Defendant local authority granting claimant introductory tenancy – Defendants serving notice upon claimant to terminate tenancy – Claimant requesting review of decision – Review hearing upholding defendants’ decision – Claimant seeking judicial review – Second review hearing upholding decision – Whether hearings effective reviews of defendants’ decision to seek possession – Section 129 of Housing Act 1996 – Whether review procedure complying with Article 6 of European Convention on Human Rights – Claim dismissed in part
In May 2000 the defendant district council granted the claimant an introductory tenancy for a flat. The terms of the agreement specified that the tenant was obliged not to cause a nuisance to neighbours. However, the defendants later received a number of complaints from neighbours and the police, regarding the claimant’s behaviour.
In September 2000, the council served a notice upon the claimant, pursuant to section 128 of the Housing Act 1996, stating their intention to apply to the court for an order terminating the tenancy. The claimant requested a review of the council’s decision to seek possession, and in October, a review hearing took place (the first hearing). The review board upheld the council’s decision as being reasonable. Subsequently, the defendant issued summons for possession and, in November 2000, a possession order was made. The claimant applied for judicial review and successive orders were made, which stayed the warrant of execution. Consequently, the claimant remained in occupation of the flat.
When permission to apply for judicial review was granted, the council agreed to conduct a further review. In May 2001, a second review board hearing took place (the second hearing). The claimant did not attend, and was not represented. The board upheld the earlier decision, and the claimant made a further application for judicial review.
A dispute arose as to whether the review hearings were effective reviews of the council’s decision to seek possession for the purposes of section 129 of the Act. In relation to the first hearing, the claimant’s principle ground of challenge was that the board had erred in focusing upon the Wednesbury reasonableness of the council’s decision, when it should have reviewed the merits of the case. In relation to the second hearing, the claimant contended, inter alia, that relevant documents were disclosed at a very late stage, and that the board had relied upon events that had occurred after the date of the first hearing. Further, section 129(6) of the Act required that the review had to be carried out prior to the date specified in the notice, namely October 2000, but the second hearing took place seven months after that date.An issue also arose as to whether the review procedure, as contained in sections 128 and 129 of the 1996 Act, complied with Article 6 of the European Convention on Human Rights.
Held: The claim was dismissed in part.
1. It was clear that, at the first review hearing, the board did not consider afresh the appropriateness of bringing possession proceedings; rather, it focused upon the reasonableness of such a decision. Such an approach was not in accordance with section 129 of the Act, which requires the landlord to consider the merits and the evidence afresh, and to reconsider whether the proper course is to take possession proceedings. Therefore, the first hearing was not an effective review of the council’s decision.
2. Neither a tenant nor his representative could properly play a part at a review hearing if the relevant information and documentation were not provided. It is implicit in Regulation 5 of the Introductory Tenancy (Review) Regulations 1997 that a tenant must have a proper opportunity to prepare for a hearing. However, that regulation has to be sensibly applied. In the instant case, the claimant could have been properly prepared in time had she chosen to attend the hearing, but she did not. The board was therefore entitled to have regard to events that took place both before and after the date of the first hearing.
3. There was a breach of section 129(6), but the Act did not deal with the consequences of such a breach. Further, no complaint was raised in relation to the first hearing, which also failed to comply with section 129(6). The board’s decision was not a nullity, and accordingly, the second review hearing was an effective review of the defendant’s decision. (R (on the application of Johns) v Bracknell Forest District Council, ex parte Johns (2000) 33 HLR 45 applied).
Richard Egleton (instructed by Phillips & Co, of Salisbury) appeared for the claimant; Timothy Straker QC and Iain Wightwick (instructed by the solicitor to Salisbury District Council) appeared for the defendants.
Sarah Addenbrooke, barrister
