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
		10 February 2006

1. MR JUSTICE SULLIVAN: In this application for judicial review, the claimant challenges the defendant's decision to continue with possession proceedings in respect of her home. The grounds on which relief is sought contend that the Council's review decision of 19 August 2005 failed to take account of a relevant consideration, namely that the defendant acted illegally in the narrow Wednesbury sense by initiating possession proceedings without having conducted a review under section 129 of the Housing Act 1996, ("the Act"), as requested by the claimant.
2. The history of the matter can be summarised as follows. On 6 October 2003, the defendant granted the claimant a probationary or introductory tenancy of a property, 51 Musbury Street London E1. The claimant fell into rent arrears and on 5 March 2004, the defendant served the claimant with a notice of proceedings for possession, pursuant to section 128 of the Act, ("the notice"). There is no dispute between the parties that the notice complied with all of the requirements set out in section 128. In particular, it set out the date for commencement of court proceedings, 5 April 2004, and said:

"You have the right to request a review of our decision to seek an order for possession. If you decide to seek such a review you must notify us before the end of 21.3.04."

The notice explained how the review would be carried out, that it would be conducted by someone who was of appropriate seniority and not involved in the original decision. At the foot of the notice, there was a statement that all enquiries concerning it should be made to Pamela Wilson, the Rent Arrears Officer. The address given was Cheviot House 227-233 Commercial Road London E1 2BU; the telephone number was given.

3. Attached to the notice was a review request form. That said, in capital letters at the top:

"PLEASE ENSURE THAT THIS FORM IS RETURNED TO THE RENT ARREARS SECTION."

The address was given. The form says:

"I would like a review of the decision to terminate my probationary tenancy."

It enables the person requesting the review to say whether they do or do not wish to attend the review, and there is a section which gives them an opportunity to explain why they believe that the notice should not have been issued. There is a reminder that it must be with the local housing or rent arrears office not more than 14 days after the notice is received, and again the name of the issuing officer, Pamela Wilson and her address, is set out.

4. The notice and the accompanying form were sent under cover of a letter of 5 March 2004 from Miss Wilson. That informed the claimant that she could ask for the decision to be reviewed either in writing or by completing the attached form saying:

"Should you wish to request a review in writing, you must write to your Estate/Rent Arrears Officer, stating your reasons for challenging this decision, within 14 days of the date of the attached Notice ...

If you do not request a review, the matter will be referred to the County Court after the Notice expires in 28 days, and the Court will be obliged to give us possession of your home."

5. At that time, the claimant was in correspondence with the defendant's Housing Benefit Section, because she was contending that there were outstanding housing benefit issues. On 10 March 2004, the claimant wrote a letter addressed to the Stepney/Wapping Community Area Housing Benefit Unit, Cheviot House 277/233 Commercial Road London E1 2BU. So far as relevant, the letter said:

"I am concerned about the warning notice that was issued to me in which you stated that the possession of the property is probationary. I have been homeless for two consecutive years before the Tower Hamlet could rehouse me in permanent accommodation which is 51 Musbury Street. The above address is my permanent and secure tenancy. It is not true that the tenancy is probationary and therefore you are trying to repossess my property on the basis that is probationary.

I would like to review the decision which is unfair and has no ground to breach of tenancy. I have a problem with the housing officer of this nature who tried to make allegation of being anti-social and tried to take legal action to get me out of the property. You have to be aware that this is not right but harassment and crime and if you persist taking any matter subjectively I will have I am afraid to deal with it legally.

You must be wrong in assuming that entitlement to housing benefit is just for people who claim income support. There is no stop to life's change and that does not mean that you can take you opportunity to infringe people's rights on the name of the Mayor and the Burgesses of the London Borough of Tower Hamlets.

I have said already to Mrs Pamela Wilson who made the decision when she came unexpectedly to my home address shouting at me giving an impression to my neighbours that I am of bad character that I am a student on full-time basis at University and I confirmed that to her on the telephone that day but she has chosen to hang up the phone on me.

I would like for the housing benefit unit manager to fix an appointment for me to come down to your office to sort this matter out in a fair and right manner.

I understand that the court is the last resort and I cannot see why you have precipitated in taking an immature decision but which is also wrong.

I am looking forward to hearing from you in due course."

6. The Housing Benefit Department believed that the claimant was requesting a review of her outstanding benefit application, and dealt with her request accordingly. They sent her a letter informing her that she was not entitled to housing benefit or council tax benefit because she was a full-time student. The result of this was that Miss Wilson was unaware of the claimant's letter of 10 March 2004. As far as she was concerned, there had not been a request for a review of the decision to seek an order for possession and so, on 4 June 2004, the defendant issued possession proceedings in the Shoreditch County Court, alleging that there were rent arrears in the sum of £2,167.74.
7. The hearing date was set for 21 July 2004. Prior to that hearing, the claimant wrote to the court saying that she would be unable to attend for health reasons and seeking an adjournment. The question of her having sought a review of the decision was not mentioned. It had not been mentioned by the time the claim for possession came before District Judge Manners. She refused to adjourn the hearing and made a possession order. There has been no attempt to appeal that decision.
8. In due course, the defendant applied for a warrant and a warrant was issued to be enforced on 7 October 2004. By the beginning of October 2004, the claimant had sought advice from solicitors, Steel and Shamash. They got in touch with the council and in a letter dated 4 October 2004 to Miss Wilson said:

"We attach a copy of a letter dated 10.03.04 from our client to the Stepney/Wapping Community area which states, in the fourth paragraph, that 'I would like to review the decision which is unfair...' It appears therefore that contrary to what has been stated, this would amount to our client requesting a review of the council's decision to evict her (as referred to in the notice dated 5th March 2004). Please can you let us know by return what review procedure was undertaken in the light of our client's request. If no such procedure was carried out, in accordance with the provision of the Housing Act 1996 for probationary tenancies, please can you confirm that the review procedure will now be commenced and that, in the meantime, the warrant for eviction will be withdrawn. Should we not have a satisfactory response, by 10.00am on Tuesday 5th October 2004, we will have little option but to advise our client to consider applying for public funding in order to make the appropriate application to the court for the warrant to be suspended/the order made on 21st July 2004, set aside... "

9. The defendant wrote back the same day saying:

"We note Ms Chelfat's letter of 10/3/04. This letter was addressed to an entirely different section and was not on the prescribed form provided for review. This is also the first time that this issue has been raised despite the arrears section raising the issue of review on several occasions and it was not mentioned by her at her interview on 1/10/04."

The letter continued:

"In the interest of fairness, Ms Martin is willing to conduct a review on 15/10/04 at 10.00am. You should submit your reasons for your request for a review in writing to Ms Jane Martin ... [an address is given]. If you and your client wish to attend, you should ensure that you confirm this in writing, alternatively it can be reviewed in your absence.

I would therefore suggest your client make an application at Shoreditch County Court. London Borough of Tower Hamlets is willing to suspend the warrant for 14 days while the review is heard."

10. On 7 October, the warrant was suspended by consent to enable the review to be carried out. Steel and Shamash then submitted detailed representations under cover of a letter of 11 October 2004. The representations were accompanied by a lengthy chronology and a number of grounds were set out. It is fair to observe that those grounds included the following:

"On receiving Miss Chelfat's letter dated 10 March 2004 which it is acknowledged was addressed to Stepney/Wapping Community Area Housing Benefit Unit Cheviot House 227-233 Commercial Road London E1 2BU, the letter could and should have been forwarded to the Rent Arrears Office in the same way as Miss Chelfat's letter dated 5th March had been. It is submitted that the wording of Miss Chelfat's letter 'I would like to review the decision which is unfair' amounted to a clear request that she wished there be a review of the decision to issue possession proceedings, as indicated by the notice dated 5th March 2004.

The review procedure should have been instigated. Ms Chelfat's letter was sent within the 14 day time limit after service of the section 128 notice. There was no requirement that she should request a review in prescribed form. As no review was carried out by 5th April 2004 (the stated date after which any court proceedings would be begun/expiry of the section 128 notice or at all) no possession proceedings should have been issued on the County Court and no possession order made. Any review should have been carried out and the tenant notified of the result before the date specified as the date after which proceedings may be begun (section 129(6) Housing Act 1996). As no possession proceedings should have been issued and no possession order obtained, the trial period/probationary tenancy has now expired."

11. In addition to that submission, there were a large number of further submissions dealing with the merits of the matter and the representations concluded by saying:

"Should the review procedure conclude that issuing possession proceedings was justified, then Ms Chelfat asks that in her current circumstances, given that she is now in receipt of Jobseekers Allowance, housing benefit and has made payments towards the rent/arrears and is looking for work, she be allowed to continue living in the property on paying the current rent plus £26 per week towards the debt under a new probationary tenancy agreement."

12. It was agreed between the parties that the review should be postponed to enable the defendant to investigate the claimant's allegations of disrepair. That took some time and in June 2005, Steel and Shamash requested that the defendant did not carry out its review before 8 July in order to give them time to make further representations. It would seem that they stopped acting for the claimant on 1 August 2005 and, in the event, no further representations were made. The review was carried out by Mr Walsh, the Deputy Area Housing Manager, on 19 August 2005. His letter set out the history of the matter and dealt with the claimant's letter dated 10 March 2004 in these terms:

"Your initial request for a review of the Notice of Proceedings for Possession was sent to the wrong Section, the Council's Housing Benefit Team. I understand that the Housing Benefit Team thought your request was a request to review your housing benefit application. However, in the interest of fairness, it was agreed that a review would be conducted despite the fact that the Council had already obtained a Possession Order."

13. The letter then set out the fact that it had been agreed that the review would not be conducted until after 8 July 2005, so that additional representations could be submitted and recorded that no additional representations had been sent. The letter further set out the total amount owed as at 14 August 2005. Mr Walsh concluded that the action taken by the arrears office was carried out correctly and in accordance with procedure, and said that in the circumstances the Council would be applying for a warrant of possession forthwith.
14. The claim in these proceedings was issued on 1 November 2005. Section 129 of the Act is in these terms:

"(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 the review under this section.

Nothing in the following provisions affects the generality of this power.

(4) Provision may be made by regulations -

(a) Requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and

(b) As to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

(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."

15. For the sake of completeness, I should mention the defendant's guidance to officers dealing with requests for review. The guidance directs readers to Appendix 1 and says:

"The review request form should contain the reasons why the tenant considers the issue of the notice unreasonable. It is vital that this form or any other correspondence requesting a review is forwarded to the reviewing officer as soon as it is received."

Under the heading "Review of Decision", this is said:

"It is vital that all officers who receive notice from the tenant that he/she wishes a review (i.e. personal visit, telephone call, letters) refer the tenant immediately to Terry Damiano - Acting Assistant Director (Housing Management) as the nominated Officer responsible for co-ordinating the initial review process. His office will ensure that all review requests are faxed immediately to the relevant Review Officer. The Review Officer must be a person more senior than the officer who signs the NOPP and who investigates the allegations or manages the tenancy on a day-to-day basis. In practice, this will be the Local Housing Services Managers, with the Area Heads of Housing as back up."

16. Pausing there, this guidance rightly recognises that section 129 does not require what a request for review shall be in any particular form. In that respect, section 129 may be contrasted with section 128 which prescribes a number of matters which must be included in a notice of proceedings for possession. The contrast between the two sections is readily understandable, since the notice will be issued by the landlord who will have access to legal advice, whereas the request for review will be made by the tenant who may well not have access to such advice. Thus, whilst it is helpful for the notice to be accompanied by a form for requesting a review, the tenant is not required to complete the form or to make the request in any particular procedural manner.
17. It seems to me that the guidance is principally directed to arrears officers, such as Ms Wilson, who would be expected to be the recipients of requests for reviews and, in effect, is advising them to pass on those requests so that they can be co-ordinated by the Assistant Director, Housing Management. The guidance is certainly not directed at the particular situation that arose in this case where the request for a review was sent not to a rent arrears officer, but to another department of the council, albeit housed within the same building, the Housing Benefit Unit.
18. No doubt if the housing benefit unit had not been in correspondence with the claimant, alarm bells might have sounded and the unit might well have passed on the letter of 10 March 2004 in an attempt to discover what decision it was that the claimant was seeking to review. As it was, since the housing benefit unit was already in communication with the claimant and the letter dealt both with a review of an unspecified decision and entitlement to housing benefit, it is understandable that the mistake occurred.
19. The question is whether that mistake is fatal to the commencement of possession proceedings by the defendant. In his skeleton argument on behalf of the claimant, Professor Loveland submitted that:

"The conduct of a review, if a request is made, is a condition precedent to the lawful exercise of the landlord's power to initiate possession proceedings. Absent a review, the initiation of proceedings is a nullity."

20. It is common ground that there was a review in this case; it is contained in the letter of 19 August 2005. Thus, the claimant's submission must be that the failure to carry out the review within the time limit prescribed by subsection 129(6) is fatal to the commencement of proceedings.
21. In McDonagh v Salisbury District Council [2001] EWHC Admin 567, Jackson J had to consider whether reviews conducted out of time were valid. In that case, there had been two reviews. An initial review was carried out nine days after the deadline set in section 129(6). At that stage, possession proceedings had not been commenced. In due course a possession order was obtained, judicial review proceedings were commenced, and the defendant council carried out a second review after the possession order had been obtained. Jackson J concluded that the first review was not valid, for reasons which it is unnecessary to rehearse in this judgment. So the question was: could the defendant rely upon the second review? In paragraph 46, Jackson J said this:

"46. I now come to the further matter which troubled me and which I raised during argument. Section 129(6) of the 1996 Act requires the council's review to be carried out before the date specified in the notice pursuant to section 128(4). In this case the date specified was 9 October 2000. However, the second Review Board hearing took place some seven months after that date [on 17 May 2001]. Does that make the Review Board hearing a nullity? I have come to the conclusion that it does not for four reasons:

(1) a variety of circumstances might occur which would extend the review beyond the specified date. Some of those circumstances would be in the control of the landlord, some would not. For example, the tenant may apply on good grounds for a postponement of the hearing under Regulation 8 of the 1997 regulations; or an adjournment may be ordered for good reason under Regulation 9, with consequential delays. It would be absurd if events of this nature rendered the review process invalid

(2) the statute does not specify any consequence for non-compliance with section 129(6). If Parliament had intended a breach of section 129(6) to disable the landlord from reviewing his decision to bring proceedings, Parliament would surely have stated expressly such a drastic consequence.

(3) even the first review hearing did not comply with section 129(6), as has been pointed out in Part 2 of this judgment. Yet no-one suggests that the first review hearing was invalidated because of that particular breach.

(4) if breach of section 129(6) makes a review impossible, then the procedure for terminating introductory tenancies becomes prolonged and repetitive.

"47. I therefore conclude the second Review Board hearing was not invalidated, even though it took place some time after the date specified in the council's notice."

22. Further to the second of Jackson J's four reasons, the contrast between sub-sections 129(6) and 128(1) should be noted. Section 128(1) provides that:

"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."(My emphasis).

The remainder of the section then sets out the matters with which the notice must comply. There is no comparable provision in section 129. Professor Loveland very properly accepts that section 129 is silent as to the consequences of non-compliance with the time limit for review set out in subsection(6).

23. He submits that a failure to carry out a review within the proper timescale is fatal to any decision to commence proceedings. He drew my attention to the authorities cited in Wade's 'Administrative Law' dealing with the mandatory or directory conditions at page 221 and following. In my judgment, the most helpful authority among the many authorities cited in that work is London & Clydeside Estates Ltd v Aberdeen DC [1980] 1 W.L.R. 226 in which Lord Hailsham said that the court was faced with "not so much a stark choice of alternatives, but a spectrum of possibilities in which one compartment or description fades gradually into another." In that case, the House of Lords also made it clear that the question mandatory or directory should not be considered in the abstract, but "in the light of a concrete state of fact and a continuing chain of events": p.189F.
24. In the present case, the possession proceedings were issued on 4 June 2004. Those proceedings were perfectly valid on their face, and they will continue to be valid unless and until they are quashed by this court. The decision whether or not to grant such relief in these proceedings is essentially a matter for the court's discretion. In deciding how to exercise that discretion, the court will have regard to all relevant circumstances. For example, if there is a prompt application, then the court may well issue a mandatory order requiring a local authority to carry out a review, particularly, if the failure to carry out a review is a matter of deliberate policy rather than a mere oversight or mistake.
25. Alternatively, the court might quash a local authority's decision to initiate proceedings. But the circumstances here are that the claimant's own former solicitors positively asked the defendant to carry out a review, see their letter of 4 October 2004. There was no challenge to the County Court's decision to make a possession order, and no challenge to the warrant which had been issued. Rather, the parties agreed that the warrant should be suspended to enable the review which the claimant's solicitors had requested the defendant to carry out. Far from contending that the review was a pointless exercise because it was being carried out too late, the claimant's solicitors as late as June 2005 were asking for the review to be deferred so that further representations could be made.
26. In the light of the express agreement that there should be a review and that the warrant for possession should be suspended to enable that to be carried out, it is wholly inconsistent for the claimant now to argue that the possession proceedings should not have been issued at all because there had not been any review within the timescale prescribed by section 129(6). I appreciate that that argument was raised, among many others, in the letter from the claimant's former solicitors on 11 October 2004, but in reality they were seeking to have their cake and eat it. They had positively asked for a review and continued to participate in it.
27. Since Section 129(6) is silent as to the consequences of a failure to comply with the time limit, whether a delay in carrying out a review will or will not be fatal to a decision to commence proceedings will turn upon the facts of the particular case. If the failure has been due to a genuine oversight which is capable of being remedied, there would seem to be no good reason to prevent a landlord from remedying the omission. The underlying purpose of the provision is to ensure that before commencing proceedings, the landlord will have all the information that the tenant wishes to place before him to hand, and be able to review the appropriateness of commencing proceedings in the light of the most recent information from the tenant. It seems to me that those objectives are capable of being achieved, even though a review is carried out, as in the present case, after the expiration of the time limit.
28. If, for example, cogent arguments on the merits are advanced in the tenant's representations requesting a review, and those representations might, if the review had been concluded in time, have dissuaded the landlord from seeking possession, then one can see that in such a case there might well be grounds for striking down the possession proceedings. Here, no such arguments were advanced. There is no criticism of the review decision dated 19 August 2005, apart from the proposition that the reviewing officer ought to have concluded that the letter dated 10 March 2004 was a valid request for a review and therefore a review was not carried out in time.
29. The reviewing officer set out the circumstances and made the point that the letter had not been correctly addressed to the right department within the council. Professor Loveland submitted that the defendant council is one entity and it should not have mattered that the request went to the Housing Benefits Unit rather than the Rent Arrears section. In my judgment, it is unnecessary to resolve that legal issue because whether the wrongly addressed letter dated 10 March 2004 was a "duly made" application for a review or not, the parties agreed in October 2004 that a review should be carried out; i.e. that it was not then too late to undertake a review, and that the possession proceedings should be put on hold to enable that late review to take place.
30. Against that background, and simply as a matter of the court's discretion, it would be wholly unjust to the defendant to allow the claimant now to say that that entire exercise was otiose because, from the very beginning, the possession proceedings were invalid simply on the basis not that there had been no review, not that there had been any error in the review, but simply that the review had not been carried out within a particular timescale.
31. There is nothing to suggest that the fact of the review was carried out on 19 August 2005, rather than prior to 5th April 2004 has prejudiced the claimant in any way. She has had ample opportunity to explain why possession proceedings should not have been instituted against her and/or should have been discontinued. No cogent reason has been put forward. For these reasons, I am satisfied that this application for judicial review must be dismissed.