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No extensions: timing and flexible tenancies

The Court of Appeal has ruled that a council did not have power to extend the time for making an application for a review under section 107E of the Housing Act 1985. Justin Bates examines the judgment.

The Localism Act 2011, s.154, introduced a new form of secure tenancy: the flexible tenancy. In essence, this is a secure tenancy for a fixed term of at least two years, the actual length being decided by the local housing authority in accordance with its tenancy strategy (s.150, 2011 Act).

A person who is offered a flexible tenancy is entitled to request a review of the term being offered (s.107B, Housing Act 1985). The request for a review must be made within 21 days – or such longer period as the landlord may allow in writing – of the day on which the person receives the offer (s.107B(4)).

Where a landlord has decided to seek possession of a flexible tenancy at the expiry of the fixed term, the tenant has a right to request a review of that decision (s.107D). A request for a review must be made within 21 days of the day on which the tenant is informed of the decision to seek possession (s.107E(1)). There is no express power to extend time, unlike with s.107B.

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A local authority has a general power of management in respect of its housing stock (s.21, Housing Act 1985). That power should be construed broadly: Akumah v Hackney London Borough Council [2005] UKHL 17; [2005] HLR 26. It is the source of the power to let property (R v Snell Ex parte Marylebone Borough Council [1942] 2 KB 137) and to seek possession (Shelley v London County Council [1949] AC 56).

A local authority has power to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of its functions: s.111, Local Government Act 1972.

In R (Kalonga) v Croydon LBC [2022] EWCA Civ 670 (Dingemans, Andrews, Laing LJJ) Ms Kalonga was the flexible tenant of Croydon LBC. Shortly before her fixed-term was due to expire, the authority notified her that it would not be offering her a further tenancy and would seek possession on expiry of the fixed term. She requested a review of that decision but her request was not made until 9 days after the 21-day period provided for by s.107E(1). The local authority considered that it had no power to accept a review request outside of the prescribed period. Ms Kalonga sought judicial review, contending that s.21 provided power to extend the 21-day period as an exercise of a housing management function. The High Court dismissed the claim but granted permission to appeal ([2021] EWHC 2174 (Admin); [2022] HLR 7).

The Court of Appeal dismissed an appeal. It was striking that s.107B made provision for an extension of time for seeking a review but no such provision was made in s.107E and the clear implication was that no such extension was permissible. The general powers in s.21, 1985 Act and/or s.111, 1972 Act could not confer a power which was contrary to the specific provisions in s.107E.

Justin Bates is a barrister at Landmark Chambers. He appeared for Ms Kalonga, leading Anneli Robins of 4-5 Gray’s Inn Square. They were instructed by GT Stewart solicitors.

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