THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF MERTON v CLIVE WILLIAMS [2002] EWCA Civ 980

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY
COURT (HIS HONOUR JUDGE ELLIS)
(ON APPEAL FROM DISTRICT JUDGE MILLS)
[2002] EWCA Civ 980Case No Case No: B1/2001/2601Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF MERTONAppellantCLIVE WILLIAMSRespondent
Before
Lord Justice WardLord Justice ManceSir Martin NourseMark Lowe QC & Wayne Beglan (instructed by The Legal Services Dept., L.B. Merton) for the AppellantRobert Latham (instructed by Messrs Jacqueline Everett & Co.) for the RespondentDate 17 July 2002

Lord Justice Mance:

This

[1]is an appeal from a judgment of His Honour Judge Ellis given in the Croydon County Court on 22 nd November 2001, whereby he allowed an appeal from and set aside a possession order made by District Judge Mills on 3 rd November 2000, and ordered that the determination of the appellants’ claim for possession of a flat, at 65 May Court, Pincott Road, London SW19 2LE, be adjourned pending an application for judicial review by the respondent, Mr Williams, to the Administrative Court.[2]The appellants are The London Borough of Merton (“the Council”), and by tenancy agreement dated 21 st March 2000 they granted Mr Williams, in respect of the flat, what was expressly stated to be “an introductory tenancy for the trial period of 12 months as defined under the Housing Act 1996 during which time it may be brought to an end in accordance with the Act”. The tenancy was to commence on 3 rd April 2000 at a weekly cost, consisting of £56.76 net rent (payable in advance) plus £3.78 water charges and £0.48 for a TV aerial. Clause 3.3(b) provided that “The Tenant must occupy the dwelling as his/her only and principal home …”. The flat had two bedrooms. Mr Williams was awarded a tenancy of a two-bedroom flat as a father having legal custody of a (then) 17-year old son, Markel (who became 18 on 3 rd July 2000), under a parental responsibility agreement dated 28 th January 2000.[3]On 29 th June 2000 the Council served on Mr Williams under s.128 of the Housing Act 1996 a Notice of Proceedings for Possession dated 26 th June 2000 informing him of the Council’s intention to apply to the Court for an order for possession: “because of YOUR FAILURE TO TAKE UP OCCUPATION OF THE PROPERTY; RENT ARREARS OF £690.16 AS AT CLOSE OF ACOUNTS ON 25 TH JUNE 2000”.[4]The Notice further advised Mr Williams, in compliance with the requirements of s.128(6) and (7) of the 1996 Act, of his right to ask within 14 days for a review of the Council’s decision, which would proceed on the basis of written representations unless he requested an oral hearing, and that:
“If you need advice about this Notice and what you should do about it, take it as quickly as possible to a Citizen’s Advice Bureau, a Housing Aid Centre, a Law Centre or to a Solicitor. You may be able to receive Legal Aid, but this will depend upon your personal circumstances.”
[5]Mr Williams requested an oral review of the Council’s decision, and was informed that this would take place on 20 th July 2000. On that day, he failed to attend, and the reviewing officer, the Council’s Head of Operations in its Housing and Social Services Department, Mr Paul Ryrie, determined that he would proceed in Mr Williams’ absence, and by letter dated 21 st July 2000 wrote informing Mr Williams that the matter had been considered in his absence and that:
“This year their [sic] were substantial arrears of rent outstanding on your account and I therefore believe that the Notice was properly served on you. In the circumstances I am unwilling to withdraw it and suggest that you contact Samantha Caird, your Housing Officer, urgently to make arrangements to clear your account.”
[6]It is accepted that Mr Ryrie was entitled to proceed, as he did, in Mr Williams’ absence, under paragraph 7 of The Introductory Tenants (Review) Regulations 1997, which provides that “If any person shall fail to appear at the hearing, notice having been given to him in accordance with regulation 6, the person conducting the review may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding the absence …”. Dealing with Mr Williams’ failure to attend, HHJ Ellis recites in his judgment that Mr Williams “says he made a mistake about the date and notified Miss Caird [the Council’s officer handing the intended possession proceedings] of this later on the date set for the meeting”. The date at the end of this passage does not quite reflect the evidence. Mr Williams stated in the witness statement used before HHJ Ellis (in paragraph 26) that:
“Unfortunately, I made a mistake about the date of the review …. I realised what I had done and so either on the same day or the following day I telephoned the housing officer to explain what had happened. I spoke to a receptionist who explained to me that a decision had already been made to go ahead with the proceedings. This was confirmed by the letter of 21st July 2001.”
HHJ Ellis appears to have based himself on a statement by counsel not supported by the evidence (Transcript page 16). However, since counsel also confirmed that the telephone call was after the review decision, the material facts are on any view clear.[7]Possession proceedings were begun on 4 th September 2000. The Particulars of Claim (supported by a statement of truth signed by the Council’s solicitor, Julie B. Belvir) relied upon failure to take up possession and failure to pay rent in the sum of £1044.01 by Mr Williams. The matter came before DJ Mills on 3 rd November 2000, when the arrangements for tape recording unfortunately failed. When the matter came before HHJ Ellis a year later, the Council’s representative, Miss Caird, could not assist with any recollection of the course of events before DJ Mills. Mr Williams in his witness statement dated 22 nd November 2001, on the other hand, recounted that:
“…. I went to court on my own. I was not represented by a duty solicitor or anyone else and as far as I am able to remember the housing officer presented the case herself and was not represented by a barrister or a solicitor. I think that she explained to the judge that was [sic] an introductory tenancy and that there were arrears of rent. She did not say anything about me not living there. Everything happened very quickly. I explained to the judge about the housing benefit but I did not know really what to say. The judge told me that he did not have any option but to make a possession order.”
[8]It is at this point appropriate to set out the position regarding housing benefit. At or about the time he signed the tenancy agreement, Mr Williams completed and on 22 nd March signed and gave to Miss Caird a housing benefit application form, and was told by her that the actual amount he should pay per week (having regard to the anticipated benefit) was £7 (consisting of rebated rent of £4.623 and an insurance premium of £2.39). This amount he has at all times paid. In answer to a question in the form signed: “When did you move into the address you are claiming benefits for?” the date inserted was 3 rd April 2000 - in other words the day which was to be the first day of his tenancy. In response to the next question, whether he had moved in the last two years and if so from what old address, the respective answers were affirmative and from 14 Hailsham Road, Tooting, SW17 9EN.[9]On 19 th May 2000 Mr Williams filled in a second housing benefit application. He cannot remember why, and says in his statement that it may have been because someone suggested this to him or he may have been sent a form. The application is date-stamped by the Council 13 th June 2000. During May 2000, Miss Caird acquired information which led her to think that Mr Williams had not moved into the flat. Early morning visits by an investigating officer, Mr Glover, on 2 nd and 7 th June 2000, when no contact could be established, confirmed this belief. The Council thus wrote a letter to Mr Williams dated 14 th June 2000 referring to his housing benefit claim and recording that:
“On the basis of the information available, the Council concludes that you are not in residence at the address and not entitled to Housing Benefit. Your claim will therefore be cancelled.”
Mr Williams then telephoned the Council on 20 th June and Mr Glover attended the flat at 8.45 a.m. on 22 nd June 200 and found Mr Williams scraping wallpaper off the wall in the kitchen, in which there was a washing machine, but no cooker, fridge, or freezer and no furniture or floor covering at all.[10]According to Mr Glover’s note (which was exhibited to Mr Williams’ witness statement before HHJ Ellis):
“Mr Williams readily admitted that he had not yet moved in, but said that this was because he had been sick for the last couple of weeks with shingles, and also because he had only recently received his Social Fund Loan from the DSS”
. Mr Glover then records that he told Mr Williams that he had checked with the DSS, and that they had advised that they had sent his loan and grant on 18 th and 19 th April 2000. The note goes on to recount further conversation in the course of which Mr Glover regarded Mr Williams as “changing his story”. Mr Glover asked Mr Williams to provide documentary evidence for items paid for (with a view to occupation), and Mr Williams agreed to call at the office with these. The note also records: “I explained to Mr Williams that HB was only payable when a claimant was in residence at the address he or she was claiming for. He readily accepted this and did not seem at all bothered that he might not be paid”.[11]On 28 th June 2000 Mr Williams completed a third housing benefit application form (date stamped by the Council 25 th July 2000). Following the Council’s service on 29 th June 2000 of Notice of Possession Proceedings, Mr Williams went to see Miss Caird, and was advised to make fresh application for housing benefit, since he had come off income support and was now on job-seekers allowance. Accordingly, on 7 th and/or 8 th August 2000 he completed a fourth application for housing benefit and a fifth application to have such benefit back-dated. These were date stamped by the Council 14 th August 2000.[12]In late August and early September 2000 there were further visits by Mr Glover to the flat, during some of which other persons as well as Mr Williams were present. Mr Williams again promised to bring receipts to the office to account for the Social Fund payments he had received in April, but did not do so. Mr Glover’s notes and reports (again exhibited by Mr Williams) show that his conclusion then was that Mr Williams was still not using the flat as his main place of residence, and that his claim for benefit should be cancelled on this basis. Based on this, no doubt, the Council wrote on 26 th September 2000, informing Mr Williams that his claim for housing benefit “had been disallowed because my audit section are of the opinion you did not take up residence at this address”. Mr Williams went to a Citizens Advice Bureau, which advised him to request a review of the Council’s decision dated 26 th September, which he did by letter to the Council’s benefits officer, Miss Fairfax dated 1 st November 2000, attaching certain agreements and correspondence with suppliers of services to the flat.[13]Mr Williams’s statement in his witness statement that “I explained to the judge [i.e. DJ Mills] about the housing benefit but I did not know really what to say”, must be read in the light of his earlier references in the statement to housing benefit. So far as material they include references to the making of the successive applications, together with a statement that, when he received the Notice of Possession, he was “certain that [he] was entitled to housing benefit and it would be only a matter of time before it was sorted out”, a statement that he told Miss Caird in early August that he was trying to sort out his housing benefit (a statement which is consistent with the completion of the fourth and fifth applications) and a reference to the Council’s rejection on 26 th September 2000 of his housing benefit claims date stamped as received by the Council on 14 th August 2000, and his request for a review dated 1 st November 2000. (He also suggested that the Council’s rejection dated 26 th September “did not deal with” the other claims – though any idea that the Council, having rejected the fourth and fifth claims, was likely to treat the earlier claims as current or as valid seems unrealistic.)[14]It might seem surprising if Miss Caird, who knew the Council’s full thinking, did not, at some stage during the proceedings before DJ Mills, say something about housing benefit and about the Council’s reason for refusing it. But Mr Williams’ statement a year later (when his recollection was admittedly and not surprisingly limited) says that she did not, and I proceed on that assumption. Even so, and even though DJ Mills did not have before him Mr Glover’s notes, or any evidence about Mr Glover’s investigations, it must have been clear to him that the Council did not consider that Mr Williams had been resident at the material times. That was the basis of the Notice of Possession Proceedings and the Particulars of Claim dated 7 th September 2000 (with the accompanying attestation of truth), as well as, I add, the Council’s letter dated 26 th September 2000, if (though this is not shown) Mr Williams mentioned its full effect.[15]On 11 th November 2000 the Council’s benefits service team manager, Mrs J. Haylor, wrote a detailed letter informing Mr Williams of the outcome of the review requested by his letter dated 1 st November. The decision was to reject his claim, and the letter gave detailed reasons, including a summary of Mr Glover’s visits and findings, leading to the conclusion that Mr Williams had not taken up residence despite his statement in his original application dated 3 rd April 2000. The letter informed Mr Williams of his right to a further internal review, and a yet further review by a Review Board Hearing after such a further internal review. On 14 th December 2000 Mr Williams wrote averring that he was entitled to benefit on the grounds that he had since 5 th June 2000 occupied the flat. It also seems quite likely that Mr Williams (who was from this time in receipt of the advice of solicitors, Jacqueline Everett, who also referred him to Centre 7 Advice Centre for specialist housing benefit advice) took up the suggestion in the letter of 11 th November of some form of further review, since on 21 st December 2000 the Council wrote giving him an appointment for an internal review interview. On 10 th January 2001 Mr Williams made a sixth application for housing benefit, which was determined, with despatch, on 15 th January 2001, by an award in his favour for £52.74 weekly, not back dated. On 19 th February 2001 the Council’s benefits service notified Mr Williams that the further internal review had rejected his claim for benefit from the start of the tenancy, on grounds similar to those given on 11 th November 2001. It again informed him of his right to a Review Board Hearing, which he sought on 16 th March 2001. That was, as from 1 st July 2001, transmuted into an appeal to an Independent Appeal Panel (which was only resolved in December 2001 after HHJ Ellis’ decision now under appeal).[16]Meanwhile, on 15 th November 2000 an appeal had been lodged against DJ Mills’ decision on the broad grounds that it was in breach of Mr Williams’ rights under the European Convention on Human Rights, in that DJ Mills should have either transferred the case to the High Court for determination of the issue whether s.127(2) of the Housing Act 1996 was compatible with the Convention or have adjourned the proceedings generally in order for the position regarding Mr Williams’ outstanding housing benefit claim to be resolved first.[17]Following the decision on 16 th October 2001 of this court in McLellan v. Bracknell Forest B.C. [2001] EWCA Civ 1510 ; [2002] 1 AER 899, application was made to amend the notice of appeal against DJ Mills’ decision to rely on the approach in that case, particularly in paragraph 103. The argument that s.127(2) was as such inconsistent with the Convention was not pursued, but a draft application for judicial review was produced challenging the Council’s alleged failure to consider whether it was necessary and proportionate to continue to operate an introductory tenancy regime, its decision to issue a Notice of Possession Proceedings, its review decision of 20th July 2000 and its issue on 7 th September 2000 of possession proceedings. The grounds of challenge included amongst other allegations(a) failure by the Council to make adequate inquiries or findings regarding, or to have determined by an independent tribunal, the issues regarding occupation and housing benefit,(b) failure to consider whether the eviction of Mr Williams was “necessary and proportionate”, which (it was alleged) the Council could only have done after determination of the housing benefit claims,(c) failure to consider any proposal to clear the rent arrears by instalments,(d) inadequacy of the reasons in the Notice of Possession Proceedings and the notice of the review decision,(e) Mr Ryrie’s conduct of the review (in continuing in Mr Williams' absence and without giving him the opportunity to make representations) and(f) failure to consider the circumstances in which the rent arrears had arisen or the reasonableness of expecting Mr Williams to clear them. The amended notice of appeal was supported by a skeleton relying upon the Council’s failure to file evidence along the lines mentioned in paragraph 103 in McLellan , that is evidence as to how the procedure of review was operated, dealing in particular with Mr Ryrie’s degree of independence from whoever took the original decision, the way the review was conducted and the reasons for the decision to continue with possession proceedings.[18]HHJ Ellis gave a careful reserved judgment in which he concluded that, even in a case where the tenant did not specifically raise any such issue, a judge in possession proceedings in respect of an introductory tenancy had a “duty to see that the tenant’s Convention rights have not been violated”, assimilating this to the judge’s duty to see that the relevant statutory procedure had been followed. He also considered that it was incumbent on a housing authority to file evidence as suggested in paragraph 103 in McLellan in every case, whereupon the judge, if he thought that the tenant had a real prospect of obtaining permission to proceed by way of judicial review, could adjourn for a short time to enable the tenant to consider whether he wished to follow this course. In the instant case, he considered that, had DJ Mills considered Mr Williams’ Convention rights and the lawfulness of the Council’s decision, there was enough before him “to raise the real possibility” that Mr Williams’ Convention rights had been violated, that the Council’s decision was unlawful and that Mr Williams had a real prospect of challenging the Council’s decision by judicial review. HHJ Ellis reached this conclusion on the basis that “the limited evidence before the district judge” suggests that the Council may have acted unlawfully in three particular respects. The first was that neither the original nor the review decision appeared to give adequate reasons “to satisfy the test described above”, by which HHJ Ellis was referring to the provisions of ss.128(3) and 129(5) of the 1996 Act and the function of reasons of enabling a person to know why he has won or lost and to judge whether a decision is valid or open to challenge. Secondly, neither document contained anything to justify the claim for possession as being necessary and proportionate. Thirdly, nothing was said about the outstanding issue regarding housing benefit or about the necessity or proportionality of seeking possession while that issue remained outstanding. HHJ Ellis held that DJ Mills ought in these circumstances to have adjourned to enable Mr Williams to challenge the Council’s decision by way of judicial review. He rejected the argument that Mr Williams had allowed too much time to elapse for any application for judicial review to have any prospect, on the basis that it would be wrong to predict how the Administrative Court would exercise any discretion to extend time.[19]The Independent Appeal Panel on 4 th December 2001 awarded benefit of £56.40 for the period from 25 th July 2000 (that date apparently deriving from the date stamped on the third application). Its reasoning was that it appeared that Mr Williams had been in occupation from 29 th June 2000 but not prior to that. On 6 th December 2001 the Council back-dated this award to the period from 3 rd July 2000 (that being it appears the first benefit day after 29 th June 2000). I record at this point that it is not now challenged that Mr Williams did not move in and was not in occupation until 29 th June 2000 or shortly thereafter. It is now therefore accepted that he never had any right to housing benefit prior to 29 th June 2000. Regulation 5(6) of the Housing Benefit (General) Regulations 1987 defines a limited set of cases in which a tenant may be treated as occupying a dwelling as his or her home “before moving in”. None of those applies (and, even if any did, the period for which he or she would fall to be so treated could not under regulation 5(6) exceed a period of four weeks immediately prior to moving in).[20]An application for judicial review was issued on 23 rd November 2001, and was on 27 th December 2001 rejected on paper by Mr Jack Beatson QC, sitting as a deputy High Court judge, on the grounds of delay. On 12 th February 2002 the Administrative Court adjourned a renewed application for permission for judicial review, pending the outcome of the present appeal.[21]The legislation governing introductory tenancies is found in Part V (s.124 et seq.) of the Housing Act 1996. Where, as here, a local authority elects to operate an introductory tenancy regime, then by s.124(2) (and subject to presently immaterial exceptions) “every periodic tenancy of a dwelling-house entered into or adopted by the authority shall, if it would otherwise be a secure tenancy, be an introductory tenancy”. By s.125(1), “a tenancy remains an introductory tenancy until the end of the trial period unless one of the events mentioned in subsection (5) occurs before the end of that period”. The “trial period” is defined by s.125(2) as “the period of one year beginning with (a) in the case of a tenancy which was entered into by a local housing authority …. (i) the date on which the tenancy was first entered into, or (ii) if later, the date on which a tenant was first entitled to possession under the tenancy ….subject as follows.” By s.125(5)(a), a tenancy ceases to be an introductory tenancy if, before the end of the trial period, (a) the circumstances are such that the tenancy would not otherwise be a secure tenancy ….”. S.125 is also made subject to s.130, which provides that where the landlord begins proceedings for possession of a dwelling-house let under an introductory tenancy, and the trial period ends or any of the events specified in s.125(5) occurs, the tenancy remains an introductory tenancy until either the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of an order of the court, or the proceedings are otherwise finally determined.[22]Ss.127 to 129 regulate proceedings for possession. By s.127(1), the landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house; and by s.127(2), the court shall make such an order unless the provisions of s.128 apply. Ss.128 and 129 provide:
“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. The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings. (5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings. (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. (7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor. 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. (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.”
[23]With regard to the person by whom a review may be undertaken, Regulation 3 of The Introductory Tenants (Review) Regulations 1997 provides that(1) the review shall be carried out by a person who was not involved in the decision to apply for an order for possession and(2) where the review of the decision made by an officer is also to be made by an officer, that officer shall be someone who is senior to the officer who made the original decision. Further, under Regulation 2 a tenant has a right to an oral hearing; under Regulation 4 if the tenant elects not to have an oral hearing, he or she may still make representations in writing in connection with the review, which the landlord must consider, while under Regulation 5, if the tenant requests an oral hearing, then, although it is for the officer to determine the procedure generally, there is a right to be heard, accompanied and represented, a right to call persons to give evidence and a right to put questions to anyone who gives evidence, as well as a right to make representations in writing.[24]S.7(1) of the Human Rights Act 1996 provides that a person claiming that a public authority has acted in a way incompatible with the Convention, and so unlawfully, “may(a) bring proceedings against the authority under the Act in the appropriate court or tribunal, or(b) rely on the Convention right or rights in any legal proceedings, but only if he is (or would be) the victim of the unlawful act”. The facts in the present case straddle the incorporation into English law on 2 nd October 2000 of the provisions of the Convention pursuant to the Human Rights Act 1996. The Council’s original and review decisions and its issue of possession proceedings all occurred at times prior to such incorporation. The hearing before the district judge took place after such incorporation. S.22(4) of the Act provides that s.7(1)(b) “applies to proceedings brought by or at the instigation of a public authority whenever the act in question takes place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section”. S.6(1) made it as from 2 nd October 2000 “unlawful for a public authority to act in a way which is incompatible with a Convention right”, and by s.6(3)(a) the court, here the district judge, was and is a public authority. So Mr Williams was entitled to rely in the possession proceedings brought by the Council on any relevant Convention right or rights, in so far as he was the victim or potential victim of their infringement; and it was also incumbent on DJ Mills, as a public authority, on 3 rd November 2000 to refrain from acting in any way which would be incompatible with the Convention.[25]The inter-relationship of the legislation governing introductory tenancies and the European Convention on Human Rights, as incorporated into English law since 2 nd October 2000 by the Human Rights Act 1996, was considered by this court in McLellan , above. In the present case, permission for a second appeal was sought and obtained on the basis that it involved two important points of principle, namely whether the approach in McLellan (in particular in paragraph 103) was consistent with the principle that the decisions of a local authority are deemed to be valid, and whether it should anyway be applied to a judgment given prior to the decision in McLellan . The Council’s skeleton in support submitted that paragraph 103 should, in an adversarial context, be confined to situations where a tenant expressly raised before the district judge the possibility of an application for judicial review. Following study of a transcript of HHJ Ellis’ judgment and the involvement of leading counsel, and with our permission, the grounds of appeal were amended and a supplementary skeleton was relied upon. The Council now lays substantially less emphasis on any presumption as to the validity of its actions, it continues to submit that the guidance in paragraph 103 in McLellan “should be read in the context of a fully contested case”, but it accepts that, even in an adversarial system and a context where a tenant does not expressly raise any procedural or Convention point as a basis for seeking judicial review, it would be incumbent on a judge hearing possession proceedings to take some step, to enable the tenant to consider and, if so advised, to take judicial review proceedings, if it was “manifest” that there had been some defect in the Council’s approach justifying such a step. The Council nonetheless submits that no such defect was apparent on the material before DJ Mills, and that HHJ Ellis was wrong to conclude that it was incumbent on DJ Mills to suggest an adjournment pending possible judicial review proceedings, and wrong to consider that there could be any realistic prospect of judicial review in November 2001.[26]The primary issue before the court in McLellan existed at what Waller LJ called the “macro” level. It concerned the consistency of the general legislative scheme for introductory tenancies with article 8 of the Convention (respect for home). There was however also before the court argument (at the “micro” level) as to(a) whether the decision to proceed under s.127 had to be justified in every case under article 8(2);(b) whether s.127 and the decision in Manchester C.C. v. Cochrane [1999] 1 WLR 809 deprived the tenant of the ability to do so; and(c) whether Miss Forrest (with whose separate case the court in McLellan was also concerned) had an arguable case that her article 8 rights were being infringed. The court upheld the scheme’s consistency with the Convention. It concluded that the provisions of ss.127 to 129 regarding the giving of notices, review and reasons, coupled with the possibility (whether or not a review had been sought under s.129) of an application for judicial review and the court’s power (as stated in Manchester C.C. v. Cochrane ) to adjourn any possession proceedings pending the determination of any application for judicial review, meant that the scheme did not infringe article 8. The court considered that the scheme for recovering possession did involve the determination of civil rights within the meaning of article 6, but that the combined possibilities of seeking an internal review by a different officer under s.129 and of seeking judicial review, with any possession proceedings being adjourned in the meanwhile, also satisfied the tenant’s entitlement under article 6 to a fair hearing by an independent and impartial tribunal. None of these conclusions is in issue before us, although Mr Latham for Mr Williams expressly reserved his position on them at a higher level, as well as on an argument that an introductory tenant has a private law right to raise Convention points as a defence to possession proceedings. Turning to Miss Forrest’s position as tenant at the “micro” level, it appears that she was given notice of possession proceedings on account of failure to pay rent (cf para. 32); she did not request a review of that decision, because, she said (although this was in issue), she had been told that, unless the arrears were cleared before the review, the matter would proceed to court. The court on these facts dismissed her appeal, with Waller LJ saying (at para.106):
“However, no request was made to the county court judge to adjourn the case so that an application for judicial review could be made, and the argument proceeded on what I have called the macro level. It seems to me that it is too late now to apply for permission to move for judicial review. I should add that on the facts as presented to us, I have no reason for thinking that permission to move for judicial review would even have been granted.”
[27]The court considered in McLellan whether the introductory tenancy scheme excluded from consideration the circumstances of individual tenants. Neither side was in fact suggesting that it did (cf paras. 54 to 65). The court’s view was that “the circumstances of the particular tenant are brought directly into focus under the introductory tenancy scheme by virtue of the requirement under s.128(3) to provide reasons for seeking possession, and the machinery for reviewing of those reasons” (para.50). Waller LJ at paragraph 51 raised the question whether the reasons “on their face have to demonstrate that if they are right it is necessary for the protection of the rights and freedoms of others for the procedure under s.127 to be used”. However, in other passages of his judgment, he spoke in terms of the tenant’s “opportunity”, “right” or “option” to raise points by reference to his or her own particular case or position, particularly at the review stage – see e.g. paragraphs 52 to 59 and 63 to 65. Further, the notice of possession proceedings in Miss Forrest’s case appears to have rested on the simple fact of arrears, without further reasoning, as it also did in the case of Miss McLellan (cf para. 29) and as it did in this case, and the court’s reasoning at the micro level was based on Miss Forrest’s failure to request any adjournment to seek judicial review. It is true that Waller LJ in paragraph 63 refers to s.128(3) as a statutory obligation to set out “a full statement of reasons for terminating the introductory tenancy in the notice for possession”, and in paragraphs 71 to 72 refers to a council’s decision to seek possession as involving “a balancing exercise so far as other tenants or would be tenants are concerned”. But I do not consider that one can derive from McLellan any conclusion that reasons at the initial stage have to go into the necessity or proportionality in terms of article 8(2) of the decision to seek possession.[28]The purpose of the introductory tenancy scheme was and is to confirm a tenant’s suitability and reliability over the relatively short period of a year (cf paras. 7 to 11 in McLellan ). Absent some good explanation, a tenant who defaults in a significant amount of rent during this period is on the face of it unsuitable. If the reason for the default is an apparently unjustified failure or refusal by the council to meet a request for housing benefit, the position will look different, but where the tenant has never moved in, so that no housing benefit can be due, the apparent unsuitability is confirmed. A council which forms the intention in such circumstances to seek possession, and gives as the reason the rental arrears and the failure to occupy the flat, is on the face of it acting as would be expected. To require even a notice of possession proceedings to refer in such a case to matters of general council policy or the position of other actual or would be tenants would, I think, be unrealistic and not contemplated by s.128(3).[29]I would only add that there was nothing in the background to the present notice to lead the tenant to require or expect a more explicitly reasoned notice. On the contrary, the Council’s officer’s visit and conversation with him in June 2000 meant that he knew the basis of the Council’s attitude. I would therefore regard the notice of possession proceedings served in this case as having been in valid and sufficient terms.[30]The essential procedures, which in the court’s view in McLellan constitute the tenant’s protection after the incorporation of the Convention, were and are the right to an internal review with reasons under s.129(3), and the right to seek judicial review, whether of the original or of a review decision. Generally speaking, it is up to a tenant whether or not he takes advantage of either means of recourse and on what basis. The Convention entitles a tenant to respect for his or her home (article 8) and to a “fair …. hearing …. by an independent and impartial tribunal” (article 6). But, if a tenant wishes to challenge a council’s decision to seek possession, on the ground that it interferes with the tenant’s right to respect for his or her home, it is for the tenant to invoke the procedures which will ensure a fair hearing of that issue by an independent and impartial tribunal. McLellan establishes the opportunity and right of the tenant both to raise issues at the review stage regarding the necessity or proportionality of a possession order in his or her particular case, and to seek judicial review thereafter. Even prior to the incorporation of the Convention into English law, however, it is clear that a tenant had the right not merely to proper reasons at the stage of any original and review decisions, but also the right to seek judicial review (and to seek from the court an adjournment of any possession proceedings pending their resolution) on the ground that it was not fair or reasonable for the council to seek possession in his or her particular case. If necessary in a particular case in order to act consistently with the Convention, the intensity of any judicial review may since 2 nd October 2000 be heightened (see e.g. per Waller LJ at para. 97).[31]Since a court hearing an application for possession is a public authority, it was as I have said incumbent on DJ Mills on 3 rd November 2000 to refrain from acting in any way which would be incompatible with the Convention. In a case raising no possible Convention point, a district judge would be entitled to put the Convention out of his mind. In the present case, DJ Mills is recorded as having said that he did not have any option but to make a possession order. But he had an inherent jurisdiction to adjourn, and the power to draw the attention of a litigant in person to any possibility that an outright order for possession might infringe his Convention or other rights and that relief by way of judicial review might be sought. At the core of HHJ Ellis’ reasoning are conclusions that DJ Mills erred in ignoring or discounting this jurisdiction, that DJ Mills never even considered the possibility of an adjournment and that there was in HHJ Ellis’ assessment a sufficient prospect of a successful application for judicial review to call for an adjournment.[32]I turn in these circumstances to consider whether HHJ Ellis was wrong to conclude that DJ Mills erred in saying that he had no option but to make a possession order. This is largely the obverse side of a question whether there was sufficient material before DJ Mills to require him to raise and hear argument on the question whether or not to grant an adjournment, to enable an application for judicial review or to enable the tenant to take advice regarding that possibility. As I have recorded, the Council concedes that there may be exceptional cases in which a court should of its own motion raise the possibility of such a course. However, it submits that they should remain exceptional, particularly in the light of the information regarding the sources of help and advice given to tenants (pursuant to s.128(7) of the 1996 Act) in any notice of possession proceedings and the essentially neutral role of a court in the context of the English adversarial process. There is force in these points. Nevertheless, it seems to me that the Council sets the threshold too high, if and when it suggests that the court should only consider or raise the possibility of an adjournment in an “exceptional” case. The court has a general duty in possession proceedings relating to an introductory tenancy to consider the procedure which has been followed, and to have in mind both the statutory procedure (because of s.127(2)) and the Convention (because of the court’s role as a public authority). If a tenant is (as here) protesting that an order for possession would be wrong for some reason, and some apparent basis exists for saying that there has been a serious flaw in the procedure, including the reasons expressed for any review decision, the court should raise the possible flaw of its motion, and give both parties to opportunity to consider it.[33]In so far as HHJ Ellis relied upon inadequacy in the reasons given in the notice of possession, I have concluded above that the reasons there given were appropriately and sufficiently expressed and that it was not incumbent on the Council in its notice of possession proceedings to address any matter of necessity or proportionality. In these respects therefore I would disagree with HHJ Ellis’ conclusions that the Council may have acted unlawfully. This leaves HHJ Ellis’ conclusion that the Council may have acted unlawfully in failing to give adequate reasons, failing to address the issue of housing benefit and failing to address any matter of necessity or proportionality in its review decision.[34]At paragraph 103 in McLellan , Waller LJ said in relation to a council review under s.129:
“What I would stress is that where a review has taken place, in a case in which the council is seeking to take possession, it should be the norm for the council to spell out in affidavits before the county court judge, how the procedure was operated in the individual case dealing with the degree of independence of the tribunal from persons who took the original decision, the way in which the hearing was conducted and the reason for taking the decision to continue with the proceedings. In that way the judge will have the information on which he can take an informed view as to whether the matter should be adjourned to allow for an application to be made for judicial review. In this way also s.7 of the 1996 Act can be complied with so that the question whether it is arguable that any breach of human rights occurred can be considered at the county court stage.”
[35]I would make two points on this passage. The first is that it fits most readily into a situation where a tenant has sought and contested a review hearing (so that arguments will have been rehearsed on both sides), and will clearly wish to continue, so far as possible, to contest the actual making of any possession order. Having regard to the statutory requirement under s.129(5) for the landlord to give written notice of its review decision and the reasons for it, the normal expectation would be that production of that written notice would also satisfy the requirement to produce evidence regarding “the reason for taking the decision to continue with the proceedings”. Secondly, Waller LJ was laying down a valuable discipline for the future operation of the introductory tenancy schemes, in a way consistent with the provisions of articles 6 and 8 of the Convention. As a matter of substance, he cannot have been intending to suggest a procedure which would be expected or required in the case of past reviews. That does not mean that the court could uphold a past review that was not in fact operated properly and by a more senior officer with appropriate independence or that did not need to lead to an appropriately reasoned decision.[36]I consider the relevance of these two points in turn. As to the first, the present situation differs from that in McLellan . The tenant here failed to attend the review hearing, and the matter proceeded without representation or argument. The reviewing officer cannot have had before him any new material. So the scope for any evidence, and for any different or fuller reasons compared to those given for the original decision was considerably restricted. I would therefore disagree with HHJ Ellis’ apparent conclusion that it is or may be incumbent on a council in a case such as the present to address the question of necessity and proportionality in a review decision, even though the tenant has raised no issue in this regard.[37]As to the second, the present review took place long before the decision in McLellan , so that it presumably crossed no-one’s mind to produce evidence such as suggested by Waller LJ. Mr Latham submitted that the absence of positive evidence adduced by the Council on the independence and nature of the review itself meant that the review decision was flawed. But that is a point not covered by Mr Williams’ notice of appeal against DJ Mills’ decision or by the draft application for judicial review put before HHJ Ellis. It does not appear to have been raised at all before HHJ Ellis. There is no reason to think that it has any basis in fact, and I cannot regard it as assisting Mr Williams as respondent in this appeal.[38]The critical issue on this appeal is whether HHJ Ellis was wrong to conclude that the reasons given for the Council’s review decision were open to apparent challenge, particularly in so far as the review decision failed to address the question of housing benefit. This question was argued before and relied on by HHJ Ellis. The adequacy of the reasons given falls in my view, as I have said, to be judged by reference to the reasons given under s.129(5). Mr Latham on behalf of Mr Williams criticises these reasons, by pointing out that the reviewing officer only referred to the “substantial arrears of rent outstanding” on Mr Williams’ account, and does not specifically address the suggestion that Mr Williams had not moved into the flat, which had been made in the notice of possession proceedings, and was repeated in the subsequent particulars of claim. It is unfortunate that the reviewing officer did not address the second reason for seeking possession given in the notice of possession proceedings. This has given rise to argument as to whether he positively rejected or was not satisfied regarding that reason, as well as to the necessity for and proportionality of his decision, particularly if he relied simply on the fact of substantial arrears in circumstances where the Council were or might be at fault in failing to dispose of the tenant’s outstanding request for housing benefit to cover the arrears.[39]HHJ Ellis was in my view entitled to conclude that DJ Mills ought to have addressed his mind to the limitation in the reasons given for the review decision, and should have invited the parties to consider or address him on the significance if any of the absence of any reference by the reviewing officer in his letter to the second reason. But it is relevant to consider what would then have happened, and what explanation would have been given to DJ Mills, if he had raised the question, or had granted an adjournment after which both sides had come back before him. The overwhelming probability is that the Council would at once or in any event at a resumed hearing have explained the position regarding occupation and housing benefit, and produced the supporting material in its possession. The Council could and, there can be no real doubt, would have demonstrated convincingly that Mr Williams had, by his own admission on 22 nd June 2000, not moved into the flat, and that he had not made any contrary representation to the reviewing officer or at any other stage. During any adjournment, the Council’s position regarding housing benefit would have been further explained and reinforced in relation to the position up to 29 th June 2000 by the summary of events set out in the Council’s letter dated 11 th November 2000. Mr Williams’ failure to move in by that date would have the effect as a matter of law that no housing benefit was or could be due, as the Council had informed Mr Williams both by its letter dated 14 th June and in person on 22 nd June 2000. Even Mr Williams’ letter dated 14 th December 2000 (inconsistent though it was with his admissions on 22 nd June 2000) would, if it had become available, have constituted a further admission that Mr Williams had no entitlement to benefit for the first two months of the tenancy.[40]Mr Latham submitted that the underlying cause of most of the arrears could be attributable to the Council’s delay in dealing with Mr Williams’ housing benefit claims. He relies upon regulation 76(3) of the Housing Benefit (General) Regulations 1987, which provides:
“Every claim shall be determined by the appropriate authority within 14 days of the provisions of regulations 72 and 73 being satisfied or as soon as reasonably practicable thereafter”
. He suggests that, had the Council rejected Mr Williams’ claim to benefit within 14 days after its making, or at any time prior to 29 th June 2000, then Mr Williams would or might have moved into the flat and acquired an entitlement to benefit earlier. That is a new suggestion, not raised at the review or any other stage. I do not think that Mr Williams can blame the Council for taking time to ascertain what is now accepted to have been the true position, in circumstances where Mr Williams originally represented that he was going to move in on 3 rd April 2000, where he showed no real concern about the position when it was twice explained to him (by the letter dated 14 th June and by Mr Glover on 22 nd June 2000) and where the difficulties that the Council faced in ascertaining the actual position regarding occupation are apparent from the Council’s internal notes.[41]It follows from the above that even an adjournment and the most limited investigation by the district judge would have led DJ Mills to appreciate what it is now accepted represented the actual position, namely that Mr Williams’ excuse for non-payment of rent was unsustainable, and that the Council was right in its notice of possession proceedings dated 29 th June 2000 to state that Mr Williams had failed to take up occupation. Further, so far as material, Mr Glover’s subsequent reports on his visits by Mr and other events, particularly Mr Williams’ failure to provide documentation as promised on 22 nd June and on 5 th September 2000, would have reinforced a conclusion that Mr Williams was not a reliable tenant, even though it now appears that Mr Williams did actually move into the flat on or about 29 th June 2000. In addition, on the information available to the Council on 20 th July 2000, the only conclusion to which any reviewing officer could sensibly have come was one matching the actual facts, namely that Mr Williams had failed to move in and was not entitled to housing benefit as at the date of the notice of possession proceedings. In these circumstances, the failure of the reviewing officer specifically to address this point in his reasons cannot indicate that he failed or refused to reach any such conclusion. The overwhelming likelihood is that is that the reviewing officer treated the failure to take up occupation leading to a failure to receive housing benefit as background to the substantial resulting breach consisting of non-payment of rent. However, he should have spelled this out, especially having regard to the provisions of s.129(5) of the 1996 Act.[42]In many circumstances, a failure to give proper reasons would have to be regarded as vitiating the decision. Amongst other considerations, the giving of reasons concentrates the mind of the decision-maker, and a party is entitled both to know the basis of any decision, not least in order to enable him or her to consider the prospects of challenging it by appeal or otherwise: see e.g. Flannery v. Halifax Estate Agencies Ltd. [2000] 1 WLR 377 ; English v. Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605 . Failure to give adequate reasons may thus be a good self-standing ground of appeal: see Flannery , 381H per Henry LJ. But the extent of the duty to give reasons depends on the context: Flannery , 382A-B. In some circumstances the reasons may be implicit, or the court may be able, with knowledge of background, such as the evidence given and submissions made, to understand what they were: see English , paras.13 and 118. In others, as here, the context may have consisted of a factual background which was largely undisputed or indisputable. The principles governing the giving of reasons provided by cases such as Flannery and English focus strongly on situations where the decision-maker has had to resolve issues of fact or law about which the parties have put forward rival contentions. The present situation is one where the tenant did not attend the relevant review hearing or make any representations.[43]Mr Latham accepts that a court may confirm a decision otherwise vitiated by procedural irregularity if it can properly be said that the decision would inevitably have been the same even if the matter had been dealt with properly: see Barty-King v. Ministry of Defence [1979] 2 AER 80; Hussain Ali v. Somirun Ness v London Borough of Newham [2001] EWCA Civ 73; and he referred us to R. v. City of Westminster, ex p. Ermakov (1995) 28 HLR 819, where, at pp. 833-4 Hutchison LJ endorsed a previous statement by Schiemann LJ “that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same”. Mr Latham also started his oral submissions by expressly recognising a need to establish that there was a real prospect of successful judicial review proceedings.[44]In my view the position here is that any investigation before the district judge would have led him to conclude that the reviewing officer must have regarded the substantial arrears of rent as having arisen due to the tenant’s admitted failure to move into the flat, and that any attempt judicially to review that decision would have no real prospect of success.[45]Whilst not essential to this conclusion, the district judge would also have been entitled to take into account in this connection the fact that the period of three months limit for seeking judicial review in respect of the Council’s review decision had expired, so that any application for judicial review would have required the exercise of the court’s discretion of an extension of time. Mr Williams did not lack the means of obtaining advice. The notice of possession proceedings gave him the prescribed information in that regard, and he in fact went to a Citizens Advice Bureau in relation to the Council’s letter dated 26 th September 2000.[46]The Council’s submission that HHJ Ellis erred in refusing to take into account the delay in applying for judicial review subsequent to DJ Mills’ decision raises more complex considerations. I do not regard the existence of DJ Mills’ order for possession as itself justifying the failure to apply for judicial review. On the other hand, if DJ Mills ought himself to have raised the possibility of judicial review, his doing so would have alerted Mr Williams and those advising him behind the scenes to this possibility, and would presumably have been followed up, particularly if DJ Mills had thought it right to adjourn pending judicial review. Even so, the actual delay which occurred was certainly not attributable to the Council, and must to some degree be attributable to Mr Williams, who had legal and other expert advice from late 2000. If the delay could be shown to have prejudiced the Council’s position – in particular, if as a result of successful judicial review proceedings the tenancy would become a secure tenancy as from 3 rd April 2001 – that could be very material. Contrary to what both counsel said before us, however, I am not satisfied that that would be the position. In Cochrane at pp.820D-H, Sir John Knox indicated that this would not be the effect of successful judicial review proceedings, invalidating a review and leading to the need for a fresh review. According to this passage, and despite s.129(6), a fresh review could simply take place, and (if it still justified possession proceedings) it could be relied upon in the existing possession proceedings. So I put aside considerations of specific prejudice. I would still regard the failure to apply for judicial review until 23 rd November 2001 as some confirmation that judicial review was not the obvious course that Mr Latham now suggests.[47]In all the circumstances which I have outlined, I regard it as unrealistic to conclude that the district judge either would or should ultimately have ordered any adjournment to give Mr Williams an opportunity to apply for judicial review, or that any such application for judicial review would have had any success. I consider therefore that HHJ Ellis was wrong to order a stay pending an application for judicial review.[48]Mr Latham sought before us to argue a new point, not raised before HHJ Ellis and not (I would add) covered by any respondent’s notice (it appears, for the first time, in the actual judicial review application issued 23 rd November 2001). Mr Latham suggested that it was a “knock-out” point in relation to the validity of the review decision, and to the present appeal against HHJ Ellis’s decision to adjourn pending an application to seek judicial review. The point is this. Either Mr Williams was, or he was not, in occupation of the flat. If he was in occupation, he was entitled to housing benefit. If he was not, then, in Mr Latham’s submission, there was no introductory tenancy, and the whole procedure adopted of serving notice of possession proceedings under s.128, followed by a review under s.129 was misconceived. Since, as I have said, it is accepted that Mr Williams did not take up occupation before at least 29 th June 2000, it is the latter possibility that requires to be considered.[49]The submission relies upon the combination of s.125(5)(a) of the 1996 Act, quoted above and s.81 of the Housing Act 1985, which provides that a tenancy “is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied”. S.81 provides so far as material that “The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home….”. So it is argued that, since Mr Williams did not move in and occupy the flat, he could not have satisfied the tenant condition or had a secure tenancy, and therefore cannot have had an introductory tenancy. I see a number of potential difficulties about this argument. First, s.124(2) speaks of an introductory tenancy as something “entered into or adopted”, and s.125 contemplates that a tenancy so entered into may only entitle the tenant to possession at a later date, in which case the trial period is to run from the date of first entitlement to possession (not, be it noted, the date on which possession is actually taken). The agreement made with Mr Williams dated 21 st March 2000 itself only provided for him to take possession on 3 rd April 2000. The submission that there was no “introductory tenancy” for the purposes of the 1996 Act unless and until Mr Williams actually moved in seems therefore on the face of it surprising. Second, whether or not s.125(1) and (5) are capable of referring to compliance with the tenant condition applicable in the case of a secure tenancy, they refer to situations where an introductory tenancy is to cease, not to situations like the present, where, as I understand it, Mr Latham would suggest that no introductory tenancy ever began, at least before 29 th June 2000. Third, the argument assumes that Mr Williams was not in occupation for the purposes of the Housing Act 1985 prior to 29 th June 2000. But, although we heard no submissions on this aspect, the note to s.81 of that Act in the County Court Practice 2000 on which Mr Latham relies suggests at least a strong possibility that “occupation” in this context may on the authorities have a broader meaning than under, for example, the housing benefit regulations. Fourth, if Mr Williams moved into the flat on 29 th June 2000, as it appears may have been the case, then, even if Mr Latham’s argument were otherwise good, an introductory tenancy might be said to have come into existence at the time of the service on the same day as the notice of possession proceedings. Having identified all these potential difficulties, it is unnecessary in my judgment to say anything more about them. It is sufficient to say that, having the gravest doubt about its correctness in law, I would decline to allow Mr Latham’s new “knock-out” point to be raised for the first time on this appeal, with or (as is the case) without any respondent’s notice supporting it.[50]In the result, I would allow this appeal on the basis that HHJ Ellis was wrong to conclude that there was any real prospect of successful judicial review proceedings, and I would restore the order for possession made by DJ Mills.[51]Sir Martin Nourse: I agree.

Lord Justice Ward: I also agree.

Order

appeal allowed and order of district judge restored; respondent to be paid one half of his costs here and below; order made in terms of draft minute of order. PRIVATE  (Order does not form part of the approved judgment)

Cited in 2 later judgments