Right to buy — Duty of local authority to give decision — Whether authority entitled to treat inactivity of appellant as withdrawal of application — Whether withdrawal required to be in writing — Sections 122 and 124 of Housing Act 1985 — Appeal allowed
The appellant made an application to the council to purchase his home under the right to buy provisions of Part V of the Housing Act 1985. Under section 124 of the Act, the council were under a duty to give a decision on the application within four weeks. Government Circular 21/84 advised that where there was any doubt as to an applicant’s entitlement, it was for a local authority to decide what steps to take to resolve the matter.
The council had concerns over the authenticity of the signature on the form. They did not raise that issue with the appellant, or request items of identification, until several weeks after the section 124 time limit had elapsed. In a telephone conversation with a council officer, the appellant stated that he did not have the requested items, and was told that someone would get back to him. Shortly afterwards, the council wrote a letter to the appellant stating, in effect, that if the appellant did not provide alternative items within seven days, the council would treat his application as withdrawn. The appellant did not receive that letter. As the council received no reply, they did not proceed with the appellant’s application. They failed to inform him that his file had been closed.
No further action was taken by either party until, two years later, the appellant brought proceedings in which he sought relief against the council’s decision to withdraw his application. The judge dismissed the claim, accepting the council’s argument that the appellant had effectively withdrawn his application by inactivity. On appeal, the appellant submitted, inter alia, that the effect of section 122(3), which provided that an application “may be withdrawn… by notice in writing”, was that it was not possible to withdraw an application by any other means.
Held: The appeal was allowed.
The council had no power under the Act to treat the application as withdrawn simply because the appellant had failed to comply with a time limit unilaterally imposed by them. The council were under a continuing obligation to make a decision on the application, either admitting or denying the right to buy. They had breached their duty under section 124 to make that decision within four weeks of the application. They had no power to extend time unilaterally. While it might be possible for a local authority and an applicant to agree an extension of time, in order to enable the necessary enquiries as to entitlement to be made, that had not been done in the present case. The guidance in the government circular could not affect the section 124 duty to give a decision within four weeks.
Notice in writing was not necessary in order to withdraw an application. Section 122(3) did not rule out withdrawal by other methods. However, mere inactivity on the part of the appellant was not sufficient to entitle the council to treat his application as withdrawn: Sutton London Borough Council v Swann (1985) 18 HLR 140 considered. The appellant had been under no obligation to chase up the council in the exercise of their statutory duty to reach a decision: Kensington and Chelsea London Borough Council v Hislop [2004] EWHC 2944; [2004] 1 All ER 1036 applied. The applicable principles were those of estoppel: there had to be some prejudice caused by the appellant’s delay. The council had to have acted on the basis that the appellant had given up his rights. It was also necessary that the appellant should know that he was giving up those rights. In the present case, the council had had no reason to believe that the appellant had given up his rights, and the appellant had clearly wished to proceed with his application at all times.
A declaration would be granted that the appellant’s notice had not lapsed or been withdrawn, and that the council were under a continuing duty to determine it.
The appellant appeared in person; Donald Broatch (instructed by the solicitor to Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
