Landlord and tenant – Flexible tenancy – Review – Time limit – Respondent landlord serving notice on appellant tenant of intention to seek possession on expiry of flexible fixed-term tenancy – Appellant requesting review outside statutory time limit – Respondent refusing review – Judge deciding as preliminary issue that respondent having no power to extend time to apply for review – Appellant appealing – Whether judge erring in law – Appeal dismissed
In May 2015, the appellant was granted a five-year fixed-term secure flexible tenancy by the respondent local housing authority. Before the tenancy came to an end, the respondent served notices on the appellant pursuant to section 107D(3) of the Housing Act 1985, which provided a mechanism by which the county court could make a possession order after the expiry of the fixed term of a flexible tenancy, provided that the landlord followed the steps set out in section 107D.
The appellant requested a review of the respondent’s decision to serve the notices informing her that it did not propose to grant a new tenancy upon expiry of her flexible tenancy. That review request was made outside the 21-day deadline set out in section 107E(1) of the 1985 Act. The respondent refused the request on the basis it had no power to extend time for the appellant to request a review under section 107E and that, even if it did, it would not carry out a review on the facts.
The appellant was granted permission to bring a claim for judicial review. A preliminary issue arose whether the respondent could accept a request for a review of its proposal not to grant another tenancy notwithstanding the request being made more than 21 days after the purported service of a notice pursuant to section 107D(3). The judge held that the respondent had no power to extend the time for making an application for a review under section 107E: [2021] EWHC 2174 (Admin); [2021] PLSCS 14. The appellant appealed.
Held: The appeal was dismissed.
(1) The provisions inserted in the 1985 Act by section 154 of the Localism Act 2011 were the source of the respondent’s power to grant, and of the restrictions on its ability to end, a flexible tenancy. Therefore, they were the starting point for analysing the parties’ rights and duties in that context. They were a specific substantive and procedural code about flexible tenancies. To the extent that they made express provision, or provision by necessary implication, they were an exhaustive statement of a tenant’s rights, and of the procedural functions of a local housing authority, as respects flexible tenancies.
In that context, the ultra vires rule, as explained in Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, was important. If a local housing authority did not have an express power to do ‘x’, then it could not do ‘x’, unless ‘x’ was within section 111 of the Local Government Act 1972, as something which was calculated to facilitate, or was conducive or incidental to, the exercise of an express function. Moreover, more general powers (such as section 111 of the 1972 Act and section 21 of the 1985 Act) could not confer a power on an authority to do things which, if there was a specific code governing the function in question, that code did not expressly authorise.
(2) Section 107B(4)(b) of the 1985 Act expressly gave a local housing authority power to extend a time limit for making an application; section 107C(4) permitted a local housing authority to agree to dispense with specific statutory requirements. Those provisions showed that parliament had chosen, in those two contexts, to confer an express power on a local housing authority to change the statutory procedural requirements in some circumstances, in two different respects. So that technique was known, and available, to parliament. Parliament had nevertheless chosen not to confer such a power on a local housing authority in the context of section 107E. The ultra vires rule meant that, in those circumstances in which parliament had not expressly conferred a power to change the procedural requirements of the code, a local housing authority simply had no power to do so.
As a matter of language, the juxtaposition, in closely connected provisions, of an express power to change procedural requirements in some, and of its absence in others, was a strong indication that, by necessary implication, there was no such power in the provision from which the express power was missing. Section 111 of the 1972 Act did not change that analysis. If the relevant code contained no power to extend the time for making an application for a review of a decision to seek possession, section 111 could not confer one.
(3) The appellant’s main submission was that the general power of management conferred by section 21 of the 1985 Act was wide enough to enable the respondent to consider a request for a review which was made outside the time stipulated in section 107E(1).
However, sections 107A-107E of the 1985 Act were a detailed and specific procedural code about flexible tenancies. Section 21, on the other hand, was a wide general power. On conventional principles of statutory construction, general provisions could not be relied on to cut down, or to contradict (or to supplement, in the context of local authority powers), specific provisions. In principle, the general had to yield to the specific. Further, section 21 was a general power to manage, regulate and control a local housing authority’s houses. The posited power to supplement a detailed statutory substantive procedural code about a particular type of new tenancy was not, in any respect, an exercise of a power to manage, regulate or control houses (or other accommodation): Harris v Hounslow London Borough Council [2017] EWCA Civ 1476; [2018] PTSR 1349 followed.
In the present case, the respondent was right to say that it had no power to extend the time for requesting a review under section 107E of the 1985 Act.
(4) (Per Andrews LJ) The decision in Hazell mandated that, when considering whether a local housing authority had the power to do something, such as carry out a formal review of a decision it had made, the first step in the analysis had to be to ask whether the relevant statute had conferred any express power on the local authority and, if so, whether as a matter of statutory construction, that power was limited in any way.
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors, of Manchester) appeared for the appellant; Riccardo Calzavara (instructed by Croydon London Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
