Chelfat, R (on the application of) v London Borough of Tower Hamlets

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.

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:

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

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:

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:

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.

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.

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:

The defendant wrote back the same day saying:

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:

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:

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:

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.

The claim in these proceedings was issued on 1 November 2005. Section 129 of the Act is in these terms:

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:

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.

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.

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.

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:

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.

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:

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.