![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chelfat, R (on the application of) v London Borough of Tower Hamlets [2006] EWHC 313 (Admin) (10 February 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/313.html Cite as: [2006] EWHC 313 (Admin) |
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF ZEHOUR CHELFAT | (CLAIMANT) | |
-v- | ||
THE LONDON BOROUGH OF TOWER HAMLETS | (DEFENDANT) |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
PROFESSOR I LOVELAND (instructed by Messrs TV Edwards) appeared on behalf of the CLAIMANT
MR A DAVIS (instructed by The London Borough of Tower Hamlets) appeared on behalf of the DEFENDANT
____________________
Crown Copyright ©
"You have the right to request a review of our decision to seek an order for possession. If you decide to seek such a review you must notify us before the end of 21.3.04."
The notice explained how the review would be carried out, that it would be conducted by someone who was of appropriate seniority and not involved in the original decision. At the foot of the notice, there was a statement that all enquiries concerning it should be made to Pamela Wilson, the Rent Arrears Officer. The address given was Cheviot House 227-233 Commercial Road London E1 2BU; the telephone number was given.
"PLEASE ENSURE THAT THIS FORM IS RETURNED TO THE RENT ARREARS SECTION."
The address was given. The form says:
"I would like a review of the decision to terminate my probationary tenancy."
It enables the person requesting the review to say whether they do or do not wish to attend the review, and there is a section which gives them an opportunity to explain why they believe that the notice should not have been issued. There is a reminder that it must be with the local housing or rent arrears office not more than 14 days after the notice is received, and again the name of the issuing officer, Pamela Wilson and her address, is set out.
"Should you wish to request a review in writing, you must write to your Estate/Rent Arrears Officer, stating your reasons for challenging this decision, within 14 days of the date of the attached Notice ...
If you do not request a review, the matter will be referred to the County Court after the Notice expires in 28 days, and the Court will be obliged to give us possession of your home."
"I am concerned about the warning notice that was issued to me in which you stated that the possession of the property is probationary. I have been homeless for two consecutive years before the Tower Hamlet could rehouse me in permanent accommodation which is 51 Musbury Street. The above address is my permanent and secure tenancy. It is not true that the tenancy is probationary and therefore you are trying to repossess my property on the basis that is probationary.
I would like to review the decision which is unfair and has no ground to breach of tenancy. I have a problem with the housing officer of this nature who tried to make allegation of being anti-social and tried to take legal action to get me out of the property. You have to be aware that this is not right but harassment and crime and if you persist taking any matter subjectively I will have I am afraid to deal with it legally.
You must be wrong in assuming that entitlement to housing benefit is just for people who claim income support. There is no stop to life's change and that does not mean that you can take you opportunity to infringe people's rights on the name of the Mayor and the Burgesses of the London Borough of Tower Hamlets.
I have said already to Mrs Pamela Wilson who made the decision when she came unexpectedly to my home address shouting at me giving an impression to my neighbours that I am of bad character that I am a student on full-time basis at University and I confirmed that to her on the telephone that day but she has chosen to hang up the phone on me.
I would like for the housing benefit unit manager to fix an appointment for me to come down to your office to sort this matter out in a fair and right manner.
I understand that the court is the last resort and I cannot see why you have precipitated in taking an immature decision but which is also wrong.
I am looking forward to hearing from you in due course."
"We attach a copy of a letter dated 10.03.04 from our client to the Stepney/Wapping Community area which states, in the fourth paragraph, that 'I would like to review the decision which is unfair...' It appears therefore that contrary to what has been stated, this would amount to our client requesting a review of the council's decision to evict her (as referred to in the notice dated 5th March 2004). Please can you let us know by return what review procedure was undertaken in the light of our client's request. If no such procedure was carried out, in accordance with the provision of the Housing Act 1996 for probationary tenancies, please can you confirm that the review procedure will now be commenced and that, in the meantime, the warrant for eviction will be withdrawn. Should we not have a satisfactory response, by 10.00am on Tuesday 5th October 2004, we will have little option but to advise our client to consider applying for public funding in order to make the appropriate application to the court for the warrant to be suspended/the order made on 21st July 2004, set aside... "
"We note Ms Chelfat's letter of 10/3/04. This letter was addressed to an entirely different section and was not on the prescribed form provided for review. This is also the first time that this issue has been raised despite the arrears section raising the issue of review on several occasions and it was not mentioned by her at her interview on 1/10/04."
The letter continued:
"In the interest of fairness, Ms Martin is willing to conduct a review on 15/10/04 at 10.00am. You should submit your reasons for your request for a review in writing to Ms Jane Martin ... [an address is given]. If you and your client wish to attend, you should ensure that you confirm this in writing, alternatively it can be reviewed in your absence.
I would therefore suggest your client make an application at Shoreditch County Court. London Borough of Tower Hamlets is willing to suspend the warrant for 14 days while the review is heard."
"On receiving Miss Chelfat's letter dated 10 March 2004 which it is acknowledged was addressed to Stepney/Wapping Community Area Housing Benefit Unit Cheviot House 227-233 Commercial Road London E1 2BU, the letter could and should have been forwarded to the Rent Arrears Office in the same way as Miss Chelfat's letter dated 5th March had been. It is submitted that the wording of Miss Chelfat's letter 'I would like to review the decision which is unfair' amounted to a clear request that she wished there be a review of the decision to issue possession proceedings, as indicated by the notice dated 5th March 2004.
The review procedure should have been instigated. Ms Chelfat's letter was sent within the 14 day time limit after service of the section 128 notice. There was no requirement that she should request a review in prescribed form. As no review was carried out by 5th April 2004 (the stated date after which any court proceedings would be begun/expiry of the section 128 notice or at all) no possession proceedings should have been issued on the County Court and no possession order made. Any review should have been carried out and the tenant notified of the result before the date specified as the date after which proceedings may be begun (section 129(6) Housing Act 1996). As no possession proceedings should have been issued and no possession order obtained, the trial period/probationary tenancy has now expired."
"Should the review procedure conclude that issuing possession proceedings was justified, then Ms Chelfat asks that in her current circumstances, given that she is now in receipt of Jobseekers Allowance, housing benefit and has made payments towards the rent/arrears and is looking for work, she be allowed to continue living in the property on paying the current rent plus £26 per week towards the debt under a new probationary tenancy agreement."
"Your initial request for a review of the Notice of Proceedings for Possession was sent to the wrong Section, the Council's Housing Benefit Team. I understand that the Housing Benefit Team thought your request was a request to review your housing benefit application. However, in the interest of fairness, it was agreed that a review would be conducted despite the fact that the Council had already obtained a Possession Order."
"(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 the review under this section.
Nothing in the following provisions affects the generality of this power.
(4) Provision may be made by regulations -
(a) Requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) As to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(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."
"The review request form should contain the reasons why the tenant considers the issue of the notice unreasonable. It is vital that this form or any other correspondence requesting a review is forwarded to the reviewing officer as soon as it is received."
Under the heading "Review of Decision", this is said:
"It is vital that all officers who receive notice from the tenant that he/she wishes a review (i.e. personal visit, telephone call, letters) refer the tenant immediately to Terry Damiano - Acting Assistant Director (Housing Management) as the nominated Officer responsible for co-ordinating the initial review process. His office will ensure that all review requests are faxed immediately to the relevant Review Officer. The Review Officer must be a person more senior than the officer who signs the NOPP and who investigates the allegations or manages the tenancy on a day-to-day basis. In practice, this will be the Local Housing Services Managers, with the Area Heads of Housing as back up."
"The conduct of a review, if a request is made, is a condition precedent to the lawful exercise of the landlord's power to initiate possession proceedings. Absent a review, the initiation of proceedings is a nullity."
"46. I now come to the further matter which troubled me and which I raised during argument. Section 129(6) of the 1996 Act requires the council's review to be carried out before the date specified in the notice pursuant to section 128(4). In this case the date specified was 9 October 2000. However, the second Review Board hearing took place some seven months after that date [on 17 May 2001]. Does that make the Review Board hearing a nullity? I have come to the conclusion that it does not for four reasons:
(1) a variety of circumstances might occur which would extend the review beyond the specified date. Some of those circumstances would be in the control of the landlord, some would not. For example, the tenant may apply on good grounds for a postponement of the hearing under Regulation 8 of the 1997 regulations; or an adjournment may be ordered for good reason under Regulation 9, with consequential delays. It would be absurd if events of this nature rendered the review process invalid
(2) the statute does not specify any consequence for non-compliance with section 129(6). If Parliament had intended a breach of section 129(6) to disable the landlord from reviewing his decision to bring proceedings, Parliament would surely have stated expressly such a drastic consequence.
(3) even the first review hearing did not comply with section 129(6), as has been pointed out in Part 2 of this judgment. Yet no-one suggests that the first review hearing was invalidated because of that particular breach.
(4) if breach of section 129(6) makes a review impossible, then the procedure for terminating introductory tenancies becomes prolonged and repetitive.
"47. I therefore conclude the second Review Board hearing was not invalidated, even though it took place some time after the date specified in the council's notice."
"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."(My emphasis).
The remainder of the section then sets out the matters with which the notice must comply. There is no comparable provision in section 129. Professor Loveland very properly accepts that section 129 is silent as to the consequences of non-compliance with the time limit for review set out in subsection(6).