Laporte, R (on the application of) v London Borough of Newham

Where a landlord revises the reasons for seeking possession of an introductory tenancy, the statutory review should address only the reasons specified in the notice under Housing Act 1996, section 128. A further notice is therefore ordinarily required for materially additional grounds. Relief may nevertheless be refused where the procedural defect causes no material prejudice. Relevant considerations include whether the tenant received the allegations, had an effective opportunity to answer them, and whether the original grounds independently justified possession. The court may exercise its discretion to withhold substantive relief where the decision would inevitably have been the same and the tenant had a fair opportunity to address the case against her.

The claimant held an introductory tenancy from the defendant local authority under chapter 1 of part V of the Housing Act 1996. The authority served a notice under section 128 based on rent and water-charge arrears. During the review process it notified the claimant of additional nuisance allegations concerning her son. The review confirmed the decision to seek possession on both the arrears and nuisance grounds. Later correspondence referred to further allegations, one of which was wrongly attributed to the claimant’s son.

Possession proceedings were commenced in the County Court. The claimant sought judicial review, arguing that the authority had relied on grounds not specified in the section 128 notice and on allegations never put to her. The central issues were whether a further notice was required and whether relief should be granted despite any procedural defect.

1. The application for judicial review was refused. The court declined substantive relief because no real prejudice had been caused to the claimant.

2. The statutory scheme requires the section 128 notice to state the reasons for the decision to seek possession. The review under section 129 should be a review of that decision and those reasons. It should not become a review of a later decision based on additional grounds. A new section 128 notice would therefore ordinarily be required where materially different grounds are introduced.

3. The approach described by Crane J in Forbes v London Borough of Lambeth [2003] EWHC 222 (Admin) was principally concerned with procedural compliance with Articles 6 and 8 of the Convention. The tenant must have an opportunity to challenge the allegations and to argue that possession is not reasonable on the facts. The claimant had received details of the additional allegations, they had been considered at the review, and they had been reconsidered at a later meeting.

4. The arrears grounds remained valid and independently supported the decision. The judge accepted the evidence that the same decision would have been made without the nuisance allegations. The subsequent erroneous allegation did not cause material injustice because the claimant had an adequate opportunity to address the relevant matters and the arrears were sufficient in themselves.

5. The court distinguished the different procedural situations identified in argument, including the situation considered in Cardiff City Council v Stone [2003] EWCA Civ 298. It also noted the statutory and Convention analysis arising from R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129.

Leave to appeal was refused. The decision turned on the discretion to withhold relief for absence of prejudice. Costs followed the event, subject to the usual arrangements for publicly funded costs.

The judgment records that possession proceedings were commenced in the County Court on 16 October 2002. The claimant then brought judicial review proceedings in the Administrative Court. No separate appellate decision is stated.