08/07/2013

Not pending this appeal

Zak Johnson v City of Westminster [2013] EWCA Civ 773 [Not on bailii yet, transcript on Lawtel]

When bringing a second appeal to the Court of Appeal from a section 204 Housing Act 1996 appeal to the County Court, what is the applicant’s route to challenge a refusal by the local authority to provide accommodation pending appeal to the Court of Appeal?

Mr J had applied as homeless and, following a negative decision and negative s.202 review, he appealed to the County Court. The Council refused accommodation pending appeal until Mr J had sought an order under s.204A of the Housing Act 1996 for accomodation pending appeal. That application was compromised with the Council providing accommodation. The s.204 appeal was dismissed and Mr J applied to the Court of Appeal for permission on a second appeal. Mr J requested continued accommodation pending the Court of Appeal hearing from the Council. This was refused.

Mr J then applied to the Court of Appeal for interim relief – the provision of accommodation pending second appeal.

The question for the Court of Appeal was whether it had jurisdiction to make such an order.

Mr J argued that:
1. There was jurisdiction under CPR 52.10(1) as there was a pending appeal to the Court of Appeal from a County Court decision.
2. The Court of Appeal should constitute itself as the Administrative Court to consider the Council’s refusal to provide interim accommodation.
3. The Court of Appeal had ‘implicit jurisdiction’ to achieve the two principle objectives of correcting wrong decisions and ensuring pubic confidence in the administration of justice.

The Court of Appeal noted that s.204A(3) meant that there could not be an application to the County Court for interim relief, as the appeal was subsequent to the ‘final determination’ of the County Court of the main appeal. However s.204A(2) made it clear that any appeal against a decision not to provide interim accommodation pending appeal could only be made to the County Court.

The s.204A powers given to the County Court were intended to replicate the limited powers that had been available on judicial review of a review decision, prior to the 1996 Act. They only applied in the limited position of the Council refusing to provide accommodation pending a s.204 appeal. They did not apply once a s.204 appeal had reached a final conclusion and a second appeal was pending to the Court of Appeal. There was therefore no question of the Court of Appeal exercising the County Court’s s.204A powers in this situation. The Court was not prepared to read the words “or any appeal therefrom” into the end of s.204A(3), or imply them, though such a construction if there were no other means of recourse of the courts.

However, there is such a means of recourse, by Judicial Review. The suggestion in R(Konodyba) v RB Kensington & Chelsea [2011] EWHC 2653 (Admin) [our report] that there might be ‘a respectable argument’ that Judicial Review was no available was wrong.

The suggestion that the Court of Appeal had a power under CPR 52(10)(1) was also not accepted. That provision only applies to appeal or pending appeals before the Court of Appeal. However, the 1996 Act clearly treats appeal of review decision and the discretion to provide accommodation pending appeal as discrete issues (even though both can be dealt with in the same notice of appeal as per PD52D 28). In this case there had been no order by the County Court under s.204A so the refusal to grant accommodation was not an issue appealed to the Court of Appeal.

If there had been an application to the County Court under s.204A and that had been refused, and permission sought to appeal to the Court of Appeal, that would have been a ‘second appeal’ so CPR 52.13 would apply. Whether that appeal should be to the High Court of Court of Appeal not decided, but obiter, probably to the Court of Appeal.

GIven the framework of the 1996 Act and the availability of judicial review, the ‘implicit jurisdiction’ argument was rejected. This was not a ‘case of last resort’.

Mr J should seek judicial review. The Court of Appeal was not prepared to constitute itself as the Administrative Court for this purpose. The time to hear argument on the Mohammed criteria and application in this case was too limited.

In the absence of jurisdiction, application dismissed.

Comment

Worth noting, procedurally. Taking a s.204 appeal decision to the Court of Appeal will require a judicial review alongside it to challenge a refusal to accommodate pending second appeal by the Council, assuming that there is a viable challenge on failure to apply R (Mohammed) v LB Camden [1998] 30 HLR 315 principles.

The exception is where what is being challenged is the County Court’s refusal to order temporary accommodation pending s.204 Appeal on a s.204A application, and that is probably an issue for the Court of Appeal, where CPR 52.13 applies.

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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