The Queen (on the application of Kalonga) v London Borough of Croydon

A local housing authority has no power to extend the mandatory 21-day period for requesting a review under section 107E of the Housing Act 1985. The flexible-tenancy provisions form a specific substantive and procedural code. A request is “duly made” only if it complies with the statutory time limit.

General housing-management and ancillary powers cannot supplement or circumvent that code. The absence of an extension provision in section 107E, contrasted with express powers elsewhere, precludes an implied power. This does not prevent an authority from reconsidering or withdrawing its own decision under a distinct discretionary power.

The appellant held a five-year flexible tenancy granted by the London Borough of Croydon. The Council decided not to grant a further tenancy and served notice under section 107D(3) of the Housing Act 1985. The appellant requested a review after the 21-day period prescribed by section 107E(1). The Council said that it lacked power to extend time and that it would not have granted an extension in any event.

Cavanagh J dismissed the appellant’s claim for judicial review. On appeal, the central issue was whether the Council could accept an out-of-time request by relying on its general housing-management or ancillary statutory powers.

1. Appeal dismissed. The flexible-tenancy provisions inserted into the Housing Act 1985 by section 154 of the Localism Act 2011 form a specific substantive and procedural code. So far as that code makes provision expressly or by necessary implication, it exhaustively states the tenant’s rights and the authority’s procedural functions concerning flexible tenancies.

2. A local authority derives its powers exclusively from statute. Where legislation confers powers for a particular purpose, conduct which is neither expressly nor impliedly authorised is prohibited. The correct starting point is therefore the specific statutory code, not the general management power in section 21 of the Housing Act 1985.

3. Section 107E(1) requires a review request to be made within 21 days after service of the section 107D(3) notice. Under section 107E(2), the authority’s obligation and power to conduct the statutory review arise only where a request is “duly made”. A request is duly made only when it complies with every mandatory requirement, including time. The materially identical construction adopted in Hounslow London Borough Council v Harris [2017] EWCA Civ 1476 was binding.

4. The statutory context excluded any implied extension power. Section 107B(4)(b) expressly permits a longer period for a different flexible-tenancy review, and section 107C(4) permits specified requirements to be dispensed with. Parliament used neither technique in section 107E. The effect of a compliant request upon possession proceedings under section 107D(6) further supported strict compliance.

5. Neither section 111 of the Local Government Act 1972 nor section 21 of the Housing Act 1985 could supply the missing power. General or ancillary powers cannot contradict, circumvent or supplement a specific statutory code. Conducting this statutory review was not, in any event, an exercise of managing, regulating or controlling houses.

6. The absence of an extension power is distinct from an authority’s power, in an appropriate case, to reconsider and withdraw its own decision. Such reconsideration is discretionary and may be supported by sections 111 and 222(1) of the Local Government Act 1972, or sometimes section 12 of the Interpretation Act 1978. It does not amount to an out-of-time statutory review. Andrews LJ agreed and Dingemans LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Court upheld the conclusion that the Council lacked power to extend the section 107E review period.
2. High Court, Administrative Court: Cavanagh J dismissed the application for judicial review and granted permission to appeal.