Two cases on a similar issue to report, one in the High Court and one in the Court of Appeal. Both concerned Section 202 Housing Act 1996 reviews and both dealt with issues of the notification of the review decision. The cases are not available on bailii yet, or apparently elsewhere, but are reported in Sweet & Maxwell’s Housing View and I’ve seen transcripts. The cases are:
Dragic v LB Wandsworth High Court (QB) 21 January 2011 QB/2010/0485
Dharmaraj v LB Hounslow Court of Appeal, January 24, 2011 B5/2010/0201
Dragic v Wandsworth
This was a second appeal from a County Court s.24 Housing Act 1996 appeal. Mr Dragic was owed the full housing duty by Wandsworth. He had been in temporary accommodation and refused an offer of permanent accommodation that Wandsworth considered was suitable. Mr D requested a s.202 review, which was carried out. In a letter dated 23 March 2010, Wandsworth concluded that the accommodation was suitable and it was reasonable for Mr D to accept and live in the accommodation in discharge of s.193 duty.
This was the point that things went wrong and that gave rise to the issue on appeal. The issue was, quite simply, whether notification to Mr D’s solicitor of the review decision was notification to Mr D, for the purposes of the 21 day deadline for filing a s.204 appeal. Wandsworth had sent the review decision letter to Mr D’s then solicitors, Morgans. It was found, by the first instance appeal court, that notification would therefore have taken place on 25 March 2010, giving a deadline for the filing of appellant’s notice of 14 April 2010.
The Appellant’s Notice was actually sent to the Court by Mr D’s new solicitors, Blacklaws on 16 April and issued on 19 April. In directions, the Circuit Judge noted that an application to extend time to appeal had not been made until 5 July 2010. At the hearing of the s.204 appeal, the Circuit Judge held that the appeal was made out of time. The CJ rejected the argument that time began to run when the applicant received the notice, not his solicitors, based on the word ‘his’ in s.204(2), on which more below. The CJ held that the usual rule that where a solicitor is acting for an applicant, all that was necessary was to serve the solicitor applied.
The appellant’s solicitors argued that permission to appeal out of time should be granted because Morgans had told the appellant they could not act in the appeal for funding reasons and Blacklaws did not receive the review decision until 31 March 2010.
The CJ held that this was not a good reason, based upon an attendance note from Morgans which apparently showed that the appellant had been informed of the procedure and time limits for appeal on 25 March. Further the appellant had contacted Blacklaws on 25 March and “all the new solicitor had to do was contact Morgans to clarify the position”.
On second appeal, Mr Justice Supperstone QC heard the appellant’s argument that:
The CJ was wrong in law to hold that the 21 days ran from the date of notification to the appellant’s then solicitor. This ignored the word ‘his’ is s.204(2) and was inconsistent with Barrett v Southwark LBC  EWHC 1568 (QB) [our report here], where time was taken to run from the date the letter was received by the applicant, which was the day after the notification was received by her advisers. Time should run from the date the decision letter could have come to the applicant’s attention, not his solicitors. This was supported by s.203(8)
S.204(2) reads: “An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.” [‘he’ being the applicant]
S.203(8) reads: “Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.”
Mr Justice Supperstone QC dismissed the appeal. Barrett did not argue the agency matter fully, so was not relevant. The issue in Barrett was rather whether the relevant date was the date of letter or date of receipt. In any case, the appeal was well out of time.
The general rule of notification to an agent is in R v Chief Immigration Officer Manchester Airport ex p Insah Begum  1 WLR 141 and followed in Tkachuk v SoS for work and Pensions  EWCA Civ 515. “Notice is sufficient to comply with the Act if given to the applicant himself or his agent, provided the agent is authorised to receive it on his behalf or may be presumed to have such authority.”
Dharmaraj v LB Hounslow
And in case one was wondering if the issue might yet go further, the Court of Appeal got to have a go shortly afterwards.
Mr D had applied as homeless following a possession claim by his private landlord. The LL claimed for rent arrears. Mr D was found intentionally homeless by decision letter dated 13 August 2009. On 19 August 2009 Mr D’s solicitors requested a review and on 21 September 2009 submitted documents and a statement in support – Mr D’s argument being that the landlord had got rid of him as he complained a lot about failure to repair defects.
On 28 September 2009, the Review officer faxed a 7 page decision to Mr D’s solicitors. The review upheld the s.184 decision. At the end of the letter, it stated that the applicant had “21 days from the date of this letter” to appeal on a point of law.
On 13 October 2009, notice of appeal under s.204 was issued. The basis of the appeal was that:
there was the procedural deficiencies in the notification, the consequence being that there was no effective review decision made and therefore it was the original decision that the Appellant had made himself intentionally homeless which was the decision being appealed. If that prong were unsuccessful and the review decision is on appeal, the reviewing officer had failed to take into account relevant considerations.
The appeal was dismissed on both grounds by HHJ Mitchell at Central London County Court. The applicant appealed on the first issue, that there was no effective review decision.
At the Court of Appeal, the applicant argued that:
S.204(1)(b) provided that an appeal may be brought on the original decision if the applicant is not notified of the review decision with the (56 days) period set out in s.203.
1) The review letter is defective because the final paragraph does not comply with s.203(5) because it should have said that the Appellant had 21 days from his being notified of the decision to appeal;
2) By reason of s.203(6) notice of the review is not to be treated as given;
The argument was therefore that
sending the Appellant’s notice by fax [to the solicitors] did not comply with the statute. The notification was still defective in form despite being sent on the same day. The language of the Act allowed no scope for the interpretation that the local authority were arguing. Further, there had been no waiver by the Appellant of the right to argue that there was no review decision capable of an appeal.
Hounslow argued that:
1) The review letter complied with the statute because it correctly informed the Appellant of the date by which to appeal. The Appellant was notified by virtue of it being faxed;
2) If s.203(5) was not complied with the time limit did not start to run against the Appellant but the review decision should not be treated as a nullity;
3) The notice of appeal was issued as an appeal against a s.202 decision and the Appellant had the opportunity to consider it. The Respondent asked the court to consider the parliamentary intention of the legislation when making its decision.
The Court of Appeal found that notification to the applicant’s solicitors was good notification, despite the arguments raised on the meaning of s.203(8) and s.204(2), as in Dragic. There was no requirement for personal service and the Council was entitled to take the solicitor as being the appropriate person to serve. “The appointment of Solicitors to request a review carries with it a holding out of those Solicitors to be authorised as able to receive”. The decision in Dragic – properly mentioned by the applicant’s barrister who also acted in that case – upheld.
The review decision letter therefore correctly set out the time for appealing, given that it was faxed within working hours. Further,
It is not right to construe s.203(6) as imposing a linguistic requirement that the review decision letter must use precisely the language of s.203(5). What matters is the substance of the information to be supplied rather than the precise form.
If I’m being honest, I’m not particularly surprised by the outcomes here. Certainly my presumption was that if a solicitor had made review submissions, service of the decision on the solicitor would be service on the client, for the purposes of the deadline to appeal. While statute does specify ‘his being notified’, a solicitor formally acting would surely stand in as that person. That the Council would be entitled to rely upon it as service upon the applicant is really to say nothing more than the Council are entitled to presume that the applicant’s solicitor will inform their client promptly and not faff about. It is worth noting that Barrett did involve an ‘extension’ of a day from the date a review decision was received by the applicant’s advisers, but that the advisers were an Advice Centre, not solicitors.
The finding on the language of the ’21 day warning’ in Dharmaraj is perhaps a little less than helpful, though. While the phrasing used -21 days from the date of this letter’ – was good in this this instance as the letter was faxed in working hours, it is a phrasing that crops up all too commonly on letters that are posted and are received two, three or more days after the date on the letter.
The Court of Appeal make no particular finding on that possibility, but do state that it is not a matter of including the precise statutory wording:
The wider approach is to consider whether there is a breach of the underlying purpose of the statute, not to automatically make it a nullity.
I simply can’t see why the notification in the review decision should not be required to set out the correct position, without ambiguity or indeed error.
In a situation where someone may be trying, with considerable difficulty these days, to find an advisor, an apparent shortening of time could cause them to give up while still within the time limit. My view is that it would hardly be a hardship to Councils for the stock phrase pasted into the end of each s.202 review decision to properly and accurately read ‘ within 21 days of the date you received this letter’. There is no valid reason for them to say anything else.