would lead to a swifter and more effective procedure than if the county court dealt with any defence based on a failure to comply with the public law duty to conduct a review of the decision to evict. In particular he pointed to the difficulty in practice of getting oral testimony of nuisances committed by unruly and threatening tenants, which would be needed if the county court was to investigate allegations of nuisance, as opposed to the affidavit evidence from housing authority officers which could be far more easily obtained for judicial review proceedings.

I am unpersuaded that proceedings by way of judicial review coupled with a stay of county court proceedings for possession could properly be regarded as anything other than a slow and cumbersome process. Indeed it is to my mind regrettable that Parliament should have given only such minimal powers to the county court by s.138(1) of the Act, when read with s.127(2), but for the reasons which I have given that does appear to be the clear effect of those provisions. This sits ill with the tendency evinced by Part VII of the Act to confer upon the county court powers wide enough to enable it to deal with public law defences in connection with proceedings under the Housing Acts. It would of course be necessary to confer the necessary flexibility to avoid introductory tenancies becoming secure tenancies where such a result was undesirable. These are however matters with which the legislature will, if it thinks fit, no doubt deal. As it is, under the Act as it stands, I consider that this appeal should be allowed and in view of the fact that the validity of the notice under s.128 of the Act is not challenged the respondents’ defence should be struck out.

LORD JUSTICE JUDGE:

I agree.

It was agreed in argument that as a result of the proper construction of Part V of the Housing Act 1996 decisions made by the Council in compliance with section 129(2) are themselves susceptible to judicial review. Yet simultaneously, in section 204(1), Parliament entrusted the County Court with jurisdiction to consider appeals based on “any point of law arising” from reviews of decisions in relation to homelessness made under various sections of Part VII of the same Act and identified in section 202(1).

This inconsistency should be rectified as soon as possible by legislation. I can see no disadvantage, and considerable benefits, in granting the County Court express power to exercise an identical jurisdiction in relation to reviews under Part V of the Act to those granted under Part VII. All the relevant issues could then be considered before the County Court. The reduction in time, expense and complication of seeking judicial review in the High Court in relation to homelessness in Part VII should apply equally to introductory tenancies under Part V.

LORD JUSTICE AULD: I also agree that the appeal should be allowed.