Local authority – Housing – Possession – Appellant local authority serving notice on respondent introductory tenant of possession proceedings – Decision letter following review considering alternatives to possession proceedings – Appellants subsequently issuing proceedings pursuant to original notice – Whether judge correctly concluding that review decision not amounting to confirmation of original decision – Appeal dismissed
The respondent had obtained an introductory tenancy of a one-bedroom flat owned by the appellant local authority under an agreement dated 4 January 2010. Almost immediately, the appellants began to receive complaints about noise from the flat and, on 18 February 2010, they served a notice of proceedings for possession pursuant to section 128 of the Housing Act 1996. The respondent requested a review pursuant to section 129. In her letter, she apologised for any nuisance caused and said that her ex-partner had been responsible for most of it and would not be returning. The review decision was notified in a letter dated 22 March 2010. It stated that the notice had been correctly and justifiably served but that an application for possession of the property should not be made at that time.
Following further complaints about the noise, on 19 April 2010, the appellants issued proceedings for possession based on the notice of 18 February. The respondent asserted, inter alia, that the statutory requirements had not been met because the review panel had decided not to pursue proceedings for possession and had not thereafter served a fresh section 128 notice.
The county court concluded that, since the review decision notice dated 22 March 2010 did not confirm the decision to seek an order for possession, it was not open to the appellants to rely on the section 128 notice served previously in order to seek possession. Given the evidence of continuing appalling behaviour, all the appellants needed to do was to serve another section 128 notice immediately after the review decision. The appellants appealed.
Held: The appeal was dismissed.
The court could not accept the argument that the judge’s investigation should not have been limited to the review decision letter but that he should have had regard to evidence contained in the various witness statements. Quite apart from the fact that any sensible local housing authority would notify such a decision in writing if only for its own protection in future litigation, the word “notify” in section 129(5) imported the requirement for a notice and the question was whether that notice contained the required information: Ali v Birmingham City Council [2009] EWCA Civ 1279, [2011] HLR 17 considered.
In order to rely on an earlier notice of proceedings served pursuant to section 128 following a review, the decision letter, properly construed, had to constitute an unequivocal confirmation of the notice which, when read together with a schedule, sufficiently communicated the reasons for that confirmation: Cardiff City Council v Stone [2003] EWCA Civ 298, [2003] HLR 47 and Forbes v Lambeth London Borough Council [2003] EWHC 222 (QB), [2003] HLR 49 considered.
In the present case, the decision evidenced by the letter of 22 March did not amount to a confirmation of the original decision to seek possession. Instead, the review panel members, having regard to their assessment of the respondent at that time, had considered that there were alternatives to possession proceedings, eg mediation and an acceptable behaviour agreement. In effect, the appellants were thereby creating a situation in which, in the event of further anti-social behaviour, they would no longer be able to rely on the original section 128 notice but would have to begin the process again.
A section 128 notice was a jurisdictional document. Only a properly served notice, confirmed on a section 129 review, where sought, opened the door to possession proceedings. Thus, it was important that, when the original decision was confirmed on review, jurisdiction should be a matter of clarity. If the review decision in the present case could be correctly construed as one of confirmation of the original decision, it could only be on a conditional basis. Possession would only be sought if the alternatives to possession had broken down. Such an assertion gave rise to potential factual disputes, the resolution of which would determine jurisdiction. Thus, complex “alternatives to possession” of an open-ended kind were not to be attached to a review decision which was confirmatory in the sense of section 129(5). Local authorities had to ensure that, if they wished to preserve their original decision, they expressed confirmation of it with clarity and without encrusting it with complex alternatives.
In the present case, the decision taken by the review panel on 22 March was essentially reasonable. However, the consequence was that, in the event of adverse developments, a new notice under section 128 would need to be served. Accordingly the judge had been correct to conclude that it was no longer open to the appellants to rely on the section 128 notice.
Andrew Arden QC and Abimbola Badejo (instructed by Camden London Borough Council) appeared for the appellant; Jan Luba QC and Victoria Osler (instructed by Hodge, Jones & Allen LLP) appeared for the respondent.
Eileen O’Grady, barrister
