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Late review decisions and homeless appeals


Muloko v Newham LBC, County Court at Central London 6 April 2018

This is from a note of the judgment in June 2018 Legal Action – Housing: Recent Developments. I usually wait a month or two on reporting cases from Legal Action, but I report it now as it has some considerable importance, at least in London, for decisions on what to do about late s.202 reviews.

Where a s.204(1)(b) appeal of the original section 184 Housing Act 1996 decision has been issued, after the council failed to make a s.202 review decision in time (s.203(7) and Allocation of Housing and Homeless (Review Procedures) Regulations 1999), what happens if the council then make a s.202 decision?

In this case, Ms M had requested a s.202 review of Newham’s decision that she was homeless, but not in priority need. Newham failed to produce a review decision within time (and, I suspect, did not seek an extension from Ms M). Ms M brought a s.204(1)(b) appeal in the county court, which is against the original s.184 decision.

After issue of the appeal, but before hearing, Newham notified Ms M of what Newham asserted was its review decision. (I do not know the substance of that decision. In view of what follows, this is slightly frustrating).

Ms M’s solicitors took the view that the appeal was now academic and sought dismissal of the appeal on terms that Newham pay her costs, as per M v Croydon.

The appeal was dismissed but with no order as to costs. The circuit judge, HHJ Luba QC, held that Newham’s review decision, as it was out of time, was merely a purported decision. It did not therefore render the appeal academic.

HHJ Luba QC found that the appellant had a choice whether or not to validate the out of time review by retrospectively agreeing an extension of time (Jabe v Lambeth LBC Feb 2018 Legal Action 45).

If the decision was so validated, there may be a subsequent s.204 appeal of the validated s.202 decision, supplanting the s.204(1)(b) appeal and leaving only the question of costs on that first appeal.

If the decision was not validated by the appellant, the s.204(1)(b) appeal would proceed as against the initial s.184 decision. This was so regardless that the purported s.202 review decision may form the basis of a new s.184 decision if the appeal succeeded.

Proceeding with the s.204(1)(b) appeal and hopefully quashing the initial s.184 decision could be viewed as having potential advantages to the appellant, which would mean the appeal was not academic:

  • Any further s.184 decision could have a further s.202 review, by a different officer, who might come to a different conclusion.
  • There would be the opportunity to make further submissions on the subsequent s.184 and s.202 review.
  • Delay before a further s.184 decision might improve the appellant’s position.
  • The s.188 accommodation duty would arise again pending a new s.184 decision

As the appeal was not academic but the appellant had requested it be dismissed, the appropriate order was no order as to costs.


I’m not at all sure about this. Hasty initial thoughts.

I need to think about the finding that the late s.202 review decision is a ‘purported’ decision (at least until and unless there is retrospective validation by the appellant). But assuming that is right, I’m not sure that it follows that a s.204(1)(b) appeal is thereby not academic.

There would be three possible outcomes of the ‘purported’ s.202 review decision:

  1. The s.184 was upheld.
  2. The s.184 was not upheld but a negative review decision was made on other reasons.
  3. The s.184 was not upheld and the full housing duty found for the applicant.

On 1 and 2, there would be a clear basis not to validate the purported review decision and to proceed with the s.204(1)(b) appeal. On 1. the appeal against the s.184 would be in effect the same as against the s.202. On 2. then the logic set out in the judgment for the potential advantages of proceeding would apply.

However, on 3. the applicant/appellant would have no reason not to validate the purported s.202 review. There could be no benefit to the appellant in proceeding. The appeal would become academic if the appellant elected to validate the purported review decision, but the appellant would have no reason whatsoever not to do so. It would be, for both parties, a waste of time and costs otherwise. Moreover, the appellant would thereby have obtained the relief sought in the appeal.

But, if the decision on costs of a dismissed appeal is based on whether the appellant elected to validate a purported review decision, as here, and so ruling out the principles in M v Croydon, then the actual import of the purported decision would seem to be by the by.

So – hang on with me here – the council could not have validly made a changed decision, and the appeal would not have become academic by that purported decision. But if the appellant accepted and validated that decision, which would be wholly in her/his interests, s/he would not be entitled to their costs of the appeal on an M v Croydon basis, because s/he had decided not to proceed with what was a non-academic appeal. Even though they had got everything that they sought by validating the decision.

Unless, which is not at all clear from the note of judgment, the decision as to whether the appeal had become academic (and whether M v Croydon applied) was to be based on the substance of the purported review decision.

Either way, it has significance both for appellants in responding to late review decisions, post issue of s.204(1)(b) appeal and for respondent councils in making ‘out of time’ review decisions. I’m just not entirely sure what the significance is yet.





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.

1 Comment

  1. JS

    Some years ago HHJ Worster in Birmingham reached the conclusion that once the S204(1)(b) appeal was launched the LA was functus officio re the S202 review . In scenario 1 & 2 the s202 would be of no effect . If the court quashed the original decision then the LA would have to go off and do its S202 properly and take into account any findings on the S204(1)(b) appeal .

    In scenario 3 surely the LA should simply concede the S204(1)(b) appeal and pay the costs. Even if it was to argue it has come to a new conclusion on the merits due to information that has come to light following the S184 the only reason for the S204(1)(b) was its tardiness .


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