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

Failure to complete a review under section 129(6) of the Housing Act 1996 within the specified period does not automatically invalidate possession proceedings. The consequence depends on the statutory scheme and the facts, including whether the omission can be remedied and whether the tenant has suffered prejudice. A late review may remain effective where the parties agree that it should proceed and possession proceedings are held in abeyance. Relief in judicial review remains discretionary. The court may require a review or quash proceedings where delay has deprived the tenant of a fair opportunity to place material information before the landlord, particularly where cogent merits-based representations might have affected the decision.

The claimant held an introductory tenancy from the defendant local authority. After rent arrears accrued, the authority served a notice of proceedings for possession under section 128 of the Housing Act 1996. The claimant sent a letter requesting a review to the Housing Benefit Unit rather than the Rent Arrears section. The authority consequently issued possession proceedings without conducting a review within the period specified by section 129(6). A possession order and warrant followed.

After the claimant obtained legal advice, the parties agreed that the warrant would be suspended and that a review would be conducted. The review took place on 19 August 2005 and confirmed the decision to seek possession. The claimant sought judicial review, arguing that the late review could not cure the failure to comply with section 129(6). The central issue was whether that delay made the possession proceedings invalid or required the court to grant relief.

1. The claim was dismissed. The possession proceedings were valid on their face and remained valid unless quashed by the court. Relief under judicial review was discretionary.
2. Section 129 of the Housing Act 1996 does not prescribe the form of a request for review. Unlike section 128, it contains no provision stating that the court shall not entertain possession proceedings unless the statutory requirement has been satisfied. A tenant may therefore request a review without using the authority’s prescribed form.
3. Section 129(6) is silent about the consequences of completing a review after the specified date. Whether delay is fatal depends on the circumstances of the particular case. The court applied the contextual approach in London & Clydeside Estates Ltd v Aberdeen DC [1980] 1 W.L.R. 226, under which statutory compliance is assessed against the concrete facts and the continuing chain of events.
4. The reasoning in McDonagh v Salisbury District Council [2001] EWHC Admin 567 was applicable. A late review is not necessarily a nullity, particularly where the delay is capable of remedy and the statutory purpose remains achievable. That purpose is to ensure that the landlord has the tenant’s information before deciding whether possession proceedings remain appropriate.
5. Here, the claimant’s solicitors expressly requested a review, agreed that the warrant should be suspended to enable it, and later sought further time to make representations. It was therefore inconsistent and unjust to contend that the agreed review was otiose because it had not occurred within the original period. The claimant had ample opportunity to make representations, no cogent merits-based challenge was made to the review decision, and no prejudice resulting from the delay was shown.
6. The court did not need to decide whether the wrongly addressed letter was itself a duly made request under section 129(2). The parties’ subsequent agreement independently justified treating the late review as capable of curing the omission in the circumstances.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.