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12/07/2008

S.204 Appeal out of time

Barrett v LB Southwark [2008] EWHC 1568 (Comm) was an appeal of a dismissed application for permission to make a s.204 appeal out of time on an intentional homelessness decision upheld at s.202 review. For some reason it was heard in the Commercial Court (?) and it isn’t yet on Bailii, but is on Lawtel for those that have access.

First a note of the judgment, and then a spot of finger pointing.

Ms Barrett is profoundly deaf with three children, two under 18. She became homeless after a mortgage repossession, because she couldn’t keep up payments. After application to Southwark as homeless, she was notified on 2 July 2007 that they had decided she was intentionally homeless. Ms Barrett went to Blackfriars Advice Centre, who submitted a ‘detailed submission’ for the s.202 review. Southwark finally finished the review in February 2008. The review decision was dated 7 Feb. It contained Southwark’s standard line that the right to appeal must be exercised “within 21 days from the date of this letter”. The review decision was received by Blackfriars on 14 Feb. On 15 Feb, Blackfriars notified Ms B of the decision and advised her she had 21 days to appeal and that she needed to see a solicitor. (Blackfriars don’t have funding for representation). She received the Notice to Quit from temporary accommodation on the same day.

According to Ms B’s evidence, there was then a lengthy and sorry tale of trying to find representation, receiving wrong advice from various sources, including solicitors, and finally getting a decent solicitor on 2 April. An appeal with application for permission was lodged on 3 April 2008.

The application for permission was refused by HHJ Gibson at Lambeth County Court. That decision was appealed to the High Court.

S.204(2) HA 1996 states that:

An appeal must be brought within 21 days of his [appellant] being notified of the decision, or, as the case may be, of the date on which he should have been notified of the decision on a review.

S.204[2A] adds

The Court may give permission for an appeal to be brought after the end of the period allowed by (2), but only if it is satisfied
(a) where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time, or
(b) where permission is sought after that time, that there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.

Here the issue was primarily S.204[2A](b). However the Court makes time to correct an error in HHJ Gibson’s judgment about the date from which the 21 days runs.

The date from which the 21 days runs is the date on which the applicant is notified of the decision. We all knew this, there are sufficient previous judgments on the matter, so I don’t know what HHJ Gibson was doing taking the date as the date on the letter.

Southwark’s routine line at the end of both s.184 and s.202 decision letters is wrong, and Southwark know it is wrong. In this case, the High Court also decided that one could not take the date the decision letter was received by the applicant’s advisors as being the date the applicant was notified. The proper date was 15 Feb. I’m not sure this would hold if it was solicitors advising on the s.202, rather than an advice centre, but it is an interesting point if one really needs to argue the extra day or so.

Much of the rest turns on the specific facts of the case. Ms B’s profound deafness and telephone communication via a not wholly functional type talk relay system, combined with the advice that ‘she needed a solicitor’, and her lengthy and determined efforts to find a solicitor, were considered. The High Court reversed HHJ Gibson, finding that there was good reason for the failure to bring the appeal in time and for the delay in applying for permission. The delay was because Ms B was seeking advice she could undestand and follow, and she had not received it until 2 April. In addition, although this is not a requirement for the exercise of discretion under s.204[2A], the appeal was not hopeless and had merits.

There are some general points to note.

‘Good reason’ should not be taken as simply a synonym for ‘valid reason’. Good reason has its common parlance meaning. The definition of ‘good cause’ in Social Security Commissioners Decision R(S) 2/63(T) expressly approved. it reads:

In Decision C.S 371/49, the Commissioner said “”good cause” means in my opinion, some fact which, having regard to all the circumstances (including the claimant’s state of health and the information he had received and which he might have obtained) would probably have caused a reasonable person of his age and experience to act or fail to act as the claimant did”. This description of good cause has been cited in countless cases. it has stood the test of time. In our judgement it is correct. The word ‘fact’ of course means a combination of events happening either simultaneously or in succession.

Refusing to accept unfavourable advice, by itself, does not rule out good cause. (This is reference to an odd part of HHJ Gibson’s judgment, apparently saying that she should have accepted the unfavourable (and actually actively bad) advice, and by pressing on, she lost ‘good reason’ for delay.).

On costs, it is accepted that on an application for permission to appeal out of time, the costs should usually be borne by the applicant, although in this case, Southwark had sent Counsel to oppose the application rather than left it to the Judge, which would also be a consideration on costs. Ms B got the costs of the appeal of the decision on permission, with no order as to costs on the intial permission hearing.

Now for the finger pointing. Ms B’s evidence gave a detailed account of trying to find a solicitor to take on the appeal. She went to the Law Society’s find a solicitor site. All of those she initially contacted turned her away, referring her to others. The judgment speculates that solicitors were reluctant to take the case because

It appears that legal aid housing advisors get paid only a limited fixed fee for their work in this field, and dealing with a deaf client adds to the time to be spent on the case.

I don’t know where the Court got this from (I suspect a misunderstanding, but then I haven’t yet met any Counsel who fully understand how funding actually works), but it is, of course, wrong. A s.204 appeal would spend about 60 minutes on a fixed fee legal help before devolved powers were used to enable the appeal to be drafted, grounds prepared and issued.

What is clear is that Ms B spent a lot of time trawling round firms, both legal aid and non-legal aid. Her statement, as paraphrased in the judgment, makes for deeply discomfortingly reading. Now, I grant that none of the firms mentioned got to put their account of events, but I would also say that some of the ‘who and what’ did not surprise me. So, I quote:

Ms Barrett’s daughter spoke to Andrews Solicitors without revealing Ms Barrett’s deafness and they agreed to give her an appointment. When she arrived she says they told her that nothing could be done. They did not tell her why that was so; she never received a client care letter or any letter confirming the advice. She thinks she was asked to pay about £130 for this service. [Interesting, Andrews do or until very recently did legal aid!]

On 12 March Ms Barrett secured an appointment with Messers Gan & Co, and she was told she should ‘forget trying to bring an appeal’. The solicitor did not explain why but drafted a letter for her to send to the Council requesting that they extended the deadline for termination of her temporary accommodation. She was handed a summary of what had been said. The note starts: “we have objected to Notice to Quit – this is best.

Ms Barrett found out about a service called Community Legal Advice [presumably the CLS advice line] and she contacted their helpline on 19 march. the following day she received an advice letter in which it was said “the decision can only be appealed within 21 days of the date of the review decision, which will have passed in your case. You can stil make the application, but the court may reject it for being out of time”. They further said that bringing an appeal was “outside our remit as we do not deal with civil claims”. The organisation sent her a list of solicitors whoe, they suggested, she should contact. [If this is the CLS, well done. Wrong advice and actually fibbing about being able to act in a s.04 appeal – they can and do, via Derbyshire Housing Aid.]

Ms Barrett tried Glazer Delmar, was offered an appointment but was told they weren’t able to help when she got to their office having taken the day off work.

Next Ms Barrett

was told by Messers Peter Otto & Co that if she paid a fee of £60 they would try and help her. She paid. The person concerned rang up the Council and suggested she should return to the HPU to make a new application. {The HPU told her she was wasting her tine and the advice was wrong] She went back to the solicitors who “didn’t want to know and told me to leave”.

Finally, via Southwark Law Centre and the Southwark housing lawyers group email ring, Ms Barrett’s case was picked up by Pierce Glynn, who took the case to this appeal. Counsel was Stephen Reeder.

Where to start? Honestly, where to start? Obviously, I know the area. I can certainly believe that many firms referred Ms Barrett on. I can pretty safely say she didn’t contact my firm – I would almost certainly have been the one taking the call – but I can’t say that we would have been able to take the case. Maybe so, but we were pretty swamped then (as now) and I would probably have given her some other firm’s numbers and the CLS line and website. No issue about deafness would have been involved. I suspect the same would have been true for quite a few other firms.

However, if Ms Barrett’s statement is even close to a representation of events, the treatment that she received was at worst incompetent and exploitative – what the hell were non-legal aid, non-housing firms doing taking her money? Or in one instance what was a supposed legal aid, supposed housing firm doing taking her money and giving bad advice? – or at best careless of her situation. After all a day off work, unpaid, is a big deal.

Add in the well meaning but utterly out of their depth and plain wrong attempts at assistance by the Royal Association for Deaf People – for pity’s sake, advice people should not try to deal with these situations by having a stab at utterly unknown law themselves – and it is clear that, with the honourable exceptions of Blackfriars Advice Centre and Pierce Glynn, Ms B was pretty comprehensively failed by advice and housing law provision in Southwark/Lambeth.

At first glance, this looks like a strong argument for an LSC style CLAN – integrated diagnosis and referral across a network of providers. But then look at what the Community Legal Advice line did for her. And this is the LSC flagship for the new world of advice provision.

Frankly, I find this all very depressing. I know full well that there are lazy, incompetent and exploitative firms out there. I’ve been against them in a few cases. And there are some very good legal aid housing firms in this area of London, but I suspect that these were the ones at capacity. So where is the additional capacity? Because, on this anecdotal evidence, there isn’t much point in relying on the CLA phone advice to pick up the slack.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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