Chowdhury & Anor, R (on the application of) v London Borough of Newham

A housing authority’s decision concerning an introductory tenancy must be assessed by reference to the facts known, or which ought properly to have been known, when the decision was made. An introductory tenant has an active responsibility to understand the tenancy obligations, respond to correspondence and provide the information needed for a housing benefit claim. A review must consider the substance of the decision afresh, but the reviewing body can only act on the material placed before it. Persistent failure to pay, respond to warnings or engage with the authority may justify possession proceedings even where arrears are later cleared.

The claimants held an introductory tenancy granted by the defendant housing authority. The authority served notice to terminate after rent and water-rate arrears accumulated, reviewed that decision, issued possession proceedings and later refused to discontinue them despite payment of the arrears.

The claimants sought judicial review of the review decision, the issue of possession proceedings and the decision to continue them. They argued that the arrears resulted principally from failures in administering housing benefit and that the review had not properly reconsidered the matter. The central issue was whether the authority’s decisions were ones which no reasonable housing authority could have made.

1. The claim was dismissed. The reasonableness of each decision had to be judged on the facts known to the authority at the relevant time, including facts which proper enquiry should have revealed.
2. The introductory tenancy scheme placed the tenant on probation while the authority assessed suitability and reliability. The claimants’ failure to respond to repeated requests for information, reminders about arrears and the notice to terminate was relevant to that assessment. A tenant who does not understand the tenancy obligations or correspondence must take reasonable steps to obtain assistance. Failure caused by ignoring correspondence remains the tenant’s responsibility.
3. The same principle applied to the housing benefit claim. The claimants were required to provide the necessary information or notify the benefit department of any difficulty. Their failure to do so caused the first claim to fail, and the refusal initially to backdate benefit was justified on the evidence then available.
4. The review decision was lawful. The review panel was entitled to consider the complete factual picture, including the claimants’ later payment proposals, their failure to make representations and the history of inaction. It could act only on the material placed before it. The requirement for a fresh reconsideration of the merits under section 129 of the Housing Act 1996, identified in Anne McDonagh and Salisbury District Council [2001] EWHC Admin 567, did not require the panel to disregard material which the claimants had failed to provide.
5. The issue and continuation of possession proceedings were also reasonable. The later payment of arrears and successful housing benefit appeal did not erase the earlier history of persistent non-payment and failure to engage. The authority was entitled to regard the claimants as unsuitable introductory tenants, while deciding not to seek a warrant provided the account remained clear or in credit.

Costs were ordered in favour of the defendants, subject to the specified restriction concerning section 11 liability under the Access to Justice Act 1999. Detailed assessment of the claimants’ publicly funded costs was ordered. Permission to appeal was refused.

The judgment was a first-instance judicial review. The related County Court possession proceedings had been adjourned pending determination of this claim.