Housing Law Update: The Court of Appeal considered the issue of whether a local authority had an obligation or power to conduct a review pursuant to s85ZA(2) Housing Act 1985
Housing Law Update:
The Court of Appeal considered the issue of whether a local authority had an obligation or power to conduct a review pursuant to s85ZA(2) Housing Act 1985 outside the statutory 7 day timescale where possession was sought due to an application for a mandatory possession order.
It is quite common in cases where the tenant has failed to request a review of the decision to seek a possession order for the tenant’s legal advisors to suggest that the proper course of action is to hold a review outside the statutory period. Landlords often agree to do this to demonstrate that a proportionate and fair approach has, and is, being taken.
In the case of Aaron Harris v Hounslow LBC, Harris and his visitors were allegedly causing nuisance in the block of flats he lived in. A noise abatement notice was served and an acceptable behaviour contract entered into. These were breached which resulted in a 3 month closure order. A Notice was served pursuant to s83ZA seeking possession and giving the tenant the 7 days statutory time frame to request a review. He failed to do so but his legal advisors asked for an extension of time only 5 days after the time period had finished. Hounslow refused but later decided to carry out a review and upheld the decision to proceed to seek a possession order. At trial, the issue was raised and the Judge held that the local authority were wrong not to have granted an extension but the defect was cured by the subsequent review.
After the making of a possession order, Harris appealed on the question of whether the local authority had a power to agree to accept an out of time request and, if not, whether it had an obligation to serve a fresh notice seeking possession if the tenant’s failure to make the request in time was outside his control.
In relation to the question of whether the local authority had power to agree to accept a request out of time, the Court of Appeal held that the provisions were designed to tackle serious anti social behaviour and the fact the Act specified the 7 day time limit underlined its importance. There was no provision in the Act to allow an extension of time and to do so would place additional strain on local authorities to deal with cases on a case by case basis. Accordingly, the appeal on that point was rejected.
The Court of Appeal went on the consider if there was an obligation to serve a fresh notice and, using the same arguments, found that it would run counter to the legislative purpose to suggest that was the case. Further, there was no request to serve a fresh notice in this case and a landlord could not 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 reached. In this case, no such grounds were put forward to the local authority. The appeal on this point was also rejected.
The Court of Appeal finally considered if there were any relevant public law considerations and held that such a failure to conduct a review out of time could not be allowed to undermine the purpose of the legislation.
How does this decision affect providers?
In so far as this decision affects social housing providers – private registered providers are not under a statutory obligation to offer a review but many policies will agree to give one and the procedure (statutory or policy based) should be followed closely. However, unless the tenant provides reasons why the decision reached if a review was conducted out of time or requests that a new notice be served taking into account the new considerations which may lead to decision being different (ie not to proceed with the litigation) the housing provider has no power or obligation to hold a review out of time.
In practice, many housing providers may continue to offer reviews out of time to demonstrate a proportionate approach but this case is clear that there is no obligation to do so and the tenant should provide grounds for why there is new information that might lead to a different conclusion. Where a tenant actually requests that a new notice is served (rather than an appeal be held out of time) it can be rejected unless the request contains reasons which may lead to a different decision being made.
If you have any queries regarding this case update or any other housing matters, please contact Jane Talbot in chambers on 0121 236 0863 or another member of the housing team.