This page includes material onCalculation of the one-year period
Extension of one-year period by six months.
Evidence required before the court relating to the review.
Section 128 notices.
Succession - civil partnerships.
Time for carrying out the review prior to proceedings.
Calculation of one-year
Salford County Council v Garner
[2004] EWCA Civ 364
Summary
Calculation of one-year period under ss 125 and 130 of the Housing Act 1996, after which the introductory tenancy converts to a secure tenancy.
Facts
Tenancy agreement stated to have begun on 12 November 2001 but the tenant was given the keys and was allowed to go into occupation on 9 November 2001. He went into occupation the next day. On 7 November 2002 C lodged a claim form for possession but proceedings were not issued until 11 November 2002. For the purposes of s130 proceedings were not begun until issue of the claim on 11 November. At that date T had been in possession for a year (i.e. from the date he was handed the keys on 9 November 2001) and he had become a secure tenant. The wording of PD7, para 5.1 (which states that proceedings are brought when the claim form is received by the court) applies to claims brought under the Limitation Act 1980 and not to s130.
Extension of one year period
The Housing Act 2004 contains provisions for extending the introductory tenancy by six months (3rd commencement order).
s179 of the Housing Act 2004
If a landlord wishes to extend an introductory tenancy, he must serve the tenant with a notice of extension setting out the reasons for his decision and informing the tenant of his right to request a review of the landlord's decision and the time in which such a request must be made. These Regulations make provision in respect of the procedures to be followed in such a review.
The Introductory Tenancies (Review of Decisions to Extend a Trial Period) (England) Regulations 2006 (SI Number: 2006/1077)
The Introductory Tenancies (Review of Decisions to Extend a Trial Period) (Wales) Regulations 2006 - In force 17 November 2006.
Human rights - evidence of review
R (on the application of McLellan) v Bracknell Forest BC
[2001] EWCA Civ 1510
Review procedure complies with HRA
The Introductory Tenancy scheme of the Housing Act 1985 does not breach articles 6 or 8 of the European Convention on Human Rights. The review procedure of the scheme taken together with judicial review, and the ability of a county court to adjourn a possession claim for judicial review to take place, provides adequate protection to the tenant.
Evidence
However: "It should be the norm for the council to spell out in affidavits (sic) before the County Court judge [in the possession claim] how the procedure was operated in the individual case dealing with the degree of independence of the tribunal from the persons who took the original decision, the way the hearing was conducted and the reason for taking the decision to continue with the proceedings. In that the way the judge will have the information on which he can take an informed view as to whether the matter should be adjourned to allow for an application to be made for judicial review.. (Waller LJ, para 103)."
On the other hand, in Merton LBC v Williams [2002] EWCA Civ 980 it was held that it is not necessary to provide the evidence suggested in McLellan because the tenant had not attended the review hearing and the reviewing officer had no new material before him. Such evidence is most appropriate to contested review hearings."[The passage in McLellan] fits most readily into a situation where a tenant has sought and contested a review hearing (so that arguments will have been rehearsed on both sides), and will clearly wish to continue, so far as possible, to contest the actual making of any possession order. Having regard to the statutory requirement under section 129(5) for the landlord to give written notice of its review decision and the reasons for it, the normal expectation would be that production of that written notice would also satisfy the requirement to produce evidence regarding 'the reason for taking the decision to continue with the proceedings'...
The tenant here failed to attend the review hearing, and the matter proceeded without representation or argument. The reviewing officer cannot have had before him any new material. So the scope for any evidence, and for any different or fuller reasons compared to those given for the original decision, was considerably restricted". (Mance LJ, paras 35 and 36).
Notice to tenant
R (on the application of Stone) v Cardiff City Council [2002] EWCA Civ 298; [2003] All ER(D) 379 (Jan)
(Referred to and applied in the next case).
Section 128 of the Housing Act 1996 includes the following provisions:"128(1) The court shall not entertain proceedings for a dwelling house [let on an introductory tenancy] unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made." The local authority served a notice of proceedings under s128(3) on 6 August 1999 because of rent arrears of £419.56. Following a statutory review the tenant was told that she could keep the accommodation if she repaid the arrears at £3 per week. The wording of the decision letter stated:"I would confirm that the decision to terminate your tenancy by serving you with a Notice is upheld, however, the Panel decided to suspend action at this stage on condition that the weekly collectable rent and £3.00 be paid each week without fail... Should any payments not be made, an application for possession will be made to the county court". Subsequently, the arrears built up and by April 2000 they were £510.21. The council then commenced possession proceedings. Even though this was some months later the CA held that the council was not required to serve a second s128 notice.
R (on the application of Forbes) v Lambeth LBC
[2003] EWHC 222 (Admin)
Facts
Local authority served a s128 notice. T requested a review. Following the review the authority then wrote stating that it had decided not to proceed with terminating the tenancy but would "be monitoring your tenancy for a period of 12 months and then will review the situation". Some months later the authority wrote a letter stating that it had received further complaints and that it had "no alternative but to continue the legal proceedings commenced (sic) when the Notice of Proceedings was served". The authority then commenced proceedings for possession. T challenged the validity of the proceedings.
Held
A council may uphold a notice but suspend or defer the actual taking of proceedings (Stone) but this is not what happened here. The first notice had been withdrawn and the subsequent letter indicating an intention to proceed was insufficient. It was necessary to serve a fresh s128 notice giving T the opportunity to seek a fresh review. That would also have been necessary to comply with articles 6 and 8 of the ECHR.
Succession - civil partnerships
The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (SI No. 3336)
Reg 20 amends section 131(a) of the Housing Act 1996 (persons qualified to succeed tenant) by inserting the words "or civil partner" after the word spouse. This allows a civil partner to succeed to a an introductory tenancy in the same as a spouse may succeed.
Time for review
R (on the application of Chelfat) v London Borough of Tower Hamlets
[2006] EWHC 313 (Admin)
Introduction
Section 129(6) of the Housing Act 1996 provides that:"The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun." What if the review is not carried out by that date? Does it nullify any subsequent proceedings?
Facts
In this case the review was not carried out within the time limit because of a misunderstanding. The local authority had understood the tenant's letter requesting a review to refer to a review of a housing benefit decision. The authority then obtained an order for possession. When the matter was clarified a review of the decision to bring proceedings was carried out at the tenant's request and enforcement of the order for possession was suspended pending the review. Notwithstanding the review the authority confirmed its decision to bring proceedings. The tenant then applied for judicial review arguing that the proceedings were a nullity because the review had not been carried out within the time period set out in s129(6).
Decision
The argument was rejected. Reviews carried out after the time period can be valid (McDonagh v Salisbury District Council [2001] EWHC Admin 567); and whether or not it is right to quash a local authority's decision to bring proceedings is a matter of discretion depending upon all the circumstances. In this particular case, the tenant's solicitor had positively requested the review out of time and so it would not be right to quash the decision. Sullivan J:"In the light of the express agreement that there should be a review and that the warrant for possession should be suspended to enable that to be carried out, it is wholly inconsistent for the claimant now to argue that the possession proceedings should not have been issued at all because there had not been any review within the timescale prescribed by section 129(6). I appreciate that that argument was raised, among many others, in the letter from the claimant's former solicitors on 11 October 2004, but in reality they were seeking to have their cake and eat it. They had positively asked for a review and continued to participate in it. (para 26)
Since Section 129(6) is silent as to the consequences of a failure to comply with the time limit, whether a delay in carrying out a review will or will not be fatal to a decision to commence proceedings will turn upon the facts of the particular case. If the failure has been due to a genuine oversight which is capable of being remedied, there would seem to be no good reason to prevent a landlord from remedying the omission. The underlying purpose of the provision is to ensure that before commencing proceedings, the landlord will have all the information that the tenant wishes to place before him to hand, and be able to review the appropriateness of commencing proceedings in the light of the most recent information from the tenant. It seems to me that those objectives are capable of being achieved, even though a review is carried out, as in the present case, after the expiration of the time limit. (Para 27)
Against that background, and simply as a matter of the court's discretion, it would be wholly unjust to the defendant to allow the claimant now to say that that entire exercise was otiose because, from the very beginning, the possession proceedings were invalid
simply on the basis not that there had been no review, not that there had been any error in the review, but simply that the review had not been carried out within a particular timescale. (para 30)"
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