The mandatory ground of possession under Housing Act 1985: out of time reviews

Friday 10 November 2017

Harris  v Hounslow London Borough Council [2017] EWCA Civ 1476, 5 October 2017

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Harris  v Hounslow London Borough Council [2017] EWCA Civ 1476, 5 October 2017

Mr Harris, the appellant, was the secure tenant of Hounslow London Borough Council, the respondent. On 17 November 2015, the police obtained a closure order, under the Anti-Social Behaviour Crime and Policing Act 2014 (ASBCPA 2014), in respect of the property where he lived, following complaints of noise nuisance and visitors loitering, smoking, drinking and using drugs in the stairwell.

On 23 December 2015, Hounslow issued Mr Harris with a notice under s83ZA Housing Act 1985 (HA 1985). The notice informed him that Hounslow intended to rely on the making of the closure order as a basis to seek possession of the property pursuant to s84A HA 1985: the mandatory ground of possession inserted into the HA 1985 by the ASBCPA 2014. The notice, in accordance with s83ZA HA 1985, informed Mr Harris of his right to seek a review of this decision under s85ZA HA 1985 within seven days, by 30 December 2015.

On 4 January 2016, solicitors acting on Mr Harris’ behalf emailed Hounslow to request an extension of time in which to request a review, explaining that they were in the process of obtaining information from the police about the closure order. Following a further request on 18 January 2016, Hounslow replied on 25 January 2016 refusing the extension of time.

Hounslow then issued possession proceedings on 29 January 2016. But in August 2016, before the matter had come before the court for a final hearing, Hounslow offered to review the decision. The review was completed a little over a week later, and confirmed the original decision to seek possession.

The matter came before the county court in October 2016. The District Judge dealing with the case held that there was no valid public law challenge to the decision to serve the notice but that Hounslow ought to have either granted the extension of time to seek the review, or withdrawn the notice and served a new one, thereby ‘starting the clock again’. However, the judge held, any procedural defect had been cured by the extra-statutory review carried out in August. Accordingly, Hounslow were entitled to a possession order.

The Court of Appeal dismissed Mr Harris’ appeal, though for different reasons to the judge at first instance. Under the HA 1985 Hounslow had no power to waive compliance with the statutory time limit in which a review request had to be made. This conclusion flowed from the language of the provisions in question and from the context in which they were used: that of a mandatory ground of possession designed to provide ‘swifter relief for victims, witnesses and the community’. Nor was Hounslow required to serve a fresh notice, restarting the clock, upon receipt of the review request since that would have run contrary to the legislative purpose. As such they had been correct to refuse to carry out the review in January 2016 and the judge had been right to make a possession order.

The full judgment is available here: Harris v Hounslow London Borough Council [2017] EWCA Civ 1476

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