Hanoman v Southwark

Mr Justice Peter Smith:

1. This is an appeal against the decision of His Honour Judge Cowell sitting at Central London County Court on 5^th June 2003. The case had been transferred from Lambeth County Court. The appellant had brought proceedings under the Right to Buy provisions of Part 5 of the Housing Act l985 against the respondents, London Borough of Southwark. He had been seeking relief against the respondents' decision that his application under Part 5 had been withdrawn. There were ancillary claims for damages against the respondents for breach of the provisions of Part 5 but they had been struck out. The learned Judge dismissed the claim and refused the appellant permission to appeal. Subsequently Lindley J granted the appellant permission to appeal.

2. I should say something about the factual summary. On l4th November l999, the respondent received a right to buy form. The form was signed by the person claiming the right to buy and the claimant contends that it is his signature. It is a statutory right to buy in respect of 83 Northfield House, Eckham Park Road, London, SE15, "the premises" in the rest of this judgment.

3. On 17^th January the respondent wrote to the appellant asking him to attend for the purpose of identification and to bring two items of identification from a list of documents. He telephoned on l8th January, spoke to a Mrs Ward, and said that he did not have any of the documents and raised the possibility of obtaining confirmation as to his identity from housing officers. The issue that had concerned the respondents was that when comparison was made to the signature on the notice of application, it was considered that the signature did not look like the signature on the original tenancy agreement of l6th March, l984. The respondents were therefore concerned as to whether or not the applicant was truly the secure tenant under the original tenancy agreement. If he was not then two things arose consequentially. First, the appellant would have no right to buy under the right to buy regime because that is only available to secure tenants and, second, in effect, he would be attempting to obtain a property right by some kind of deception.

4. There was no handwriting expert afforded to the respondents at the trial nor was the signature put in issue at the trial. The Judge, as an experienced layman, acknowledged that the signatures were different but signatures can be different for many reasons.

5. Having received the letter of l7th January, the learned Judge found that the appellant had asked Mrs Ward why she could not obtain information from the housing officers and her response was that she needed documentary evidence to confirm his identity. The appellant also told her that he was the chairman of the tenants association. The evidence of the appellant, accepted by the Judge, was that she would get back to him.

6. The matter thereafter rested from the appellant's point of view in that he heard nothing more from the respondents about his right to buy - apart from arranging an inspection on l0th February, that being discovered by him after the trial, because up until the trial he believed that inspection had taken place in l999 - until he added a claim for the failure to process the right to buy, in effect, in his particulars of claim in January 2002, that is to say some two years after the question of the signature was raised by the respondents.

7. The respondents did not do much better themselves. As I said, the Judge found that the appellant was expecting that Mrs Ward would get back to him. She wrote on l7th February as follows:

"Dear Mr Hanoman, regarding the signature discrepancy with your right to buy application, in a previous letter you were informed of the discrepancy with your signature and asked to call into this office with two forms of identification in order to re-sign the application form. You were given seven days in which to do this and we still have not received any response. Therefore, you are granted a further seven days in which to come into the office and bring two of the following…"

She then listed a number of other items including a credit or debit card. The letter then concluded:

"If we do not hear from you in this time I regret to inform you that you will have no other choice but to withdraw your application for the right to buy. If you have any further queries I can be contacted at the above number."

They heard no more and the reason why they heard no more is because the appellant, the Judge found, never received the letter.

8. What they did is set out in paragraph 5 of the witness statement of Miss Marcella Baptiste, who gave evidence on behalf of the respondents. She said that Mrs Ward made it clear in the letter, that is to say the letter of l7th February, that his application would be withdrawn if he failed to make contact. The respondents did not hear anything within the time limit and as such his application was treated as withdrawn, the case was therefore closed and the papers filed.

9. So from a short time after l7th February 2000, the respondents treated his application as withdrawn. They never communicated the fact of that decision to him. They imposed a unilateral timetable for the provision of information and stated in default of him complying with that, his application was treated as withdrawn. The difficulty with exercise and the imposition of deadlines like that, when the post is used, is that sometimes letters are not received. The respondents therefore believed mistakenly that the appellant had withdrawn his application because he had failed to respond to their demand. That is the way they put it but, of course, that is not what they said in their letter because in their letter, in a phrase which Mr Broatch, who appears for the respondents, described as unfortunate, the letter actually says that unless he provides the information they will withdraw his application. Now, there is no power to do that on the part of the respondents.

10. Mr Broatch said that the spirit of the letter was that it would mean that they would treat the application as withdrawn but in truth there is no power on the part of the respondents, under statutory regime as I shall set out below, to treat an application as withdrawn because an applicant has failed to provide information within a short period of time of a unilaterally imposed deadline. In the context of the present case the seven day time limit, in any event, was plainly unreasonable. The respondents, as I have said, had received the application on l4th November l999. Under the provisions of Section l24(2) of the Housing Act l985, as we will see, they are obliged to provide a decision on that right to buy within four weeks of that date, that is to say the l2th December. The first time they contacted the appellant about his right to buy was the letter of l7th January, that letter having been sent some five to six weeks outside the statutory limit. In the context of that delay on their part, for them to seek to unilaterally impose a seven day time limit on the appellant under pain of a threatened deemed withdrawal, does not seem to me to be reasonable conduct on their part.

11. The factual position, therefore, is that the appellant's case is that he was expecting to hear from Mrs Ward from January 2000, and heard nothing. The respondents' case is that they expected to hear from the appellant by 24^th February, failing which they would deem his application to have been withdrawn or to use their language, they would withdraw it.

12. It is against that background that I say something about the statutory regime. Under Section 122 of the Housing Act l985, a secure tenant has a right to seek to exercise the right to buy by serving a written notice to that effect on the landlord. Under Section l22(3) it is provided that the notice may be withdrawn at any time by notice in writing served on the landlord. I mention that because there is an argument put forward by the appellant that none of the supposed withdrawal by him can be effective because only a withdrawal in writing is possible.

13. Upon receipt of the notice the landlord's duties are set out under Section l24 and that provides as follows, sub section 1:

"Where a notice under Section l22 (notice claiming to exercise right to buy) has been served by the tenant, the landlord shall -" and I emphasise the word "shall" - "unless the notice is withdrawn, serve on the tenant within the period specified in sub section 2, a written notice either (a) admitting his right or (b) denying it and stating the reasons why, in the opinion of the landlord, the tenant does not have the right to buy."

Under sub section 2 in this case the period for serving a notice under this section is four weeks which, as I say, is four weeks from l4th November l999.

14. There are procedures, therefore, as to the preliminaries as to the setting out of the right to buy. The first stage of that is an evaluation of the application and authorities have been given some guidance as to the evaluation of applications. This is important for a number of reasons: first, as a local authority holding a property they, of course, owe fiduciary duties in respect of that property. For example, under Section 122 of the Local Government Act l974, they can only dispose of property at the best price reasonably obtainable. They have no power, of course, to deal with property otherwise than in accordance with statutory powers. They, therefore, can only transfer property, pursuant to a right to buy, if the person is a secure tenant and is entitled to and has properly exercised the right to buy.

15. The Department of Environment has issued a circular 21/84 on l5th August l984 and paragraph 45 of that circular refers to the new RTB1, that is to say the right to buy form:

"The new form RTB1 has been redesigned so that inter alia the claimant is prompted to give details of all periods of tenancy/occupation relevant to the calculation of his entitlements under the new rules. It does not, however, attempt to set out every detail of qualification and discount rules. Where there is doubt about a tenant's entitlements, it is again for landlords to decide what steps should be taken to obtain additional information."

16. In this case, and there is no appeal against this, Mrs Ward formed the view that

there was a doubt, based on the discrepancy between the signatures, as to whether or not the claimant was entitled to exercise a right to buy. The guidance in the Department of Environment circular is not a statutory requirement as such, it is guidance. The last sentence of paragraph 45 makes it quite clear that it is for the local authority to decide what they wish to do in order to satisfy themselves as to the entitlement. That, however, to my mind has to be measured against the backcloth of their statutory duty.

17. What is their statutory duty in a case like this? It is a statutory duty to give a decision within four weeks. The wording of Section l24(l) could not, in my mind, be plainer, "They shall give a decision which is either in favour of accepting it or denying the right to buy." This does not actually pose any difficulty on the part of the respondents in this case because although they did not follow that procedure in this application, they did follow that in respect of a later application. If the application is such that the information leads them to conclude that there is a doubt as to the authenticity of the application, there is therefore sufficient material in their minds, for them to deny the right to buy. I do not accept Mr Broatch's submission that it is necessary for them to defer the decision so as to avoid acting in breach of their fiduciary duties about the preservation of the property that they hold, because it is inconceivable that if there was a doubt they would simply ignore the doubt and accede to the application.

18. It might be a matter of commonsense that where a four week time limit cannot be met, that the parties can agree an extended period. By way of analogy under the provisions of the Town and Country Planning Act l990, for example, an application for planning permission is deemed to be refused, if a decision is not made on it within three months. Those applications are regularly consensually deferred, that deemed refusal, because the applicant for planning permission knows the consequences of a deemed refusal means that he has to appeal to the Secretary of State against the deemed refusal. As the process of considering a planning application might take considerably longer than that three month period, in particular in respect of complicated applications, the parties to a planning application regularly agree a consensual deferral but the matters are done in a consensual way.

19. There is no consensual way agreed in this case. As I have set out in the chronology, the respondents were already in breach of their statutory duty before they ever contacted the appellant. They never sought an indefinite deferral, or even a deferral for a reasonable period, to enable them to decide whether or not to acknowledge the right or to deny it. Absent that, Mr Broatch was unable to point to any statutory power, within the Housing Act or elsewhere, whereby the local authority could defer and, in effect, extend time under the statutory time limit set out under Section l24.

20. The position, in my judgment, is analogous to that of landlords faced with an application for licence to assign under the Landlord and Tenant Act l988. There the landlord has an obligation to give consent within a reasonable time. That reasonable time can be extended to dealing with enquiries that it is reasonable for the landlord to make because of the inadequacy of an application. If the tenant participates in that extension of time, the period of reasonableness becomes extended consensually for the period covered, by dealing with the provision of further information reasonably requested. None of that happened in this case, as I say, because the respondents imposed a unilateral seven day deadline by their letter of l7th February.

21. Those are the primary obligations. What remedies are available to an applicant where the time limit as passed? Mr Broatch submits that judicial review would not be available because there is a statutory remedy. The statutory remedy is to go to the County Court and seek a declaration that there has not been an answer to the notice exercising the right to buy. There is no power under the Housing Act to grant an injunction to compel the local authority to answer. Nevertheless, the position seems to me to be quite clear, absent a possible consensual deferral, a failure on the part of the respondents is a breach of its statutory duty to provide an answer within four weeks. There is nothing in the Act which enables it to extend that four week period.

22. I should say that there is another remedy available to a tenant and that is to serve a notice under Section 153(a) saying that there has been delay. That has been referred to but the precise details of the section have not been explored in submissions before me. However, I accept Mr Broatch's submission that the net effect of the section appears to be that if a tenant serves a notice of delay under that section and he establishes that there has been delay then, in effect, he is entitled to a rebate of the rent that he has paid over because there has been a delay in completion from the date when the completion should have taken place down to the date of actual completion. So he gets a rebate of his rent, as I understand it.

MR BROATCH: From the date of service of the notice.

MR JUSTICE SMITH: From the date of service of the notice.

23. None of those, of course, provide a direct sanction for failure to comply with a duty under Section l24. There is no power to go to court to seek an order compelling the authority to respond. There is no power even to go to the Divisional Court, on Mr Broatch's submissions, to seek an order compelling the local authority in that court. The Act does not say that if the response is not served within the time limit, it is deemed to be refused or deemed to be granted but, nevertheless, I come back to the clear rule that the local authority has a statutory duty to comply within that time limit.

24. I do not see, as Mr Broatch submits, that the Department of Environment's circular must be ultra vires because of my decision. It seems to me that the circular does nothing more than set out what ought to be done in respect of a response to a notice claiming the right to buy. It leaves it to the local authority to decide how it should respond and it seems to me that the circular cannot impact on the statutory obligations to apply, to make a decision yea or nay within the four week period.

25. Mr Broatch says that might cause hardship to some applicants who, through one reason or another, do not provide enough information to enable an informed decision to be made as to whether or not they genuinely have a right. He submits that in that situation, forcing the local authority to come to a decision to reject, in effect, within the four week period, deprives such applicants of providing sufficient information and drives the parties unnecessarily into court, because the applicant would have to go to court to seek an establishment of the rights, much like the appellant is seeking now.

26. The short answer to that is the possibility of a consensual deferral. I see no difficulty in there being a consensual deferral in appropriate circumstances which is mutually beneficial. I stress that there is no such consensual deferral in the present case so anything I say on that is obiter. However, I do not see why there should not be the ability of the parties to agree consensually a mutual deferral. The reason for that is twofold. Section l24 does not bring down a guillotine. It does not say that the notice is either deemed to be accepted or granted and, therefore, I accept Mr Broatch's submission that although there is a breach from the failure to comply within the four week period, that is a continuing duty to comply which the local authority can subsequently comply with at a later time. That is not an extension of the time limit, nor does it deflect from the fact that a failure to comply within the four week period is a prima facie breach of the statutory duty, albeit conferring no effective remedy on the persons who are wronged by that breach.

27. I come on now to consider the findings of the learned Judge in that statutory background. In paragraph 7 of his judgment he found as a fact that the claimant received the letter of l7th January and that he telephoned Mrs Ward the following day and said that he had none of the proofs, that is to say the proofs, the four items mentioned in the letter. He said he was known to the housing office and, as I have said earlier in this judgment, asked her to obtain confirmation as to his identity from the housing officers.

28. The crucial point, however, is the Judge's finding that Mrs Ward indicated she would get back to him. Mrs Ward did not get back to him beyond sending a letter which the Judge found he never received. In paragraph l0 of his judgment he says, "Unfortunately, the letter of l7th February 2000, was not received," and he found as a fact that the claimant did not receive the letter. It follows, therefore, that the respondents' basis for closing the file was not justified. It was not justified, in any event, for the reasons I have already said in this judgment but it was not correct because they were not entitled to assume that the claimant had acquiesced or waived his rights and to treat his application as withdrawn. Nothing could be further from the truth.

29. The claimant is vehement in his statement that he was desirous of exercising his rights and the only basis on which the respondents complain that he could be treated as abandoning his rights is on two factors. The first is a failure to respond to the letter. I do not see how that can be said to be evidence of a failure, indicating an intention on his part to abandon his application, because he never received the letter. The second, and perhaps more significant time limit relied upon by the respondents, and which found favour with the Judge, is of course the fact that between January 2000, when the appellant was waiting for a response and January 2002, he made no attempt to contact the local authority whatsoever beyond arranging the inspection in February. That, Mr Broatch submitted, categorised a suggestion of somebody being active in pursuing his rights as being absurd. The delay Mr Broatch says was self evidently indicative of showing that the claimant did not intend to proceed with his application. That I think is the way the Judge looked at it.

30. In paragraph l8 of his judgment the Judge said this, and this was summarising Mr Broatch's submissions:

"Put very shortly, what the landlord says is that the notice was withdrawn by the inactivity of the tenant in taking any further steps to establish his identity in accordance with the request from the defendant council so that by his inactivity he withdrew the notice."

31. In paragraph 26 he summarised the arguments of the claimant as follows:

"The claimant argued that what the council is concerned about is his entitlement as a tenant, that is for how long he has been there and that is the important point. In my judgment, all points are important or can be important. Not only the points that determine the size of discount and that sort of thing but also the most fundamental question of all, whether the application is being made by a secure tenant because it is only a secure tenant who can exercise the right."

Pausing there, I agree with the Judge's analysis in that regard.

32. In paragraph 27 he says:

"I am aware that the claimant entertains the belief the council is doing all it can to frustrate the right to buy process but the initial impression I get from the facts of this case is quite simply that Miss Ward, who is not on the council and not one of the political councillors, was doing no more than her ordinary duty as an employee to look at the agreement, check that there were no possession orders and see if the signatures looked alike in order to check whether Colin Hanoman was a secure tenant. There are a number of problems that arise: if, for example, there is a joint tenancy and only one is applying, that sort of thing. Quite clearly she noticed what appear to be differences in signature. It was not for her at that stage to come to any particular conclusion whether it was the same or whether it was different. It was her duty to raise the point. That is the point she raised. Quite clearly by the letter that was received by the claimant, she was seeking some evidence."

Pausing there, I can see no basis for criticising the Judge's conclusion in that regard. It is quite clear in my mind that the respondents are entitled to satisfy themselves that the application is both in order and that the person is entitled to make the application for the reasons that I have already set out in this judgment.

33. The crucial judgment is paragraph 28:

"In all the circumstances of this case, it seems to me by taking the matter no further, by providing no evidence, not even a credit card (that must have been mentioned during the telephone conversation) and by not even beginning to satisfy the landlords' reasonable requirement for evidence to establish his entitlement, which entitlement included his identity as a secure tenant, that such inactivity can amount to withdrawal and did in this case amount to withdrawal on the part of the tenant. Not only that but the circumstances were also such to lead the landlord to believe that the notice had been withdrawn. That is the answer to the second question that I posed at the very beginning of the judgment."

For the sake of completeness the two questions were, should the appellant be treated as withdrawing his application? Has he, in fact, withdrawn it?

34. Now, it is necessary, in addressing those questions, to deal first with the primary submission of the appellant that an application can only be withdrawn in writing. It is correct, as he says, Section 122(3) says that the application may be withdrawn in writing. It does not say the application can only be withdrawn in writing, nor does it say the application must be withdrawn in writing. The learned Judge rejected the appellant's submissions that Section 122(3) provided a sole and exhaustive method of withdrawing of applications. I reject the appellant's submissions in that regard although it is a point that is by no means easy and is not, in my view, clearly established on authorities.

35. There are a number of authorities to which I should make reference in this regard. First, in the case of London Borough of Sutton -v- Swan, l8 HLR 140, the Court of Appeal considered the status of a right to buy. Put shortly, the tenant there was a secure tenant at the time that he served the notice and the right to buy procedure was being gone through and the respondents, the local authority, had admitted his right to buy. In the judgment of Ackner LJ, as he then was, at page 144 he said this:

"In March l982, Mr Swan was entitled to serve a notice under Section 5 of the Housing Act l980," and that is to say the predecessor section to that under Section l21, "claiming the right to buy because he was a secure tenant and this was admitted by the notice and reply served by the respondents. The respondents provided Mr Swan with a perfectly straightforward offer for him to accept so the matter could proceed. He took no further step. The matter did not proceed. Accordingly, the offer, which the respondents were obliged to make under the statute, lapsed by fluxion of time. When Mr Swan returned to the charge a year or more later, that offer as I have indicated having lapsed, he was no longer a secure tenant and, therefore, he no longer was entitled to apply under Section 5 of the Act to buy the premises."

36. Now that decision has one clear basis for it and one less clear basis for it. The clear basis for it is, in effect, that a secure tenant, exercising a right to buy, must maintain that status up until the time when the property is to be transferred to him pursuant to the rights. If he loses the status, after having given the notice, he loses the rights. He could lose the status in a number of ways. One might be that he commits breaches of his tenancy obligation so that the respondents seek and obtain an order for possession thereby putting an end to his secure tenancy. Second, a secure tenant has to occupy the property as his main residence. If he ceases to do that, for example, by sub-letting the property or going somewhere else, he loses his status as a secure tenant and he loses his right to buy. Equally, and there are some unfortunate cases in this regard, the tenant might die between the giving of the notice and its acceptance and the conclusion of the conveyance. There are conflicting cases as the result of such an important exercise.

37. The Sutton case has received comment on its effect and I was referred to a book, "Rights to Buy and Acquire - Law and Practice in the Management of Social Housing," by Josephine Henderson. At page l02 the author says this:

"The claim by the tenant may be withdrawn. The landlord does not have to take any further steps if the claim is withdrawn in writing. In addition, inaction by the tenant may amount to withdrawal. The landlord's notice of admission lapses if no further action is taken by the tenant within a reasonable time. (See London Borough of Sutton -v- Swan). In certain circumstances the statute penalises inactivity by deemed withdrawal," none applicable here. "Under Section 125(e), for example, if the tenant failed to give notice of intention to proceed and if warning has been given, notice of claim is deemed to have been withdrawn."

That commentary is not echoed in several other texts. I found no commentary on this part in either Woodfall or Hill and Redman. Mr Broatch said that there is a note in the Housing Law Encyclopaedia which makes observations on the possible consequences of London Borough of Sutton but nothing more.

38. Sutton was considered by the Court of Appeal in Muir Group Housing Association -v- Thornley 25 HLR 89. It is quite clear, however, that the Court of Appeal there addressed one aspect of the Sutton case only. Glidewell LJ, at page 98 of the judgment said this:

"Finally, I agree that we are bound by the decision of this Court in London Borough of Sutton -v- Swan to conclude that a person, who was no longer a secure tenant, was no longer entitled to the right to buy. The decision in Enfield -v- McEwan and Dance -v- Welwyn Hatfield District Council were concerned with a different question, namely what stage in the process towards conveyance does the right to buy of a person, who is at all relevant times a secure tenant, become indefeasible? There is therefore nothing in those two decisions which prevents us from arriving at the decision we have announced."

It will be seen that His Lordship made no reference to the alternative basis that

appears in Sutton.

39. The appellant referred me to a Scottish case, Graham -v- The Northern Joint Police Board, Scottish Law Times Lands Tribunal 7. The date of the judgment is llth April 2000. One has to bear in mind that the law of the title to land and its conveyance in Scotland is very different from the procedure within this jurisdiction. Part of the judgment, however, does seem to me to be of assistance in my determination of this aspect of the case. At page 12 reference is made to the submissions. At letter (c) Lord McGee says this:

"Unless the respondents' contention in relation to waiver were upheld, the tribunal should proceed to make a formal offer. He submitted that there was no substance in the defence of waiver. The law of waiver should now be seen to be based on the decision in ?Armey Limited -v- DeGene Developments Ltd. There were two essential elements, conduct on the part of the applicant which could reasonably justify the inference that he had waived his rights and proof that the respondents had in some way changed their position in reliance on the conduct.

"In response to the tribunal he said there was a conceptual difference between an express abandonment and waiver or abandonment implied by conduct. If waiver was to be inferred by conduct, there had to be actings on behalf of the party seeking to rely on the waiver, which could be shown to have been in such reliance. Reliance required proof of change. It did not need to be to the prejudice of the respondents. The fundamental difficulty for the respondents was their actings were based entirely reliant on their policy and understanding of the law. Nothing was attributable to reliance on any change of heart by the appellant. They had not changed their position in any way. The need for proof of reliance by way of some change in the conduct of affairs was well established since Armenia -v- Dijon."

40. He referred to Lusarda -v- JE Lesser:

"In response to counsel for the respondents' submissions, he elaborated his initial submissions on this point by stressing the need not only for a conscious conclusion by the respondents that there had been abandonment but a causal connection between the abandonment and their own actions. There had to be an overt act of acceptance … was a bilateral conceptual concept."

41. The language used is very different to the language found in these Courts but, nevertheless, it shows that the Courts in Scotland consider that a right can be abandoned by what they call waiver or abandonment. When one analyses the criteria necessary for those, it is quite clear that the concepts there are very similar to concepts that are well known within this jurisdiction, that is to say waiver or estoppel. Without going into those areas in any great detail but generally if 'A' conducts himself as if a certain position is to be taken and 'B' is aware of that and acts on it, then generally 'A' will not be entitled to resile from that position. It is important, however, that if 'A' is giving up his rights, and in the context of the present case it is giving up his right to exercise his right to buy, a person must know that he is doing it. That much we can see from the well known Court of Appeal decision of Peyman -v- Lanjani, a decision in l980, where a tenant, under a l954 act tenancy, was held not to have waived his rights because at the time, without legal advice, he was unaware that he had any rights. Equally the person who wishes to claim the benefit of that, must act on the basis that the person has given up his rights.

42. It seems to me that the respondents by shutting their file after non receipt of a reply to their letter of l7th February, did not take any further steps or conduct themselves thereafter on the basis that they believed the application was withdrawn. They treated it as having been withdrawn because of the failure to comply with their unilateral deadline.

43. The position of the appellant appears to be this, it is true he did not respond or make enquiries about his application for nearly two years. His answers for that are twofold, it seems to me. First, he believed that the respondents were going to get back to him. Two years it might be said with some force is an awful long time for people to come back to him but his answer to that is that he believed the respondents' procedures were slow. Second, he also believed the respondents' procedures were slow because he believed that the respondents' attitude was that it would do all it could to frustrate the right to buy process. The Judge rejected that as being a correct analysis of the respondents' conduct and I have no basis for suggesting that the authority and Mrs Ward acted other than perfectly properly in seeking to evaluate the appellant's application and to satisfy themselves that he had a right to exercise under the l985 Act. However, that does not deflect from the fact that the appellant had such a belief, nor does it deflect from the fact that the respondents had sent a letter imposing a deadline which he never received.

44. Now, as part of this analysis the appellant referred me to a decision of Lindley J in Kensington and Chelsea Royal London Borough Council -v- Hislop [2004] 1 All England 1036 and in particular paragraph 23. The facts of the case are far removed from the present facts because the Judge there found that there was a deliberate decision made by the council to obstruct the tenant's rights. As I have already said, the appellant's belief in that regard was unfounded in the present case. Nevertheless, it is instructive to analyse this situation.

45. The Judge in that case determined that there was no need, in effect, to exercise further rights of default nor chase up parties in considering the exercise of their statutory duties. Applying that to the present case we have a situation where the respondents are in the process of discharging their statutory duty to serve a response to the appellant's request seeking his right to buy. They sent a letter on l7th February which he never received. They never sent a letter saying that the process was now concluded and that their file had been shut. That letter might, of course, have gone the same way as the letter of l7th February and not been received. Of course, there are methods of ensuring that it is received by sending it recorded delivery, for example.

46. Nevertheless, as I have said earlier in the judgment, I do not see that the respondents have any statutory power to defer their decision. They were already in breach of their statutory duty by the time of their first letter on l9th January. That was a continuing duty and it was to be discharged. There is no power, in effect, not to make a decision, so far as I can see, unless they no longer have to make a decision. They only no longer have to make a decision if it is established that there is no right. Before they come to make a decision, let us suppose a prospective tenant dies or if the tenant withdraws his application. Other than that, it seems to me plain they have to make a decision either to accept or reject with reasons, the notice claiming the right to buy.

47. I do not see that the claimant has any duty, whether statutory or other matter, to in effect require the respondents to carry on the process of complying with their duty. He is perfectly entitled, having served his notice, to require them to make the decision. If they require more information they can request it. He is not under an obligation to provide it. He is entitled to say I will not provide any more information. However, that does not relieve them of their obligation to make the decision because it does not follow that he is withdrawing his application. He is simply not responding to extra statutory requests for information. Faced with that, it is not a difficult exercise for the respondents. They simply say as you have not provided sufficient information, we do not accept that you are entitled to exercise the right to buy and we deny the right.

48. If that proceeds to litigation it might be established that that was correct or it might be established, on the basis of fresh evidence on the part of the relevant applicant, that it was incorrect. As regards that it is inevitably going to be the case that if an applicant acted unreasonably in failing to provide information which was available, he is going to be damned in costs.

49. When we look at the present scenario, it seems to me that there was no duty on the part of the appellant to do anything other than wait for a decision on the part of the respondents, to respond to his notice claiming the right to buy. It follows, therefore, that with respect to the learned Judge, to my mind he fell into error in failing to address the significance of the statutory duty on the respondents to make a decision. For that reason alone it seems to me that hearing the appeal I would conclude, with respect to the learned Judge, that his judgment is wrong.

50. However, when one looks at his findings, and in particular the findings that the appellant was waiting for communication from the respondents, that he never received any communication, I do not see that there is any material that could lead the Judge, on those factors alone, nor on the fact of delay over a two year period, given the explanations put forward by the appellant, whether accepted or not, for him to conclude that the appellant has withdrawn his application. He plainly did not withdraw his application because he clearly wished to proceed with it at all times.

51. I do not see that the respondents can conclude his application had been withdrawn because it was based on a false premise, namely that they had had no response to a letter which he had never received.

52. There may be other cases where an applicant so conducts himself that he will have put it out of court, him to be able to continue to assert his rights. Those might be a number of ways. First, he might lose the rights because he fails to satisfy the statutory criteria. That, in my judgment, is the true ratio of the Sutton case. He might lose his rights if he has conducted himself in such a way as to amount to a waiver of his rights or to operate as an estoppel against him enforcing his rights or such that it might be unconscionable for him to seek to enforce his rights. All of those are well known and well established principles known to the law in this jurisdiction.

53. I am comforted in that part of my judgment on the Graham case. I do not find that, for example, mere delay is a sufficient factor. If one looks at the doctrine of laches, for example, which is delay in another word, it is well established that mere delay is not sufficient. There must be some prejudice which has been caused to the other person by delay. It has not been said in this case, in the pleadings or at the trial, that there has been any prejudice caused by the delay in processing the application by the appellant.

54. To my mind the Judge did not, with respect to him, sufficiently analyse the nature of the conduct required to enable the respondents to be able to submit, as they did, that the circumstance were such as to lead them to believe that the notice had been withdrawn. Their belief was fundamentally flawed because of their mistake belief that the appellant had chosen not to respond to a letter when, in fact, he had never received it.

55. It would be unfair in my view, when looking at the overall pattern where the respondents are in breach of their statutory duty, to penalise the appellant by denying him his rights because he has failed, in effect, to remind the local authority that he is expecting a decision in discharge of their duty. That appears from the Kensington case and I adopt what Lindley J said in that. It would be quite wrong if his rights were taken away.

56. Of course, there may be other cases which might lead to a different conclusion. Let us suppose, for example, the appellant had received the letter of l9th February and had written back and said I am not going to provide any more information. That would enable the respondents then to make the decision. He might have received the letter and done nothing. In those circumstances a claim for abandonment or withdrawal would be more appropriate. Another way might be if the letter is received and he gives the impression informally that he is not going to proceed and then, like the applicant in the Swan case, seeks to revive it at a later date. In those circumstances he may well be estopped from seeking to assert the right.

57. In this context, of course, it is important to remember - and this caused me some difficulty in the arguments - that these kind of principles, whilst they might affect the appellant, will not affect the respondent because the respondent cannot, by way of waiver or estoppel, bargain away its statutory rights and obligations. That much we see from the well known case of Western Fish -v- Penrith Borough Council [1979]:

"A local authority cannot by estoppel surrender its discretions."

So in the present case, for example, I do not see how the local authority could waive any of its statutory rights and duties. For example, it could never sell the property to somebody who was not a secure tenant who was entitled to exercise the right to buy. That is why I do not think there was ever any realistic problem or difficulty because, in effect, the local authority would err on the side of caution. Unless the right is clearly established, they would decline to acknowledge the right.

58. Now, an appeal is a review but it does seem to me that, with respect to the Judge, he focused too much on the period of delay without asking the question as to why the delay occurred or where the responsibilities, at that time in the exercise, fell. It follows that I am of the view that he could not have come reasonably to this decision even if he had applied the law correctly and the appeal will, therefore, be allowed.

59. I should say that there are a number of other arguments which have been raised by the appellant. The first one is what is becoming a catch all, namely that his human rights have been infringed. For the reasons set out in Mr Broatch's detailed skeleton argument there would have been, in my judgment, no infringement of his property rights so as to infringe his human rights. Second, he submits that the local authority respondent is estopped from challenging the decision by reason principally of his fresh evidence which consisted of discovering that the respondents had actually inspected the premises in February. Putting aside the legal principle which I have already adverted to, namely that I do not see how the respondent can estop itself against exercising its statutory duties, that act, even if that principle was capably implied, cannot to my mind amount to any form of estoppel.

60. He also submits that there was a power to establish his right to buy otherwise, drawing on the words to be found in Section l25 which says, "Where a secure tenant has claimed to exercise the right to buy and that right has been established by the landlord's admission or otherwise." That does not, to my mind, enable the appellant to establish his right to buy in a different way. He has to follow the procedures and the part in parenthesis merely deals not with how he can prove his right but how the landlord can acknowledge his right, which is an entirely different proposition.

61. He raised in his skeleton argument an argument based on Section l77 of the Housing Act but he did not proceed with that.

62. It follows, therefore, for the reasons that I have set out in my judgment, that the appeal must be allowed. I appreciate that that might cause concerns on the part of local authorities faced as they are with demands from large numbers of obligations that are put upon them, which are not necessarily always matched in a corresponding availability of resources to deal with all of those duties. I am sympathetic to that position but however sympathetic I am, I cannot use that as a basis not to give effect, to my mind, to the clear consequences of the duty imposed on the local authority under Section l24 to provide an answer within four weeks.

63. If the local authority breaks that for understandable reasons, then it will not suffer any consequences because, in effect, the claimants do not have any immediate remedies. Nevertheless, it is a duty which they should seek to comply with, and if they have difficulties complying with it, they should draw their difficulties to the attention of would be applicants and seek an accommodation from them. If that procedure is gone through, I do not see that they can be criticised, and I do not see it can be said that they are therefore in breach of duty which is actionable at the behest of any party. But simply to do nothing, which is what happened in this case, for many weeks and then to impose a unilateral deadline is not the way to do it.

64. I come, therefore, to the question of the relief and I accept Mr Broatch's submissions that all I can grant is a declaration, a negative declaration, namely that the appellant's notice, seeking to exercise his right to buy, has not lapsed or been withdrawn and is still valid and subsisting. I think that is the way to put it, is it not, Mr Broatch?

MR BROATCH: My Lord, I am in your Lordship's hands. Would your Lordship like me to go through the order?

MR JUSTICE SMITH: Yes.

MR BROATCH: I think the first thing would be, "On hearing the applicant in person and the respondents, and from reading the documents on the Court file, it is ordered (l) that the appellant have leave to adduce additional evidence in the form of his - was it an affidavit of the 4^th June?

MR JUSTICE SMITH: Yes.

MR BROATCH: Affidavit of the 4^th June and exhibits thereto and then (2) the appeal herein be allowed and the order of His Honour Judge Cowell dated 5^th June 2003, be set aside and (3) it be declared that the appellant's notice to exercise his right to buy addressed to the respondents dated - bearing the date - I think it is 3lst October l999, I think was the date on the form.

MR JUSTICE SMITH: Yes.

MR BROATCH: Is and was a valid---

MR JUSTICE SMITH: Is still subsisting and has not been withdrawn.

MR BROATCH: Is still subsisting and has not been withdrawn or waived.

MR JUSTICE SMITH: Yes, I think that will cover it.

MR BROATCH: Would your Lordship (??) (??) or make a declaration as to the - what follows - I think it follows as a matter of law, in fact, that the authority then will have to make a Section l24 decision. We can put it in for the sake of safety.

MR JUSTICE SMITH: And that the respondents remain under a duty to respond to that application under Section l24 of the Housing Act l985.

MR BROATCH: Yes.

MR JUSTICE SMITH: Costs?

MR BROATCH: Can I sit down for a moment?

MR JUSTICE SMITH: Yes.

MR HANOMAN: (Inaudible).

MR JUSTICE SMITH: Why not, you won?

MR HANOMAN: Your Honour, not particularly a lot of costs, just the cost of photocopying the application and…

MR JUSTICE SMITH: How much? £50?

MR HANOMAN: Altogether it would be about l00 quid.

MR JUSTICE SMITH: £l00. Can I assess his costs at £l00?

MR BROATCH: I think that would be an extremely good idea from the authority's point of view.

MR JUSTICE SMITH: Yes. The respondents to pay the appellant's costs to be assessed at £l00, the costs of the appeal. Anything else?

MR BROATCH: I am just thinking of a stay on our obligation.

MR JUSTICE SMITH: For what purpose? Do you mean you want to appeal?

MR BROATCH: I am sure they would want to read your Lordship's judgment in print. I am not sure whether anyone would want to appeal or not. I think it is a very illuminating judgment---

MR JUSTICE SMITH: That is very flattering of you, Mr Broatch.

MR BROATCH: And it needs circulation.

MR JUSTICE SMITH: Not necessarily illuminating what I said but…

MR BROATCH: Wider than the persons present in this Court today.

MR JUSTICE SMITH: I will stay the judgment for l4 days.

MR BROATCH: But would you stay our obligation to make---

MR JUSTICE SMITH: Stay the enforcement of judgment for l4 days to enable you to decide whether or not you wish to seek permission to appeal.

MR BROATCH: Yes.

MR JUSTICE SMITH: In the event that you seek permission to appeal, you must make that application - are you going to make it to me or to the Court of Appeal?

MR BROATCH: Well, I think we would put it on the form.

MR JUSTICE SMITH: Mm?

MR BROATCH: We would probably put it on the form in the appellant's notice.

MR JUSTICE SMITH: You need my permission first, do you not?

MR BROATCH: No.

MR JUSTICE SMITH: Are you not going to bother to ask me for permission to appeal?

MR BROATCH: No, I am not because it is a second appeal and your Lordship cannot give it to me, with no disrespect.

MR JUSTICE SMITH: You are quite right. It is a second appeal, yes.

MR BROATCH: It is not out of disrespect to your Lordship, it is out of obedience to the statute provisions. This is a first appeal and even---

MR JUSTICE SMITH: Yes, I understand.

MR BROATCH: Your Lordship may remember the case of two people who had trouble with their mortgage.

MR JUSTICE SMITH: Yes.

MR BROATCH: Pender---

MR JUSTICE SMITH: Yes, you are quite right. But that was - the Judge himself heard an appeal from a District Judge.

MR BROATCH: Yes.

MR JUSTICE SMITH: And so that was the second stage but…

MR BROATCH: No---

MR JUSTICE SMITH: I am only first stage, am I not?

MR BROATCH: Yes but the appeal henceforward would be a second appeal and only the Court of Appeal can grant permission. Mr Hanoman applied and Judge Cowell could have granted permission but didn't. Hence he got it from Lindley J. Whereas your Lordship can't---

MR JUSTICE SMITH: I will grant you a stay then for l4 days to enable you to consider whether you seek permission to appeal. In the event that you seek permission to appeal, I will grant you a further stay until the application for permission to appeal is finally disposed of. Thereafter you will have to renew your application in the Court of Appeal.

MR BROATCH: Any further application for a stay to be made to the Court of Appeal?

MR JUSTICE SMITH: Yes.

MR BROATCH: Would your Lordship like me to prepare a draft - I am not sure whether a draft minute of order is appropriate but I will prepare one in whatever form it is---

MR JUSTICE SMITH: The associate would like you to do it.

MR BROATCH: The difficulty about serving on the appellant (??) (??).

MR JUSTICE SMITH: The minute of order is quite complicated, Mr Hanoman. It would be a lot easier if the forming of the minute of order could be settled between Mr Broatch and the associate and my involvement if necessary. Are you content for that to happen? And you will get a copy of it as it is finalised?

MR HANOMAN: Whatever your Lordship---

MR JUSTICE SMITH: We will do it that way.

MR BROATCH: I am obliged.

MR JUSTICE SMITH: Thank you both very much. The arguments have been very interesting.

MR BROATCH: And the judgment - as I said, I am sure it merits circulation amongst local authorities. Whether they will like it or not is another matter.

MR HANOMAN: Thank you, your Honour.

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