Introductory tenancies

This pages deals with three cases on the review of decisions not to continue the tenancy and service of the appropriate notice - s128 and s129 of the Housing Act 1996. The first with the time for the review and the second with whether or not it is possible to have a "conditional" review. The third deals with the form of the notice.


Review of decision

Time for review

R (on the application of Chelfat) v London Borough of Tower Hamlets

[2006] EWHC 313 (Admin)


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?


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).


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)"


Conditional review?

Camden London Borough Council v Stafford

[2012] EWCA Civ 839


It is not possible to have a conditional review decision.


T was an introductory tenant of L. Following complaints of anti social behaviour, relating to noise nuisance, L served a notice of possession proceedings under of the Housing Act 1996, s.128. T requested a review of that decision under HA 1996, s.129. On the review, L stated that the notice had been validly served. However, they then said that possession would not be appropriate, but instead, that they would:

  • Seek to assist with dealing with T’s former partner, who T said had been the cause of the noise nuisance;
  • Get T to sign an acceptable behaviour contract; and
  • Seek further assistance from another agency. They also said that one of the complainants was amenable to mediation and arranged for that.

Further complaints were then received from a number of neighbours about T’s continuing noise nuisance. L then decided to issue possession proceedings based upon the notice.

Requirements for possession

The requirements for possession in an introductory tenancy case revolve around the service of a notice and the ability of the tenant to seek an internal review of the decision to seek possession. If the landlord adheres to those requirements, then the court must make an order for possession. Housing Act 1996, s.128 (1) provides:

    “The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.”

The tenant has a right to request a review and by s129 (5):

    “The landlord shall notify the person concerned of the decision on the review. If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.”

First instance

The judge dismissed the claim for possession on the basis that although L had affirmed the service of the notice and its validity, it had then stated that possession was not appropriate. In those circumstances it could not be said to have confirmed the decision in the notice to seek an order for possession and therefore that notice could not be relied upon to bring proceedings. He further commented that all L needed to do was to serve a further notice. L appealed.


The Court of Appeal upheld the decision. The consideration of the appeal examined the situation in which a s128 notice could be upheld conditionally on review so as not to destroy its effectiveness. Kay LJ stated:

    “There is no doubt that the Review Panel consciously determined that the section 128 notice had been correctly and justifiably served. I observe that in the guidance given to local authorities by their national associations, it is stated (at paragraph 6.44) that the first purpose of a Review Panel is “to ensure that the notice has been correctly served”. However, ensuring correctness of service is not the limit of the statutory requirement. A review under section 129 is a review of “the landlord's decision to seek an order for possession”. That is the decision which is to be reviewed pursuant to section 129(2)and it is the “original decision” referred to in section 129(5) . The practical alternatives are that the Review Panel will either withdraw or confirm the original decision. Confirmation of the original decision does not oblige the local authority immediately to issue proceedings. …
    There is a further aspect of this case to which I should refer. It derives from the fact that, as I have said, a section 128 notice is a jurisdictional document. Only a properly served notice, confirmed on a section 129 review (where sought), opens the door to possession proceedings. For this reason, it is important that, when the original decision is 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 in the event of “the alternatives to possession” having broken down. Such an assertion would be pregnant with potential for factual dispute, the resolution of which would determine jurisdiction. Thus, complex “alternatives to possession” of an open-ended kind should not be attached to a review decision which is confirmatory in the sense of section 129(5) . Whilst I see the force of the policy considerations articulated in Stone , it behoves local authorities to ensure that, if they wish to preserve their original decision, they express confirmation of it with clarity and without encrusting it with complex “alternatives”. It seems to me that the decision taken by the Review Panel on 22 March was essentially reasonable. The consequence, however, was that, in the event of adverse developments, a new notice under section 128 would need to be served.”

Etherton LJ also addressed the issue of whether a notice could be served conditionally. He said:

    "I do not accept that a notice under section 128 can be expressed conditionally, that is to say as a notice that the court will be asked to make an order for possession but only if the tenant does not comply with certain conditions; or, to the same effect, as a notice that the court will be asked to make an order for possession but steps will not be taken to achieve that result so long as the introductory tenant complies with certain conditions. Equally, I do not accept that a review decision under section 129 which is so expressed is a confirmation of the decision notified under section 128 ."



Form of notice - two documents

Islington London Borough Council v Dyer

[2017] EWCA Civ 150


A notice served by a landlord on a tenant for the purposes of s128 of the Housing Act 1996 could be comprised in more than one document. There was no reason why an accompanying information leaflet should not be treated as part of the notice if the reasonable recipient would have understood that the documents were intended to be read together.

More detail

The Court of Appeal allowed the appeal. There was no prescribed form for a s128 notice. That being so, the starting point was whether the document or documents relied on could reasonably be described as a notice. Then, in order to comply with s128, the notice had to contain the other information which the section prescribed. Nothing in s128 limited the notice to a single page or document. It would be a question of objective fact whether the documents relied on formed part of the notice. The question was whether, objectively, both documents were intended to and did perform the function of a s128 notice.

In the present case, the judge had been wrong to attach importance to the way in which the relevant documents were drafted and to the nomenclature used in them. The “notice” document directed the tenant in terms not only to that document but also the notes in the information leaflet and that leaflet stated that it was intended ‘to accompany Notice of Proceedings’. There was no reason in principle why the information leaflet should not be treated as part of the notice required to be served under s128 if the reasonable recipient would have understood that they were intended to be read together.


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