By SJM
18/08/2013

Better Late than Never?

Peake v LB Hackney [not yet on Bailii] is another cautionary tale about the importance of lodging statutory homelessness appeals within the 21 day limit.

Ms P was found intentionally homeless by the Council following the surrender of a tenancy of accommodation which she occupied with her family in Lewisham and her subsequent departure from her mother’s home. Ms P requested a review of the initial decision and the negative review decision was notified to her on 4/12/12. Ms P explained in her appellant’s notice that the initial 21 days were taken up with searching for private sector accommodation, raising finance and attending a DWP Back to Work scheme. She also had difficulties obtaining representation for the appeal until 2/1/2013, when she approached Hackney Community Law Centre. Counsel was instructed on 7 or 8/1/13 and the appeal was lodged on 15/1/13.

On Ms P’s application, the County Court judge made an allowance for the Christmas and New Year period and found the appeal to be roughly 2 weeks late. In looking at the initial 21 days, the judge assessed Ms P’s ‘judgement call’ and considered that the steps she took (or failed to take) could not be treated as a good reason for not bringing the appeal in time. In other words, it was perfectly possible for Ms P to lodge her appeal within the statutory time limit and she could not expect the Court to grant relief if she failed to do so.

On her appeal to the High Court, Ms P argued that the judge ought to have dealt with the question of ‘good reason’ from a subjective viewpoint. In approving Barrett v LB Southwark, [our note here] Lewis J held that the subjective/objective distinction was not helpful. Ms P’s circumstances were relevant but they still had to explain the delay for not bringing the appeal in time. Lewis J agreed with the County Court’s assessment of Ms P’s judgement call.

Ms P then argued that by failing to take into account the merits of her appeal, the County Court had determined her civil rights in violation of Article 6 of the ECHR. Lewis J held that so long as it was permissible for Parliament to impose time limits for the bringing of appeals, coupled with the power to extend the limit for a good reason, the fact that the Court could not then look at the merits if it found no good reason did not involve a breach of Article 6.

The Appeal was dismissed.

Comment: the Article 6 point was dealt with briefly in this judgement but the relevant ECHR case law would appear to support the Judge’s assessment, even if Ms P’s argument had a certain ring to it. Art 6 goes hand in hand with Art 13 (the Right to an Effective Remedy) and a State is entitled to impose restrictions on an individual’s right of access to a Court so long as the restriction is proportionate and the essence of that right is not impaired (Ashingdane v UK). States enjoy a margin of appreciation in imposing time limits which ensure legal certainty and finality (Stubbings v UK) and where a scarce resource such as housing provision is involved (Bah v UK).

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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