Harris v London Borough of Hounslow

A request for a statutory review made after the seven-day period in section 85ZA(2) of the Housing Act 1985 is not duly made. The local-authority landlord has neither an obligation nor a power to waive that limit and conduct the statutory review. The time limit serves the public interest in swift relief from serious anti-social behaviour, rather than the landlord alone.

The landlord has no duty to serve a fresh notice to give the tenant another review period. General public-law duties may still govern a landlord’s later decisions to commence or continue possession proceedings, but they cannot undermine the statutory scheme for the mandatory ground.

Following complaints of persistent noise, visitors and anti-social behaviour at Mr Harris’s flat, a magistrates’ court made a three-month closure order. The London Borough of Hounslow then served a notice seeking possession under the mandatory ground in the Housing Act 1985.

Mr Harris’s solicitors sought an extension to request a review after the seven-day deadline had expired. Hounslow refused, issued possession proceedings, and later conducted a review which confirmed its decision. District Judge Trigg made a possession order. She considered that Hounslow should have extended time or served a fresh notice, but that the later review cured the defect.

The appeal concerned whether Hounslow could accept an out-of-time request for a statutory review, whether it had to serve a fresh notice, and whether public-law principles prevented possession.

Decision

1. The appeal was dismissed unanimously. The possession order stood, although the court reached that result for reasons differing from those of the district judge.

2. Section 85ZA(2) of the Housing Act 1985 imposes an inflexible seven-day period for requesting a review. A landlord cannot alter that statutory limit by granting an extension. Nor can it waive compliance by accepting an out-of-time request. The speed of the closure-order and mandatory-possession scheme serves victims, witnesses and the community. The limit is therefore not for the landlord’s sole private benefit, unlike the principle discussed in Kammins Ballrooms, [1971] AC 850.

3. Under section 85ZA(3), the landlord’s duty to review arises only on a request duly made. A request made outside the seven days is not duly made. Consequently, the landlord has no review obligation and the restriction in section 84A(2) does not prevent reliance on the mandatory ground.

4. The landlord had no duty to withdraw its notice and serve a fresh one. That would defeat Parliament’s choice of a swift procedure. On the facts, no fresh notice had been sought and no grounds had been given showing why a review might produce a different decision.

5. General public-law principles remained capable of applying to later decisions by a local-authority landlord to issue or pursue possession proceedings. Applying Central Bedfordshire Council, [2009] EWCA Civ 613, the court held that those principles did not create a statutory review or otherwise circumvent the legislative scheme. The later review accordingly did not require determination of whether a procedural defect could retrospectively be cured.

• Court of Appeal (Civil Division). Appeal dismissed. The court upheld the possession order but rejected the district judge’s reasoning that Hounslow should have extended time or served a fresh notice.
• Staines County Court. On 13 October 2016, District Judge Trigg made a possession order. She held that a later review conducted during the proceedings cured the procedural defect she had identified.