Trinity Housing Barrister Summary of R (on the application of Kalonga) v London Borough of Croydon [2022]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of R (on the application of Kalonga) v London Borough of Croydon [2022] EWCA Civ 670.

Facts

In May 2015, the Council granted the Appellant a five-year fixed term secure tenancy (“a flexible tenancy”). The fixed term expired on 24^th May 2020. On the expiry of the fixed term, the Council sought to recover possession. It was common ground that the Appellant had asked for a review after the expiry of the 21-day deadline provided for by s.107E(1) of the Housing Act 1985.

On 11^th May 2020, the Appellant’s solicitor emailed the Council stating, amongst other things, that she would like to apply for a review and asked for an extension of time in which to make such an application. The Council’s response on 20^th May 2020 stated that it did not have the power to extend the time for making an application for a review and even if the Council did have such power, it would not have exercised it.

The Appellant initiated Judicial Review proceedings to challenge the decision by the Council ‘that it had no power to extend time for [the Appellant] to request a review under section 107E [of the Housing Act 1985] and even if it did have the “power” to extend time for an out of time review, it would not’.  At first instance, Cavanagh J held there was no such power and dismissed the application.

The Decision of the Court of Appeal

The Court of Appeal agreed that the Council had no power to extend the time for making an application for a review under s.107E HA 1985, dismissed the appeal and in so doing held that:

1. The starting point for analysing the parties’ rights and duties is 107A to 107E HA 1985, which provides a specific substantive and procedural code about flexible tenancies. These provisions are the source of the Council’s powers to grant flexible tenancies and set out the restrictions on its ability to end such tenancies [73].
2. Parliament had chosen in two contexts in s.107B and 107C to confer an express power on a local housing authority to change the statutory procedural requirements in certain circumstances. Parliament, however, had chosen not to confer such an express power to extend a time limit in the context of s.107E. The ultra vires rule meant that, in such circumstances, a local housing authority had no power to do so [74].
3. General provisions, such as those contained in section 111 of the Local Government Act 1972 and section 21 of the HA 1985, did not change this analysis. If the relevant code setting out the primary powers contained no power to extend time, such general provisions could not confer one [76, 79, 84].

The appeal was unanimously dismissed.

Henry's summary can also be found on the Housing Law Week website.