England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30th January 2004

Friday, 30th January 2004.
1. MR JUSTICE MCCOMBE: This is an application for judicial review brought by Miss Sharon Laporte, whom I will call "Miss Laporte", against the London Borough of Newham, which I will call "Newham". Miss Laporte challenges the decision of Newham made on 16th September 2002 and thereafter confirmed in October 2002 and April 2003 to confirm the decision originally said to have been taken in August 2002 to apply to recover possession of Miss Laporte's home. The relevant premises are known as 132 Lonsdale Close, London, E6. Miss Laporte's broad complaint is that the bringing of proceedings to recover possession was unlawful having regard to the course of the procedures adopted by Newham in the run up to the initiation of proceedings in the Bow County Court on 16th October 2002.
2. The background facts are as follows. By a tenancy agreement of 26th November 2001, Newham granted Miss Laporte a weekly tenancy of the premises at a rent of £57.48 per week, payable weekly in advance. The tenancy was granted under the provisions of chapter 1 part V of the Housing Act 1996. The tenancy was what is called in that Act "an introductory tenancy". Until the end of a statutory trial period of one year, the tenancy does not become a secure tenancy with all the ramifications that that carries. The principal differences are explained by Waller LJ in the case of R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 at page 1441-paragraph 15 of the judgment.
3. During the period of introductory tenancy, if possession proceedings are brought, the Court has to make an order unless it finds that the conditions of section 128 of the 1996 Act apply. Guidance issued to councils under the Act provide that an introductory tenancy will usually be brought to an end if the tenant has broken the terms of the tenancy agreement. The Act makes provision in section 128 for the service of a notice by a landlord stating that the court is to be asked to make a possession order and specifying the landlord's reasons for deciding to ask for such an order. Such a decision is then open to review on the application of the tenant, and, by way of regulations, the review must be conducted by an officer or officers more senior than the original decision-maker.
4. Subject to that, the decision, if confirmed, can only be challenged on judicial review in this court. Otherwise, the County Court that hears the possession proceedings is obliged to make a possession order: see section 127 subsection (2) of the Act.
5. In this case, it appears that the rent element payable under the tenancy was at all material times provided directly to Newham by the credit to the rent account of Miss Laporte of housing benefit to which she was entitled. There remained, however, an element of just over £3 a week that was payable in respect of water services. By June 2002, arrears of payment of this additional sum amounted to £67.76, equating to 21 weeks of arrears out of a total tenancy period of 31 weeks. Accordingly, Newham served upon Miss Laporte a notice under section 128 stating that the Court would be asking for a possession order. The reason specified was failure to pay rent and water charges and other payments to the Council.
6. Miss Laporte requested a review of the decision. This was received outside the statutory time limit stipulated, but Newham agreed nonetheless to entertain it. Therefore, nothing turns on this late request.
7. A hearing was fixed for 19th July 2002 which was notified to Miss Laporte by a letter of 11th July 2002. By a letter dated the following day, Newham wrote further to Miss Laporte in the following terms:

"The notice had been served on the grounds you have failed to make rent payments in line with your tenancy terms and conditions. However, I have been made aware that the Council is currently investigating other alleged breaches of your tenancy conditions.

"Because of this investigation, I am writing to advise the panel will now take place on Thursday 1st August from 11.00 onwards. We will write to you within the next 10 days to confirm the allegations that we are investigating. This will allow you time to consider the issues we wish to discuss with you at the review panel and prepare any defence or evidence you wish us to consider in deciding whether we should continue with action against your tenancy."

8. On 22nd July, Newham wrote again to Miss Laporte listing the allegations of nuisance being investigated. These consisted primarily of allegations of antisocial activity by Miss Laporte's son. Eight such incidents were identified and one other case of nuisance. The letter concluded in the following terms:

"These allegations will be raised with you at the Review Hearing on Thursday 1st August 2002."

9. The review hearing was duly held on 1st August and was conducted by two of Newham's officers, Miss Julie Beveridge and Mr Graeme Bosley. Miss Laporte did not attend. She says that she did not receive any notification of the date. However, whether she did so or not was not explored before me and no issue was taken by either side upon that matter.
10. The contemporaneous computer note of the review hearing conducted by those officials was before me and is in the following terms:

"Panel held at 11. Tenant failed to attend. Review conducted by Graeme Bosley and Julie Beveridge.

"Rent arrears have continued to accrue on the account - since notice served, tenant has made 2 payments but not sufficient payments since then. Tenant offered arrangement in February - knew what had to be paid but has failed to meet obligations.

"In terms of complaints of nuisance, several diary sheets have been completed by neighbours. Warning letter has been issued by Community Housing Officer. Recent diary issues completed by complainant indicate frequency and severity of incidents have reduced but complaints against son are still continuing.

"As tenant failed to appear at review panel, not able to discuss options that can be pursued to resolve situation. As a result of this, and tenant's failure to maintain account, agreed action against tenant should continue."

11. On 5th August, Miss Beveridge wrote to Miss Laporte to inform her of the result of the panel hearing and she wrote in the following terms:

"On 12 July 2002 I wrote to you confirming a panel would be held on 1 August 2002 to review the decision to serve a notice and seek an order for possession against your tenancy. As you are aware, the Notice to terminate was served on you as a result of rent arrears accruing on your rent account. However, other alleged breaches of your tenancy conditions were to be discussed at the panel, details of which were issued to you in writing before the panel date.

"Unfortunately you did not attend the panel or contact us to advise why you could not attend. The panel considered your rent account history and the allegations of nuisance that have been made against you. Having considered the circumstances, the decision of the panel is that the Council had acted correctly in serving you with a Notice to terminate, on the basis that you broke your tenancy conditions.

"The Council may now ask the Court to make an Order ending your tenancy without further reference to yourself.

"Should you wish to discuss this matter further, please contact Ms Williams at the Rents and Enforcement Unit on the above number."

12. It is clear from those two documents that the review determined to confirm the decision originally taken to seek a possession order both because of the rent arrears and the nuisance allegations. In evidence to this court, Miss Beveridge says she would have made the same decision even without the nuisance allegations.
13. It appears that shortly after the letter of 5th August 2002 was received, Miss Laporte's mother contacted Miss Beveridge, and Miss Beveridge agreed to meet with Miss Laporte and her mother to discuss the situation. An appointment was made for 15th August. The note of that meeting, which was apparently attended by Miss Laporte, was also before me. That is in the following terms:

"[Miss Beveridge and Mr Bosley] ... interviewed Miss Laporte and mother, Mrs Naidoo. Tenant acknowledged had failed to pay rent due and had broken agreements but has recently taken responsibility for sorting out debts. Unlikely to be able to clear arrears due in lump sum. Discussed complaints of nuisance. Tenant stated son had accepted he needed to stop causing nuisance and had taken steps to do so. Avoiding the friends who were also involved which has led to some problems. Tenant stated her son had gone to stay with grandmother and disputed had been involved with any incidents recently. Only returned recently to get clothes. Believes other youths involved still coming to the block and son is getting the blame.

"Tenant agreed son will be willing to look at good behaviour contract. Tenant claims verbally abused by neighbours, one on first floor has told her she wants her out. Advised we will look further into nuisance issues and write to her to advise action we will be taking."

14. On 16th September, Miss Beveridge wrote again stating Newham's refusal to withdraw the review panel's decision of 1st August. That letter read as follows:

"I am writing further to the meeting held on 15th August to discuss your tenancy of 132 Lonsdale Avenue.

"As you are aware, on 14 June 2002 a Notice to terminate your tenancy was served on you and at a review hearing held on 1 August 2002 the decision to terminate your tenancy was upheld. The decision was upheld on the grounds you had failed to maintain your rent account and persons at your address had been responsible for causing nuisance to other tenants, thereby breaking your tenancy conditions. We agreed to meet with you on 15 August to allow you a further opportunity to discuss the service of the Notice and consider whether the action taken was appropriate."

15. The letter then proceeds to discuss what had been discussed at the meeting and continues in the following terms:

"I can confirm since our discussion we have had an opportunity to review the recent complaints made against your tenancy. I can confirm the number of complaints have reduced - however, on 26 August your son Jason was seen attempting to break into sheds outside of the block. A further complaint has been made that on 30 August Jason had banged on a neighbour's door. It should also be noted that since our meeting you have failed to maintain payments to your rent account and the arrears have increased to £75.84 as of 15 September 2002.

"Given the above I regret to advise the decision taken by the review panel will not be withdrawn and court action against your tenancy may still continue."

16. In her evidence to this court, Miss Beveridge acknowledges that she had erroneously called Miss Laporte's son "Jason" rather than his true name, James, and that another member of Newham staff has since drawn to her attention that one of the later incidents referred to in the letter of 16th September had in fact involved a boy by the name of Jason who was not Miss Laporte's son.
17. By this stage, the arrears on the account were in the sum of £79.02. Miss Beveridge says to this court that even without the further complaints, she would have taken the same decision to confirm the decision of the review panel.
18. In the result, proceedings for possession were begun in the county court on 16th October. The first hearing was in January 2003 when the learned judge granted to Miss Laporte an adjournment to enable her to seek legal advice. It seems to have been a fairly generous adjournment because it was in March 2003 that Miss Laporte consulted her present solicitors. These proceedings for judicial review were issued on 20th June 2003. There is no outstanding point as to the delay of the issue of proceedings in this court. Permission to apply was granted at an oral hearing on 17th October 2003.
19. The complaints made on Miss Laporte's behalf are essentially twofold. First, it is said that in confirming the decision to seek possession on 1st August 2002, Newham relied upon grounds additional to those specified in its notice under section 128 of the Act. Secondly, it is objected that in reaching its decision on 16th September 2002 not to withdraw the review decision, Newham relied upon two further allegations of nuisance against Miss Laporte's son which had not formed part of the original decision-making grounds and had never been put to Miss Laporte. Moreover, as is now acknowledged, one of those later allegations proved to be unfounded.
20. As I have indicated, Miss Beveridge says in evidence that even without the further complaints, the same decision would have been reached, because of the increase of arrears. She accepted that she gave her evidence with the benefit of hindsight, and knowing the challenges to the decisions now made. She was, however, politely adamant that she was confident that the decision would nonetheless have been the same.
21. Analysing the problem, in my view, Mr Green for Newham is right to identify the three different situations that emerged either in this case or from earlier authorities. First, there is the case where following service of the notice under section 128, the grounds of the decision so given subsist when proceedings are issued, and a further incident of substantially the same nature is also available, and those reinforce the landlord's decision to begin the proceedings. He submitted that an example of such a case is to be found in Cardiff City Council v Stone [2003] EWCA Civ 298 or [2003] HLR 47. There is no problem in such a case with relying on the original section 128 notice.
22. Secondly, there is a case such as the present, where by the time of the decision on review, the decision to issue proceedings is taken on the original grounds which persist, and further very different grounds have also been put, based upon which the landlord decides to proceed.
23. Thirdly, there is the case where the landlord has withdrawn the original notice, then learns of other grounds, and seeks to rely upon the original notice to support a possession claim on the new grounds. It is submitted this is the analysis of the landlord's failure to withstand a challenge to the proceedings in Forbes v London Borough of Lambeth [2003] EWHC 222 (Admin), or 2003 HLR page 49. The landlord failed in Forbes' case because by the time of the operative decision to begin proceedings, there was no extant notice under section 128 at all. On analysis, it was held not to have been confirmed on review. The argument had turned upon whether the original decision was extant or not. Counsel there had been contending in addition that if there was an extant decision properly notified under section 128, then its later implementation, even for different reasons, would be valid.
24. Crane J considered what the decision would be if this alternative was a true analysis of the situation. Clearly his remarks are obiter dicta. In looking at that decision, Crane J said this at the end of paragraph 41:

"If the relevant decision were the original decision, a further notice would not be required by section 128 itself if the later action were merely an implementation of the original decision for different reasons."

25. In paragraph 43 he continued:

"In such circumstances, would the Council's decision require a further notice and a further opportunity for a review in order to be compliant with Articles 6 and 8 [of the European Convention of Human Rights] even if section 128 did not so require? I consider that at least an opportunity for review would be required. The decision of the Court of Appeal in McLellan proceeded on the basis that the review procedure, combined with the availability of judicial review, rendered the scheme of the Act compliant with Articles 6 and 8. That necessarily involved an opportunity to the tenant not only to question the alleged facts, but, crucially, to argue that on the available facts, that it was not reasonable to require possession. In my judgment, where the reasons for the decision have changed, as this did here, the scheme of the Act is compliant only if the Council provide some opportunity for a further review. It would not necessarily matter that the notice did not comply with section 128 if the substance of the allegations was conveyed and a review made available."

26. Crane J was clearly of the view that the opportunity to have the additional material considered on review was necessary to render the procedure compliant with the European Convention of Human Rights. He did not consider expressly whether the terms of section 128 itself required that a new notice complying with that section of the Act was required. On any footing, in the present case it would have been open to Newham on 22nd July 2002, the date on which it notified the further grounds to Miss Laporte, to serve upon Miss Laporte a further notice under section 128 specifying the nuisance allegations outlined in that letter. The best that Miss Laporte could have done would have been to request a review of that decision which would have enabled her to have the benefit of precisely the same review of all the same reasons which she had in fact received on 1st August 2002 and also which was reconsidered in her presence on 15th August 2002.
27. On these facts, it seems to me that the procedure sufficiently complied with the conditions envisaged by Crane J in his decision in paragraph 45 of his judgment in Forbes. It is clear that Crane J was principally considering what was required to render the procedure compliant with Articles 6 and 8 of the Convention. He was not expressly basing his decision upon an analysis of sections 128 and 129 of the 1996 Act themselves. For my own part, it seems that where the Act requires a notice of decision to be given and for the notice to set out the reasons for that decision, the rights to a review of the decision would entail that the review be confined to the reasons specified in the notice. It would not otherwise be a renewal of "the original decision" (see section 129(5)) if it became a review of a later decision to rely on additional reasons.
28. I would be inclined to hold that in the circumstances such as arose in this case, a new notice was strictly required under section 128 specifying the additional grounds. Obviously the two reviews would be conducted on precisely the same occasion as occurred in this case.
29. In practice, however, I am quite satisfied that there has been no material prejudice for Miss Laporte for the following reasons: (1) she was given the details of the additional allegations by the letter of 22nd July; (2) these were considered at the review on 1st August; (3) they were reconsidered at the meeting of 15th August; (4) there was nothing to shake the original decision: on 16th September, the concerns that existed on 15th August subsisted and the arrears increased. There was clearly one additional valid nuisance complaint in addition to the previous matters which contemporaneously Miss Laporte had accepted as being the substance of the meeting of 15th August. While accepting the intrinsic validity of the point made by Mr Watkinson for Miss Laporte, that Mrs Beveridge's evidence was given with the great benefit of hindsight, I accept her evidence that even without the nuisance allegations, the arrears in rent would have led to the same decision; (6) the arrears grounds were entirely valid in themselves and it would be unjust to my mind to grant relief when Miss Laporte had every opportunity to meet not only those allegations but the additional allegations also. No injustice was caused by the non-service of the further notice under section 128, even if such a notice should properly have been served.
30. I would therefore decline to grant relief in the exercise of the Court's discretion. I withhold such relief of a substantive order because there has been no real prejudice caused to her by any technical failure to abide by the proper procedures that there may have been.
31. For those reasons, this application is refused.
32. MR GREEN: My Lord, I am grateful for that. In that event, we would seek our costs up to the usual terms, and that our costs be determined.
33. MR JUSTICE MCCOMBE: That must follow, I think.
34. MS SERGIDES: My Lord, yes. We are publicly funded, we ask for our publicly funded costs.
35. MR JUSTICE MCCOMBE: You ask for an assessment of your publicly funded costs, but you do not resist an order in the usual terms that your client pay the costs, subject to the usual agreements?
36. MS SERGIDES: My Lord, no.
37. MR JUSTICE MCCOMBE: I am grateful.
38. MS SERGIDES: My Lord, I would also ask for leave to appeal on the basis, basically there is public interest in this case in that if it is the case that the local authority are able to rely on nuisance allegations which have not previously been raised in a section 128 notice, then that will set a precedence for local authorities in the future. This is a issue of public importance and I ask for leave to appeal on that basis.
39. Secondly, my Lord, I would ask for leave to appeal on the basis that there is some concern that possession proceedings did commence before this matter was resolved, or before the appellant did have an opportunity to argue that it was not valid for a section 128 notice to be relied on, and it did not contain the nuisance allegations. My Lord, on that basis I would argue there is an issue as to public importance and the leave to appeal is asked for.
40. MR JUSTICE MCCOMBE: Thank you. I refuse leave. My decision in the end turns on the exercise of the Court's discretion which I have exercised as to the absence of prejudice to the claimant from any deficiency of procedure that may have been found. So far as the point of public importance is concerned, it seems to me that I have decided that point essentially in Miss Laporte's favour.
41. Thank you both very much indeed. Could you, Ms Sergides, please convey my thanks to Mr Watkinson for his submissions, which I think he heard me say yesterday. I am very grateful to him, and to you too, Mr Green. You heard what I said yesterday.