England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAINES COUNTY COURT
District Judge Trigg
3BO03394

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th October 2017

Lord Justice Lewison:

1. On 13 October 2016, on the application of the London Borough of Hounslow, DJ Trigg made a possession order against one of its secure tenants, Mr Aaron Harris. She did so on a new mandatory ground for possession inserted into the Housing Act 1985 ("the 1985 Act") by the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). The question on this appeal is whether Hounslow's actions can be successfully challenged on public law grounds.
2. The 2014 Act introduced a large number of remedies for anti-social behaviour. The overall purpose of the legislation was to put victims first. Two closely allied remedies were a closure order which can be made by a magistrates' court, and a new mandatory ground for possession of premises let under a secure tenancy in a case where a closure order has been made. Both these remedies were designed to be speedy.
3. The preliminary to the making of a closure order is the service of a closure notice. This is a notice served where a police inspector or a local authority is satisfied on reasonable grounds that that there has been, or (if the notice is not issued) is likely soon to be, disorder near particular premises associated with the use of those premises and that the notice is necessary to prevent the nuisance from continuing. The closure notice may prohibit access to the premises by anyone except those who habitually live there. The service of a closure notice is followed by an application to the magistrates for the making of a closure order. An indication of the need for speed is the statutory requirement in section 80 (3) of the 2014 Act that the magistrates must hear the application not later than 48 hours after the service of the closure notice. The magistrates may make a closure order if satisfied that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring: section 80 (5). The effect of a closure order prohibits access to the premises for up to three months, and (unlike a closure notice) it may prohibit access even by persons who habitually live there. There is a right of appeal to the Crown Court against the making of a closure order. Any appeal must be made within 21 days of the decision: section 84 (5).
4. In tandem with the introduction of a closure order, the 1985 Act was amended to introduce a new mandatory ground for possession. As section 2.8 of statutory guidance issued by the Home Office explains, it applies where criminality or anti-social behaviour "has already been proven by another court." The same guidance explained that:

"The purpose of the new absolute ground for possession is to speed up the possession process in cases where anti-social behaviour or criminality has been already been proven by another court. As the landlord will no longer need to prove that it is reasonable to grant possession, the court will be more likely to determine cases in a single, short hearing. This will strike a better balance between the rights of victims and perpetrators, and provide swifter relief for victims, witnesses and the community. The new absolute ground is intended for the most serious cases of antisocial behaviour and landlords should ensure that the ground is used selectively."

5. Before applying to court the landlord must serve notice on the tenant under section 83ZA of the 1985 Act. This provides, so far as relevant:

"(1) This section applies in relation to proceedings for possession of a dwelling-house under section 84A (absolute ground for possession for anti-social behaviour) …

(2) The court must not entertain the proceedings unless the landlord has served on the tenant a notice under this section.

(3) The notice must—

(a) state that the court will be asked to make an order under section 84A for the possession of the dwelling-house,

(b) set out the reasons for the landlord's decision to apply for the order (including the condition or conditions in section 84A on which the landlord proposes to rely), and

(c) inform the tenant of any right that the tenant may have under section 85ZA to request a review of the landlord's decision and of the time within which the request must be made.

…

(7) A notice which states that the landlord proposes to rely upon condition 4 in section 84A—

(a) must also state the closure order concerned, and

(b) must be served on the tenant within—

(i) the period of 3 months beginning with the day on which the closure order was made, or

(ii) if there is an appeal against the making of the order, the period of 3 months beginning with the day on which the appeal is finally determined, abandoned or withdrawn.

(8) A notice under this section must also inform the tenant that, if the tenant needs help or advice about the notice and what to do about it, the tenant should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.

(9) The notice—

(a) must also specify the date after which proceedings for the possession of the dwelling-house may be begun, and

(b) ceases to be in force 12 months after the date so specified.

(10) The date specified in accordance with subsection (9)(a) must not be earlier than—

(a) in the case of a periodic tenancy, the date on which the tenancy could, apart from this Part, be brought to an end by notice to quit given by the landlord on the same day as the notice under this section;

(b) in the case of a secure tenancy for a term certain, one month after the date of the service of the notice."

6. Section 84A of the 1985 Act provides, so far as relevant:

"(1) If the court is satisfied that any of the following conditions is met, it must make an order for the possession of a dwelling-house let under a secure tenancy.

This is subject to subsection (2) (and to any available defence based on the tenant's Convention rights, within the meaning of the Human Rights Act 1998).

(2) Subsection (1) applies only where the landlord has complied with any obligations it has under section 85ZA (review of decision to seek possession).

…

(6) Condition 4 is that—

(a) the dwelling-house is or has been subject to a closure order under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014, and

(b) access to the dwelling-house has been prohibited (under the closure order or under a closure notice issued under section 76 of that Act) for a continuous period of more than 48 hours."

7. As foreshadowed both by section 83ZA(3) and section 84A (2), section 85ZA gives certain tenants the right to request a review of a landlord's decision to seek a possession order. Those tenants include tenants of a local housing authority. Section 85ZA provides, so far as relevant:

"(2) Such a request must be made in writing before the end of the period of 7 days beginning with the day on which the notice under section 83ZA is served.

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

(4) The landlord must notify the tenant in writing of the decision on the review.

(5) If the decision is to confirm the original decision, the landlord must also notify the tenant of the reasons for the decision.

(6) The review must be carried out, and the tenant notified, before the day specified in the notice under section 83ZA as the day after which proceedings for the possession of the dwelling-house may be begun."

8. The detailed procedure applicable to the review is laid down by the Absolute Ground for Possession for Anti-social Behaviour (Review Procedure) (England) Regulations 2014. Similar regulations apply to Wales. Regulation 2 deals with the content of the application for a review. It must state (among other things) the tenant's name and address; the grounds on which the review is sought; whether the tenant requires an oral hearing and whether the tenant is willing to receive communications by e-mail. If the review is to be conducted without a hearing, the tenant has a minimum of five days in which to make representations: regulation 5. If there is to be a hearing, the landlord must notify the tenant of the date, time and place of the hearing, which must not be earlier than five days after the tenant receives the notification: regulation 6. The landlord has power, at the tenant's request, to postpone the hearing to a later date. The hearing itself may also be adjourned under regulation 9.
9. Mr Harris held his flat under a secure weekly tenancy. Hounslow had been receiving frequent complaints about noise coming from his flat from about October 2014. There were also complaints about excessive numbers of visitors loitering in the stairwells, smoking, drinking and drug use. Hounslow first tried to deal with the problem by serving a noise abatement notice; and then by entering into an acceptable behaviour contract with Mr Harris. But the complaints continued. Eventually the police applied to Feltham magistrates' court for a three month closure order. On 17 November 2015 the court made such an order, stating that it was satisfied that:

"a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises … and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring."

10. On 23 December 2015 Hounslow served Mr Harris with a notice seeking possession. The form of the notice complied with all the requirements of section 83ZA of the 1985 Act. It stated that court proceedings for possession might be begun after Monday 25 January 2016. In particular the notice also stated (in bold type):

"You have the right to request a review of the London Borough of Hounslow's decision to seek an order for possession of your dwelling-house. A request for a review must be made in writing before the end of the period of 7 days beginning with the day on which this Notice is served, namely by Wednesday 30^th December 2015."

11. Hounslow heard nothing from Mr Harris by 30 December. However, on 4 January 2016 Ash Solicitors, acting on his behalf, e-mailed Hounslow's housing department. The material part of the e-mail read:

"We can confirm that we are in the process of requesting information from the Police regarding the Closure Order against the property. We would request an extension of time in order to request a review of your authority's decision to seek an order for possession against our client."

12. Having not received a reply, Ash e-mailed again on 18 January. That e-mail said:

"Further to your [sic] email dated 04 January 2016, whereby we requested a review of your authority's decision to seek an order for possession against our client. We can confirm that we have not yet received a response from you with regards to our request.

We would request your confirmation that your authority will review its decision to seek an order for possession against our client."

13. Hounslow's legal department replied on the same day. The reply asserted that there was nothing that required Mr Harris to seek legal advice before requesting a review. The extension of time was refused. There was no further communication from Ash before 25 January 2016.
14. Hounslow issued proceedings on 29 January 2016, by which time the only further communication from Ash was simply confirmation that they had instructions to accept service. On 16 August 2016 Hounslow offered to review its decision. The review was completed on 25 August. The upshot was that Hounslow confirmed its decision to proceed. There has been no challenge to that decision.
15. DJ Trigg held:

i) There was no valid public law challenge to Hounslow's decision to serve the notice seeking possession on 23 December 2015.

ii) However, once the request for a review had been made Hounslow ought to have granted an extension of time or (if it had no power to do so) ought to have withdrawn the notice seeking possession and to have served a fresh notice thus starting the clock again.

iii) However, the fact that Hounslow did carry out a review during the pendency of the proceedings cured any procedural defect, with the consequence that Hounslow was entitled to the possession order.

16. There is no appeal against the first of DJ Trigg's conclusions. Hounslow argues that it had no power to extend time; that even if it did have such power its refusal to exercise it was lawful; and that DJ Trigg was right to say that any procedural defect was capable of cure by subsequent action. Mr Harris, on the other hand, argues that DJ Trigg was right to say that Hounslow's refusal of an extension of time, or its failure to withdraw the notice was unlawful and, moreover, that section 85ZA (6) has the effect that a failure to carry out the review before beginning proceedings cannot be retrospectively cured.
17. The first question is whether Hounslow had the power to extend time. I do not think that this is quite the right question. Hounslow cannot "extend time" in the sense of altering the time limit laid down by the 1985 Act. The real question is whether Hounslow had the power to agree to accept an out of time request for a statutory review; or, to put it another way, to waive compliance with the statutory time limit. I have already drawn attention to the statutory guidance which emphasises the speed of the procedure. This is not only reflected in the provisions relating to closure orders but also in the 1985 Act and the Regulations. Thus the notice given under section 83ZA must be served within three months of the making of the closure order. That section also contemplates that the notice will give a date after which proceedings for possession may be begun. The purpose of the procedure is to deal with the most serious cases of anti-social behaviour, which necessarily affect the tenant's neighbours, and it is likely therefore that a responsible landlord will specify as short a time as possible. Since most secure tenancies are held on weekly tenancies, that date is likely to be 28 days after the giving of the notice. But it is also worthy of note that in the case of a fixed term tenancy (of whatever length) the landlord is entitled to give a month's notice. It must also not be forgotten that before the process is set in train there will already have been a hearing in the magistrates' court which will have provided a forum for the determination of any contested facts. The date specified in the notice under section 83ZA is the long-stop date for completion of the review, as section 85ZA (6) makes clear. It must follow that, unless the landlord has power to extend that date also, any extension of time for requesting the review might severely curtail the time permitted for the review. There is 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 must be concluded. It is common ground that the landlord has no power to extend the time specified in section 85ZA (6) for completion of the review. That is a strong contextual indication that the seven day period for triggering a statutory review cannot be extended or waived either.
18. In some cases the courts have held that where a statutory time limit is imposed for the benefit of one party alone, the party for whose benefit the time limit is imposed may validly waive compliance with it. In Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 for example (which concerned time limits for making an application for a new business tenancy) Lord Diplock explained at 881 that:

"…where in any Act which merely regulates the rights and obligations of private parties inter se, requirements to be complied with by one of those parties are imposed for the sole benefit of the other party, it would be inconsistent with their purpose if the party intended to be benefited were not entitled to dispense with the other party's compliance in circumstances where it was in his own interest to do so." (Emphasis added)

19. However, running alongside this principle is a different one. Where the right in question engages the public interest, or the interests of third parties, it is not open to an individual to waive compliance: see Broome's Legal Maxims p 480-483. It is clear, in this case, that the purpose of the mandatory ground for possession is to provide "swifter relief for victims, witnesses and the community". In my judgment that purpose plainly engages the public interest. In other words, the seven day time limit was not introduced "for the sole benefit" of the landlord.
20. The text of the statute leads to the same conclusion. The landlord's obligation to conduct the review only arises under section 85ZA (3) if a request for a review is "duly" made. The only requirement contained in the primary legislation (as opposed to the regulations) is that the request must be made within seven days. It must follow that a request is only "duly" made if it is made within that seven day period. This feeds into section 84A (2) which permits reliance on the mandatory ground only where the landlord has complied with any obligations "it has under section 85ZA". If the landlord has no obligations under section 85ZA, because no request for a review has been made in time, then section 84A (2) cannot bite.
21. Mr Katz submitted on behalf of Mr Harris that the right to a review was an integral part of the package of reforms which introduced the mandatory ground for possession. However, in my judgment, that is over-stated. The mandatory ground for possession applies to all secure tenancies. But the statutory right to review is restricted to tenants of local housing authorities and housing action trusts: section 85ZA (1). There are many other landlords whose tenants are secure tenants: housing associations and development corporations among them: section 79. So not all secure tenants are entitled to a statutory review. It must follow, therefore, that the right to a statutory review is not necessarily an integral part of the reforms. Mr Katz also submitted that there was a difference in kind between the seven day time limit imposed by section 85ZA (2) and the time limit imposed by section 85ZA (6). Whereas the former is unequivocally imposed by the Act itself, the latter is a function of the choice of date that the landlord inserts in the notice seeking possession. If a landlord is concerned that a late request for a review might not leave enough time in which to conduct the review, its remedy lies in its own hands: it should simply specify a later date in the notice seeking possession. I do not accept this submission. First, the very fact that the Act itself lays down the seven day time limit underlines its importance. Second, given that the procedure in question is intended for the most serious cases of anti-social behaviour it is unrealistic to suppose that landlords will allow more time than is needed on the off-chance that the tenant will fail to exercise the statutory right which the legislation requires to be explained to him in the notice itself. The victims of the anti-social behaviour would be rightly concerned if their landlord was not doing everything possible to remove as quickly as possible what Mr Katz rightly characterised as a blight on housing estates up and down the country. Third, it would place unnecessary strain on local authority resources if it had to deal on a case by case basis with applications for extensions of time. Fourth, the application of the seven day time limit is a clear, readily ascertainable and workable rule.
22. I would hold, therefore, that a tenant who requests a statutory review outside the seven day period laid down by section 85ZA (2) is not entitled to a statutory review and the landlord has no obligation or power to conduct one. It follows that the fetter imposed by section 84A (2) does not apply.
23. On the basis that, as I would hold, the landlord has no power to conduct a statutory review if the tenant is out of time in making his request, Mr Katz argued that the landlord had an obligation to serve a fresh notice seeking possession if the tenant's failure to make a request in time was outside his control. The service of a fresh notice would give the tenant a further window of seven days in which to request a statutory review. I reject this submission. If, as I consider, the landlord has no power to conduct a statutory review if a request is made out of time, that is because Parliament has made that choice. It has made that choice 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.
24. In addition that submission fails on the facts of the case. In the first place, I cannot see that a landlord could have a duty to serve a fresh notice unless it was asked to do so. No such request was ever made. Second, I do not consider that a landlord could have a duty to serve a fresh notice unless there was some ground for supposing that a review might lead to a different decision being made, and for that purpose a landlord would need to know the grounds upon which the review was being sought (as indeed regulation 2 requires). I do not criticise Ash for not having put forward any grounds for review in their first communication of 4 January. They had only just been instructed. But Hounslow did not reject the request on 4 January. Ash wrote again on 18 January. It is worth noting that the gap between the two communications was 14 days: twice as long as the period allowed for requesting a review, and even in that second communication Ash put forward no ground to support the request. I do not consider that there can be any serious criticism of Hounslow for rejecting the request for a review in the absence of any indication of the grounds upon which the review was requested. There was no good reason for Hounslow to serve a fresh notice.
25. Mr Katz argued that once the seven day time limit had expired the landlord could not simply shut its eyes. Ms Conlan, for Hounslow, agreed. But her submission was that although Mr Harris was not entitled to a statutory review, Hounslow would need to take a series of decisions in the course of the proceedings, any of which might be the subject of challenge on public law grounds. She relied in support of that submission on the judgment of Waller LJ in Central Bedfordshire Council v Housing Action Zone Ltd [2009] EWCA Civ 613; [2010] 1 WLR 446 in which he said at [40]:

"An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an article 8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed, if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why, if any one of these decisions could be shown to be "unreasonable" whatever that means (and I will come back to that), it could not be attacked."

26. In his concurring judgment Lloyd LJ said at [62]:

"… the issue is whether the decision of the council to recover possession was an improper exercise of its powers at common law. In the circumstances of this case, I agree with Waller LJ that this question should be applied by reference to the council's decision to press for a possession order at trial, rather than at the outset when it knew little or nothing of the circumstances of the defendants. I recognise that, at that stage, there may not have been a formal decision, and that the decision to proceed, whether express or implicit, is likely to have been taken at a delegated level, not by members of the council in person. Any lack of formality at that stage is not a defect in itself."

27. This, submitted Ms Conlan, was the general application of public law principles to any decision taken by a public authority. It was emphatically not a statutory review under section 85ZA. Consequently 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. I agree; and I add that the general application of public law principles to decisions of a local authority landlord must not be allowed to undermine the legislative scheme of this mandatory ground for possession.
28. My conclusions on these issues are dispositive of the appeal. The remaining issues do not arise. Accordingly, for these reasons, which differ from those given by DJ Trigg, I would dismiss the appeal.

Lord Justice Flaux:

29. I agree.

Lord Justice Gross:

30. I also agree.