Accommodation pending Appeal – where to appeal a refusal?

Davis v Watford Borough Council (2018) EWCA Civ 529

A technical appeal on a point of construction of Housing Act 1996 on homelessness appeals that has considerable practical importance.

Usually when a s.204 appeal is being issued, and the council has refused to accommodate pending the appeal under s.204(4), the route to take is to appeal that decision to the county court under s.204A.

However, what happens when the s.204 appeal is brought because the Council has failed to complete the s.202 review decision, in time or at all under s.204(1)(b)? When such an appeal is brought, the decision under challenge in the appeal is the original s.184 decision.

That is what had happened in this case. A review of a negative s.184 decision had been requested and, although the council had sent a ‘minded to’ letter some 8 months later, no review decision was issued. Mr D issued a s.204 appeal and requested accommodation pending appeal. When this was refused, Mr D brought a judicial review claim on the decision not to accommodate pending appeal.

This was shortly disposed of by refusing permission when the council argued that there was the alternative remedy of a s.204A appeal.

Mr D appealed the decision of the Administrative Court to the Court of Appeal.

Mr D argued that “the meaning and effect of the wording of s. 204A (1) was such, properly read according to its actual terms, that the appeal jurisdiction of the County Court under s. 204A only arose where there had been a “decision on a review” by the local authority. Here there had not.”

S.204A(1) reads

This section applies where an applicant has the right to appeal to the county court against a local housing authority’s decision on a review.

The Court of Appeal agreed that this was the clear meaning, rather than accepting the ‘purposive’ interpretation put forward by the council.

In my view, and whether at first sight or at second sight, the meaning of s. 204A (1) appears plain. It applies where an applicant has the right to appeal to the County Court “against a local housing authority’s decision on a review”. I agree with Mr Paget (for the council) that s. 204A has to be put in the context of s. 204 (indeed, it has to be put in the context also of Part VII as a whole). But if that is done, those words in s. 204A (1) naturally link back to, and refer only to, the provisions of s. 204 (1)(a) relating to a “decision on the review”. On the face of it, it is impossible to see how such words can relate to the position where there has been no decision on the review. The submission of Mr Paget in effect involves the proposition that the word “decision” includes a situation where there has been no decision: a difficult proposition indeed.

The proceedings had been properly commenced in the High Court by way of judicial review.

The matter was academic as Mr D was accommodated following a s.204A appeal on a still subsequent s.204 appeal of the council’s finally delivered s.202 review decision, but the appeal had been considered as a point of construction of wider importance.

About Giles Peaker

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, and still is Nearly Legal on Google +.
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