R (Kalonga) v Croydon LBC

The Court of Appeal held that the London Borough of Croydon had no power to extend the statutory 21-day time limit for making a request for review under section 107E of the Housing Act 1985. Sections 107A–107E form a specific procedural code for flexible tenancies and, read together with the ultra vires principle in Hazell v Hammersmith and Fulham, exclude an implied power to vary the statutory timing where Parliament has omitted an express provision. Section 21 of the Housing Act 1985 and the general powers in the Local Government Act 1972 (section 111) cannot be used to circumvent that specific code. The Court followed the reasoning in Hounslow LBC v Harris that a request is only effective if ‘duly made’ within the statutory period and that absent an express power to extend time a landlord has no obligation or power to conduct a late statutory review.

This appeal arose from a judicial review challenge to a decision of Croydon London Borough Council that it had no power under statute to extend the 21-day period for a tenant to request a review of the council's decision not to grant a further flexible tenancy (section 107E, Housing Act 1985), and that even if it did have such power it would not exercise it in the claimant's favour.

Background and parties:

• The appellant (A) was the holder of a five-year flexible tenancy which expired in May 2020. The council served a notice under the flexible tenancy regime, triggering a 21-day period in which A could request a review under section 107E.
• A did not request review within that period, claiming she had not seen the notice while away; her solicitors asked the council for a 14-day extension and later supplied representations.
• The council responded that it had no power to extend the statutory period and, in any event, would not have granted an extension.

Procedural history: The appellant obtained permission for judicial review below; Cavanagh J dismissed the claim. The appellant appealed to the Court of Appeal with leave.

Issues:

1. Whether a local housing authority has power to accept an application for a review made after the 21-day period under section 107E(1) of the Housing Act 1985 (i.e. to extend or waive the statutory time limit).
2. If such a power exists, whether the merits of the underlying review are relevant to the exercise of the discretion to extend time.

Decision and reasoning:

• The Court held that sections 107A–107E constitute a specific and detailed statutory code governing flexible tenancies. Where Parliament has provided express powers to vary procedural requirements in some parts of that code (for example section 107B(4)(b) permitting a prospective landlord to allow a longer period for a review request), it is a strong indication that Parliament deliberately omitted such a power elsewhere (notably in section 107E).
• The ultra vires principle established in Hazell means that a local authority cannot, by relying on general management powers (section 21 Housing Act 1985) or ancillary powers (section 111 Local Government Act 1972), do what the specific code does not authorise. General management powers must yield to specific statutory provisions.
• The Court treated Hounslow LBC v Harris as directly on point and binding on the construction of similar mandatory time-limited review provisions: a request is effective only if ‘duly made’ within the statutory time and absent an express power to extend the time the landlord has no power or obligation to carry out a late statutory review.
• The Court noted that, independently of statutory rights, a local authority retains the practical ability as a matter of administration to reconsider or withdraw its earlier decision (an extra-statutory or administrative reconsideration) under powers such as section 111 or section 222 of the Local Government Act 1972, but that is not the same as conducting a statutory review under section 107E.

Conclusion: The appeal was dismissed. The council had no power to extend the time for requesting a review under section 107E; and even if it had, it stated it would not have exercised such a power.

The appeal is dismissed. The Court held that sections 107A–107E of the Housing Act 1985 form a specific statutory code and that, as a matter of statutory construction and the ultra vires principle, the council had no power to extend the 21-day time limit in section 107E. General management powers under section 21 of the Housing Act 1985 and ancillary powers (section 111 of the Local Government Act 1972) cannot be used to confer a power that Parliament did not include in the specific code. The Court followed the reasoning in Hounslow LBC v Harris that a request is only effective if ‘duly made’ within the statutory period. The council also said that, even if it had power, it would not have exercised it in this case.

Appeal from the High Court of Justice, Queen's Bench Division, Administrative Court (Cavanagh J), CO/3139/2020. Permission to apply for judicial review was granted below; the claimant appealed to the Court of Appeal, neutral citation [2022] EWCA Civ 670.