Court of Appeal confirms that there can be no late review of a s.107D(3) notice

17 May 2022

Housing

R (Kalonga) v Croydon LBC [2022] EWCA Civ 670

Croydon LBC granted to Ms Kalonga a flexible tenancy. Before that tenancy came to an end Croydon served on Ms Kalonga a s.107D(3) notice informing her that it did not intend to grant her a new tenancy on expiry of her existing tenancy. Ms Kalonga sought a review out of time, which Croydon determined that it could not conduct. Ms Kalonga was granted permission to proceed by way of judicial review in respect of that decision. Cavanagh J agreed with Croydon that there was no power to extend time for seeking a review, and no power otherwise to conduct a review. He granted Ms Kalonga permission to appeal to the Court of Appeal.

The Court of Appeal has upheld the judgment of Cavanagh J. Elisabeth Laing LJ (with whom Dingemans and Andrews LJJ agreed) gave the lead judgment in which she summarised the relevant leading cases (including Shelley, Hazell, Ellioua, Demetri, Akumah, and Harris), and the relevant extraneous statutory provisions (including ss.111, 222 Local Government Act 1972, s.21 Housing Act 1985, and s.1 Localism Act 2011). She held that the flexible tenancy regime was a “specific substantive and procedural code about flexible tenancies”, that the context and surrounding provisions of s.107D gave a clear indication of the legislative intent, and that the decision in Harris translated across to the instant regime, and that s.21 Housing Act 1985 did not afford the power for which Ms Kalonga advocated. And she concluded that “the Council was right to say that it had no power to extend the time for requesting a review under section 107E of the Act.”

Andrews LJ gave a concurring judgment (with which Dingemans LJ agreed) in which she ade the following clear:

“when considering whether a local housing authority has the power to do something, such as carry out a formal review of a decision it has made, the first step in the analysis must be to ask whether the relevant statute has conferred any express power on the local authority and, if so, whether as a matter of statutory construction, that power is limited in any way.”

Riccardo Calzavara, instructed by Jenny Fraser-Browne, appeared for the successful authority. Read the judgement here.

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