Out of time homelessness appeals – trying to find representation not good enough reason

London Borough of Hamlets v Al Ahmed (2019) EWHC 749 (QB)

Mr Ahmed had applied to Tower Hamlets (oddly named as ‘Hamlets’ in the reported judgment) as homeless. A decision that he was not in priority need underwent a s.202 review, which upheld the decision, and this was received by Mr A on either 4 or 6 April 2018. The 21 day period within which a s.204 appeal notice was to be filed was therefore either 25 or 27 April 2018.

In the event, Mr A filed an appeal with an application for an extension of time on 25 May 2018. At first instance, the application for an extension of time was granted. Tower Hamlets appealed that decision.

When Mr A received the review decision, he had solicitors, but that relationship broke down. The history is set out in a letter from Mr A’s caseworker at Crisis:

 

“Abdullah had been linked in with Myles and Partners who were representing him in the initial appeal but the relationship of trust and confidentiality between the client and their service broke down and was no redeemable.

We have a list of legal advice providers in close proximity to E1 that we call on to support our clients with their legal matters and I spent a few weeks trailing through the list calling companies only to be told by their client housing caseloads were full or that they would get back to me. I rang TV Edwards, Duncan Lewis, Aden and Co, Edwards Duthie and Tower Hamlets Law Centre to name but a few and no one was in a position to take the case on.

It was only when I contacted Malcolm and Co who deal with private clients that I got to speak at length to a solicitor Sally Goldman about the case. She advised me to speak with Sean Shanmuganathan at Tyrerroxburgh who kindly looked through the documents and after meeting with Abdullah and myself decided to grant emergency legal aid on our behalf.

I am submitting the last two doctor’s letters to Sean one of which states Abdullah’s medical conditions he would undoubtedly become more vulnerable to deterioration being homeless, despite his doctor’s opinion he has been sleeping in a park since his eviction on the 4th May and is fasting for Ramadan he is becoming weaker with the stress and exposure of sleeping outdoors.

We would really appreciate if you could excuse our delay and take on his appeal, that way we may be able to secure some emergency accommodation in the short term and grant him the support he desperately needs.”

Mr A’s health conditions were “a severely underactive thyroid (causing depression and lethargy); lower back pain affecting his ability to sit for any length of time and causing burning and numbness of the shins and pain in his knees; dizziness and unusual bodily sensations for which he has been referred to a neurologist.”

The conditions for an extension of time for an appeal are set out in s.204(2A):

“The court may give permission for an appeal to be brought after the end of the period allowed by subsection (2), but only if it is satisfied—

(a)where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time; or

(b)where permission is sought after that time, that there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.”

The issue on the appeal was whether Mr A had ‘good reason’.

At first instance, the judge had held:

 

“14. I stand back and look at all the relevant circumstances. Whereas it is true that Mr Al Ahmed could have filed an appeal in time- there was no mental impediment to him doing so, and there was no logistical impediment because he had access to a computer and the review letter stated very clearly what he had to do – he sought assistance with the preparation of this technical legal document. In my judgment he probably had no idea what it needed to say. Aware of his limitations, he sensibly sought assistance from Crisis. He trusted them to do what was necessary to get his appeal up and running, including filing it in compliance with any time limits. This was a reasonable position for him to take. Crisis took the view, which was also reasonable, that Mr Al Ahmed needed legal representation. The wisdom of that course is borne out by comparing what Mr Al Ahmed wrote in his length emails to the Council with what is set out very succinctly in the grounds of appeal filed, albeit out of time, by his legal representatives. It is, however, unfortunate, that Crisis did not either ensure that the appeal was filed in time or explain to Mr Al Ahmed that, notwithstanding their assistance, that is something which he had to do.

15. This is a borderline case, but where there is a borderline case in my judgment the court should err in favour of granting permission to appeal out of time and that is what I propose to do. I say err, but I am satisfied that on the particular facts of this case, given the particular capabilities of this appellant and the particular course of conduct he had taken, seeking and relying upon the guidance which he had obtained from Crisis, it was reasonable for him to wait for Crisis to find him a legal representative because without a legal representative this appeal was never going to go anywhere. Whether it goes anywhere now that he has got one remains to be seen and I express no view on that question, but I am going to give permission to appeal out of time.”

Tower Hamlets argued that
i) The Judge had applied the wrong test on good reason, by considering whether Mr A could conduct the appeal by himself, rather than being able to bring the appeal before the court in time;
ii) The Judge had taken into account an irrelevant consideration – whether Mr A had the ability to conduct the appeal by himself;
iii) The decision was irrational as there was no evidence that Mr A was not able to bring the appeal before the court himself, his medical conditions did not prevent it and he had the administrative means.

Mr A argued that the delay was solely for finding legal representation. There was no distinction between bringing an appeal and conducting an appeal. “Bearing in mind that an appeal can only be brought on the basis of an error of law, it was entirely understandable that legal assistance was required by the Respondent before a claim could be formulated.”

Mr A further argued that it was not unreasonable for an appellant to await securing of legal aid before commencing proceedings.

Without the protection of a legal aid certificate the proposed Appellant would expose himself of herself to adverse costs consequences. Furthermore, the need to have regard to the financial position of each party arose from CPR 1.1(2), which made reference to the financial position of each party in determining whether a court’s case management decisions were proportionate. Again, on the basis that homelessness law is complex, Mr O’Sullivan submitted that it is reasonable to expect that a person in the position of the Respondent would be permitted to await the grant of legal aid before being required to issue an appeal.

The High Court held:

Any decision on ‘good reason’ was not influenced by the merits of the appeal – Short v Birmingham City Council (2005) EWHC 2112.

‘Bringing an appeal before the court’ was not the same as conducting an appeal. All that was required to ‘bring’ the appeal was an appellant’s notice, grounds of appeal and fee (or obtaining fee remission).

I am unable to accept the contention that it is necessary for a lawyer to be instructed before adequate grounds of appeal, sufficient to bring the appeal before the court, can be drafted. For instance, in the present case the two grounds which are raised by the Respondent are ones which in substance (as opposed to the precise legal detail) obvious sources of complaint, namely the failure to provide him with the “minded” letter and thereby afford him the opportunity to respond to it, and the failure to properly examine and take account of his medical difficulties. The grounds of appeal would have been no less adequate had they been expressed in those simple terms. They have benefited from, but did not require, the added legal sophistication provided by Mr O’Sullivan’s drafting. I have no doubt that an application to strike out grounds drafted by an unrepresented party along these lines would be met with short shrift, since the essence of the errors of law complained of would be capable of being easily identified from the pleading.

Being unrepresented did not amount to good reason in itself.

The Judge below had therefore misdirected himself, both as to the meaning of ‘bringing an appeal’ and as to whether obtaining legal representation could amount to good reason.

Mr A’s argument in the respondent’s notice, that awaiting the securing of legal aid was a good reason, was rejected.

The appeal succeeded and the application to extend time refused.

Comment

I suspect this will be bound for the Court of Appeal.

Amongst the various arguments, one part stood out for me, on the issue of preparing grounds of appeal. Mr A’s proposed grounds of appeal were:

 

that the Appellant had asserted in its decision that it had provided the Respondent with a “minded” letter, seeking further representations from him, on the 15th March 2018, and that the letter had never been received by the Respondent thereby preventing him from making any further representations and impeding his access to justice. The second ground of the appeal was that the Appellant had failed to properly enquire into the Respondent’s medical condition and thereby properly engage with its duty under section 149 of the Equality Act 2010.

The High Court took the view that these were ‘obvious grounds of complaint’, that a litigant in person should be expected to raise, albeit not necessarily in the briefest or clearest of ways. This strikes me as frankly somewhat blasé. The idea that an unrepresented appellant would grasp the significance of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 and their rights to make representations in response to a ‘minded to’ letter, let alone grasp that this would be an issue of law, seems frankly far fetched, at least in my experience.

It may be that the High Court was seduced by the clarity of the grounds as drafted by counsel into a belief that these were obvious points that anyone would raise, but that is to ignore the first instance Judge’s finding that the need for legal representation “is borne out by comparing what Mr Al Ahmed wrote in his length emails to the Council with what is set out very succinctly in the grounds of appeal filed, albeit out of time, by his legal representatives”. It does not appear that the High Court considered those emails and whether any of them did raise, however inchoately, the grounds of appeal.

Of course, the current general trend in higher court case law is not to give procedural indulgences to LiPs as a matter of general policy. But in a hugely technical arena, like a s.204 Housing Act 1996 appeal, and where the majority of appellants are unlikely to be sophisticated litigants in person, but rather people dealing with actual or imminent homelessness, I’m not sure such a general approach holds out.

Add to that the real and increasing difficulties in obtaining legal aid housing specialist representation – and Mr A or Crisis on his behalf were very active in seeking representation – and I do wonder how long and to what extent the courts can carry on as if this was not a factor.

But we will see. For now, the lesson for homeless applicants and advisors/caseworkers is don’t wait on representation. Get an appellant’s notice in on time, with whatever grounds you can come up with. Better to be later facing the problem of amending grounds of appeal than to be refused permission to appeal out of time on an appeal with merits.

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 +.
Posted in Homeless, Housing law - All and tagged , , .

One Comment

  1. I agree that this decision seems incredibly harsh for the applicant.

    It also seems pretty nasty for voluntary-sector advisers such as CAB (or, in this case I guess, Crisis). Does this mean that where an applicant cannot be referred to legal representatives in an acceptable timeframe that advisers who often aren’t trained to identify points of law are expected to risk exposing clients to the costs of filing an appeal when they’ve no idea whatsoever if there’s any merit to the case, just to be on the safe side? Seems like madness.

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