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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Camden v Stafford [2012] EWCA Civ 839 (20 June 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/839.html Cite as: [2012] WLR(D) 184, [2012] 26 EG 97, [2012] EWCA Civ 839 |
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ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HHJ BAILEY
0CL01123
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ETHERTON
and
LORD JUSTICE AIKENS
____________________
LONDON BOROUGH OF CAMDEN![]() |
Appellant |
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| - and - |
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STAFFORD![]() |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Jan Luba QC and Ms Victoria Osler (instructed by Hodge Jones & Allen LLP) for the Respondent
Hearing date : 16 May 2012
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
"128
(1) 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.
(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.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
…
(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.
…
129
(1) A request for review of the landlord's decision to seek an order for possession of a dwelling house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.
(2) On a request being duly made to it, the landlord shall review its decision.
(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section. Nothing in the following provisions affects the generality of this power.
…
(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.
(6) 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."
Thus, during the introductory period there is a procedure whereby the landlord can terminate the tenancy and obtain possession of the dwelling house without the need to prove grounds for possession such as apply in relation to secure tenancies by reason of Part 4 of the Housing Act 1985.
The facts
Stafford
is now aged 24. She left her family home at the age of 16 and initially lived either in hostel accommodation or as an informal lodger in the homes of friends. At times she was enduring street homelessness. In 2009 she was placed on the housing register of the London Borough of
Camden
(the Council). Eventually she obtained an introductory tenancy of a one bedroom flat at 61 Broadfield Lane into which she moved on 21 December 2009. Her introductory tenancy agreement is dated 4 January 2010.
Stafford
requested a review pursuant to section 129. In her letter, she apologised for any nuisance caused and said that her ex-partner had been responsible for most of it and would not be returning. She also questioned the motives of one of the complainants.
"Decision
The Panel decided that the Notice was correctly and justifiably served: there had been allegations of anti-social behaviour expressed by four complainants between 29 December and the date of service of the Notice. You accepted that at least some of these complaints were justified. However, we do not believe that an application to the court for possession of the property should be made at this point in time.
Recommendations to Maiden Lane housing officers
Whilst the decision to serve the Notice is upheld, we consider that the following alternatives to possession proceedings should be implemented, as discussed with you during the meeting:
1. The police should be contacted for clarification of the nature of the warning or court order in respect of your former partner. The behaviour of your former partner is a key element of some of the initial complaints.
2. An Acceptable Behaviour Agreement shall be prepared for your signature. As explained, this is not a legal document but it could be produced in court if any commitments you make within it are breached.
3. Julian Coutts [the anti-social behaviour manager] will ask a member of YISP Plus … to contact you to discuss your difficulties and what support can be offered to help you overcome them. Details of YISP Plus are enclosed.
In the meeting you seemed keen to ensure that your neighbours should have no further cause for complaint and you clearly understood the potential consequences of continuing complaints if they appear to be warranted. I explained that the courts have no discretion in granting a possession order if the Council follows the correct procedure in entering its claim."
I should add that YISP stands for Youth Intervention Support Panel.
Stafford
to say that he would draft an Acceptable Behaviour Agreement and that the principal complainant neighbour had agreed to mediation. However by 30 March further complaints had been received and Mr Togher wrote to Ms
Stafford
in these terms:
"I have received further complaints from several neighbours about continuing noise nuisance from your flat. The reports state that nearly every night you have had friends visit, who make a lot of noise entering and leaving the building, loud music being played in your flat, and people shouting and arguing in your flat. This activity has prompted a lot of complaints and in light of the increased level of complaints there is no point in pursuing mediation, since it is no longer one neighbour making complaints. Regarding the Acceptable Behaviour Agreement, I am seeking advice as to whether there is any need to go ahead with this, since your noise nuisance seems to have got worse since the Review meeting. It is now likely that we will have to apply to court for possession of your property. Before I take this action I want to discuss this matter with you. Please could you come into the office on Thursday April 1st at 2.30pm."
It seems that Ms
Stafford
did not attend on that occasion. There was some email traffic between Mr Togher and his colleagues but I do not need to refer to that at this stage.
Stafford
asserted that the statutory requirements had not been met because the Review Panel had decided not to pursue proceedings for possession and had not thereafter served a fresh Notice pursuant to section 127. She also asserted that the decision to issue Possession Proceedings was ultra vires because it was taken by Mr Togher, an officer of the Council who was junior to the Review Panel; that she had a legitimate expectation that proceedings would not be issued unless and until the contemplated alternative measures had been put in place; that the decision to issue proceedings was irrational; and that to evict her from the flat would be a disproportionate interference with her rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The proceedings
"The sole question for the Court is this: does the review decision notice dated 22 March 2010 confirm the decision to seek an order for possession or does it do otherwise? Quite plainly, in my judgment, it does otherwise. As soon as the decision notice does not confirm the decision to seek an order for possession it is not then open toCamden
to rely on the section 128 notice previously served in order to seek possession."
He observed that all the Council needed to do, given the evidence of continuing "appalling behaviour", was to serve another section 128 Notice immediately after the review decision. In the circumstances, he did not proceed to deal with the other grounds upon which Ms
Stafford
had sought to defend the proceedings.
Stafford
, whilst seeking to uphold the decision of the judge for the reasons which he gave, continues to press her alternative defences if that should be necessary.
Discussion
Stafford
of its review decision. It is submitted on behalf of the Council that he ought not to have limited his investigation in that way but, rather, he should have had regard to evidence contained in the witness statements of Mr Robson, Mr Coutts and Mr Togher. In my judgment, he was right to reject such an approach. It is predicated in part on a submission that the statute does not require the decision or its communication to the tenant to be in writing. Section 129(5) simply requires that the landlord "shall notify the person concerned of the decision on the review". Thus, it is suggested, evidence as to the true extent of the decision may take the form of subsequent amplification by witness statement of that which is contained in the letter. Mr Andrew Arden QC refers to section 203 of the 1996 Act which deals with reviews of homelessness decisions. Section 203(4) provides that if the decision of the review body is to confirm the original decision on any issue against the interests of the applicant, the housing authority "shall also notify him of the reasons for the decision". There, however, it is expressly provided that notice required to be given to a person under section 203 must be given in writing: section 203(8). The suggestion is that the absence of a provision such as section 203(8) in section 129 points to there not being a duty to notify in writing, thereby opening the door to other evidence about the content of the decision. I am unpersuaded by this submission. Quite apart from the fact that any sensible local housing authority would notify such a decision in writing if only for its own protection in future litigation, it is noticeable that another provision in the homelessness part of the 1996 Act, section 193(5) also has a provision concerning notification which is unaccompanied an express requirement of writing. In Ali v Birmingham City Council [2009] EWCA Civ 1279, [2011] HLR 17 Sir Antony May said (at paragraph 39):
"… it is clear in my view that 'notify' requires the giving of a notice which imports a degree of formality sufficient to constitute the document, as it will usually be, a notice. … This conclusion is fortified by the frequent juxtaposition in this statute of the words 'notify' and 'inform'. 'Notify' as I have indicated, imports the requirement for a notice and the question is whether the notice contains the required information."
Mr Arden's submission lives uneasily with these observations.
"I would confirm that a 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 is paid each week, without fail."
"As I see it, [the] letter does clearly refer to the notice. It states quite clearly that it is confirming the notice and on that basis, given the course the proceedings took on the preceding day, it seems to me that it must have been clear to the appellant that the reason for upholding the notice was her failure to pay rent regularly. Therefore I agree with the judge that the notice was unequivocal and, when read together with the schedule, notified the reasons by implication. There is no requirement in the statute that the reasons should be set out expressly in the communication with the tenant. It is sufficient if it is clear from the communication read as a whole what the reasons were."
"[The submission on behalf of the tenant] would lead to the possibility of a local authority having to serve numerous notices. That would have the consequence that the procedure for terminating an introductory tenancy, which only has a very short life anyway, would become very formal. It is quite possible that it would discourage landlords from allowing introductory tenants to remain as tenants while they were given a second chance, and it may well be very undesirable to discourage landlords from doing so. On the other hand, it is possible to contend that Parliament intended that separate notices should be served under section 128 so that tenants would use the more informal and less expensive review process rather than having to apply to the court by judicial review. I can see the argument in that direction, but if that is what Parliament intended, as I see it, it did not use clear wording to produce that result."
"… if the case advanced [on behalf of the tenant] were right, the likely consequence would be that housing authorities would almost inevitably be driven to adopt a less humane, more rigorous, unrelenting approach to introductory tenants who had failed to pay rent when it was due. In many cases there is much to be said for full, indeed generous, weight to be given by the housing authority to any relevant extenuating circumstances and for the tenant to be offered (as this tenant was) a reasonable opportunity to make amends.
However, if that opportunity is rejected by the tenant, then the housing authority's position under section 128 of the 1996 Act should not be prejudiced simply because it made allowances for a tenant's difficulties and deferred proceedings to bring the tenancy immediately to an end."
"The Council has decided not to proceed with terminating your tenancy but will be monitoring your tenancy for a period of twelve months and then will review the situation and advise you. You will continue as an introductory tenant during this period."
"It was the Council's letter. They chose how to express it. The tenant was entitled to be notified 'of the decision on the review', with reasons. In my judgment the review letter did not have the effect of the letter in Stone, which made it very clear that the decision was being upheld. Here the original decision was not confirmed. I consider on the contrary that the natural meaning of the letter to a tenant receiving it was, as the heading in capital letters indicated, that there had been a decision not to terminate the tenancy after all. There was in reality a decision to reverse or quash the original decision, albeit with a warning about future conduct. This conclusion is supported by the absence of any reasons, which, if the decision had been confirmed, were required by section 129(5). I do not accept the submission that a notice remains valid unless expressly withdrawn or that a decision remains unless expressly quashed or reversed. No particular words are laid down and the natural meaning of the words must prevail."
I have no difficulty in accepting Mr Arden's submission that Forbes was a very clear case at or towards the extreme of the spectrum.
"The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions."
Stafford
the opportunity to demonstrate that her antisocial behaviour would not recur. Mr Luba, on the other hand, points to the structure and language of the letter, including the statement that "we do not believe that an application to the court for possession of the property should be made at this point in time". He further submits that, if this had been an unequivocal confirmation of the original decision, the letter would have had a part headed "Reasons" so as to demonstrate compliance with section 129(5). He also places great reliance on the part of the letter under the heading "Recommendations to Maiden Lane Housing Officers".
Stafford
's former partner, could be achieved without significant delay. However, the other two matters were of a very different character. They involved the operation of an Acceptable Behaviour Agreement and support from YISP Plus. The letter enclosed details of the latter. It is a multi-agency programme designed to prevent anti-social behaviour "by offering support services, other complementary interventions and the use of enforcement options where appropriate". It seems to me that at the review hearing on 22 March, the Panel members did not confirm the original decision to seek possession. Instead, having regard to their assessment of Ms
Stafford
at that time, they considered that there were "alternatives to possession proceedings". Indeed, this is consistent with the contemporaneous notes made by Mr Robson who recorded Mr Togher as saying "nuisance not very significant now" and mentioned Ms
Stafford's positive response to proposals for mediation, an Acceptable Behaviour Agreement and referral to YISP Plus. All this may have represented a generous approach on the part of the Council. However, what it did not amount to was an unequivocal confirmation of the original decision to seek possession. In effect, the Council was creating a situation in which, in the event of further anti-social behaviour, they would no longer be able to rely on the original section 128 notice but would have to begin the process again. I quite understand the sort of policy considerations articulated by Arden and Judge LJJ in Stone. However, each case has to be considered within its own factual matrix. In my judgment, the decision of 22 March and its articulation in the letter of the same date fell short of a confirmation of the original decision.
Conclusion
Lord Justice Etherton:
Lord Justice Aikens: