In R (on the application of Kalonga) v Croydon London Borough Council [2022] EWCA Civ 670; [2022] PLSCS 79, the Court of Appeal has upheld the decision of the High Court that under the Housing Act 1985, a council has no express power to accept a request for a review of a decision to bring a flexible tenancy to an end once the 21-day time limit for making such a request under section 107E has expired.
The tenant occupied her property pursuant to the terms of a five-year fixed-term flexible tenancy granted by Croydon Council. Before the expiry of the fixed-term period the council commenced possession proceedings on the grounds of rent arrears and antisocial behaviour. The tenant successfully resisted that application on the basis that her tenancy could not be terminated before the expiry of the fixed-term period because her tenancy agreement did not contain a forfeiture clause. On appeal to the Supreme Court, it found that the council’s claim for possession was also bound to fail on other grounds.
Subsequently, the tenant’s flexible tenancy expired by effluxion of time on 26 May 2020. The council sought to recover possession of the property after serving her with a written notice pursuant to section 107D(3). The tenant claimed that she did not receive the notice at the material time because she was away from home. The notice therefore failed to come to her attention before the 21-day time limit for requesting a review under section 107E(1) had expired.
The tenant instructed solicitors to request a review out of time. She argued that the council had the power to grant her request under the general housing management powers contained in section 21. Alternatively, the power to grant an out of time review could be derived from section 1(1) of the Localism Act 2011. The High Court disagreed. The tenant appealed.
In dismissing the appeal, the Court of Appeal observed that the power of the council was derived from statute. The council, as a statutory body, could only act within the ambit of its powers; to do otherwise would be ultra vires. The general powers conferred by section 21 in respect of management, regulation and control of housing could not be used to circumvent statutory restrictions on the exercise of its powers. In principle, “the general must yield to the specific”, and that was also the case in respect of section 1 of the 2011 Act. The powers contained in the statutory provisions were ancillary to the exercise of primary powers and therefore could not fill a gap in such powers.
The starting point when considering whether the council had the power to extend time for a tenant to request a review under section 107E was the 1985 Act. A request for a statutory review could only be “duly made” under section 107E(2) if the requirements of section 107E(1) were met. If they were not, this would potentially impact on the operation of section 107D. This, together with the mandatory language of section 107E itself, strongly militated against there being any implied power to extend the time limit for making a request for a review.
Elizabeth Dwomoh is a barrister at Lamb Chambers
