No obligation to review decision to apply for possession
In the case of Aaron Harris v Hounslow LBC  EWCA Civ 1476 the Court of Appeal decided that a secure tenant was not entitled to a statutory review of Hounslow London Borough Council's (the Council) decision to apply for a possession order.
As he had applied for the review outside the seven day period as set out by Section 85ZA(2) Part IV Housing Act 1985. The Council therefore had no obligation or power to conduct the review.
The facts of the case are that Mr Harris and his visitors to the block of flats in which he lived were causing nuisance to neighbours. The complaints consisted of noise emanating from Mr Harris' flat, an excessive number of visitors congregating in the stairwells, smoking, drinking and drug-taking.
The Council served a noise abatement notice and Mr Harris entered into an acceptable behaviour contract. However, the complaints continued, resulting in Mr Harris breaching both the noise abatement notice and the acceptable behaviour contract. In November 2015 the Magistrates' Court made a three month closure order in relation to the property.
On 23 December 2015 the Council served Mr Harris with notice that it was seeking possession (Notice) relying on the mandatory Ground 84A. The Notice specified that Court proceedings for possession would commence after 25 January 2016. Mr Harris had the opportunity to request a review of the Council's decision within seven days (section 85ZA (2) Housing Act 1985). He should have therefore made this request by 30 December 2015.
Mr Harris failed to request a review, but on 4 January 2016 his legal advisers asked for an extension of time in which to do so. The Council refused but decided to carry out a review in any event, after which it confirmed its decision to apply for possession.
Possession proceedings were subsequently issued and in October 2016 the District Judge held that that the Council should have granted an extension of time to Mr Harris. He went on to find that the procedural defect had been cured by the Council's subsequent decision to undertake the review in any event.
After the possession order was made, Mr Harris appealed and questioned whether:
- the Council had the power to agree to accept an out of time request for a statutory review; and
- if not, then he argued that the Council had an obligation to serve a fresh NOSP if Mr Harris' failure to make the request in time was beyond his control.
The Court of Appeal held that in relation to the Council's power to agree to accept out of time requests for review, the Notice given under section 83ZA had to be served within three months of the closure order being made. That section also contemplated that the Notice would give a date after which proceedings for possession could be commenced.
The purpose of the procedure was to deal with serious cases of anti social behaviour which affected Mr Harris' neighbours and it was therefore likely that any responsible landlord would specify as short a time as possible. Secure tenancies are usually given on weekly terms and therefore the date was likely to be 28 days after the giving of the Notice. However, there was no express power in section 83ZA to extend either the time within which the request for a review should be made or the time by which the review had to be concluded.
The Court of Appeal held that the provisions were designed to tackle serious anti social behaviour and the fact that the Housing Act 1985 specified a seven day time limit underlined its importance. It was therefore unrealistic to presume that the Council would allow more time than was necessary on the off chance that Mr Harris would fail to exercise his statutory right.
It would also place unnecessary strain on the Council's resources if they had to deal on a case by case basis with applications for extensions of time. Accordingly, a tenant who requested a review outside the seven day period was not entitled to a statutory review and a landlord had no power or obligation to conduct one.
In relation to the allegation that the Council should have served a fresh Notice if Mr Harris' failure to make the request was outside his control, it was held that a landlord had no power to conduct a review if a request was made out of time because Parliament had made that choice.
Furthermore, it was held that a landlord could not have a duty to serve a fresh Notice if it had not been asked to do so and Mr Harris had failed to do so in this case. A landlord could not therefore 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 ground upon which the review was being sought. No such grounds had been given by Mr Harris in this case.
The Court of Appeal therefore held that the Council could not be criticised for rejecting the request for a review in the absence of any indication of any ground upon which the review had been requested and there was no good reason for the Council to have served a new Notice.
Many registered providers will continue to offer a tenant the opportunity of a review out of time to prove reasonableness to the Court in mandatory grounds for possession, however it is clear from this case that there is no obligation to do this, neither is there an obligation to serve a new Notice if the failure to request a review is beyond their control.