Permission to appeal out of time – the strict approach

Emambee v London Borough of Islington (2019) EWHC 2835 (QB)

We saw what seemed like a rather harsh refusal on permission to bring a s.204 Housing Act 1996 homelessness appeal out of time in London Borough of Hamlets v Al Ahmed (2019) EWHC 749 (QB) (our note). Here is another one which seems to take a strict view, both on when the s.202 review decision was received, and on delay to obtain legal representation.

Ms E had applied as homeless to Islington, who accepted she was owed the full housing duty and put her in temporary accommodation. Some months later, Ms E left to travel to Mauritius urgently as her father had suffered a stroke. She did not inform Islington. After a couple of visits, where Ms E’s belongings were in the property, but she wasn’t, and a couple of notices left, Islington decided she was not occupying the property and terminated the accommodation under s.193(6) and discharged duty by letter dated 6 December 2018. Ms E returned on 7 December and requested a review on 10 December 2018. She provided the documents requested.

Islington’s review officer upheld the decision to discharge duty and a letter was sent on 21 December 2018, by second class post. The letter was sent to the address of Ms E’s aunt (which had apparently been passed to Islington as a postal address).

Ms E’s aunt was away between 20 December 2018 and 8 January 2019. She notified Ms E of the decision letter on her return on 8 January. Ms E sought legal advice and obtained an appointment on 15 January. Appellant’s notice was drafted that day and marked by the court as issued on 18 January. Directions were given for a hearing to determine an application for extension of time to file the appeal.

At first instance, the court held that it was not satisfied that the appeal had been brought in time, with the relevant date being the date the letter was delivered to the aunt’s address.

As the Appellant’s notice was filed on 18 January, an appeal will have been brought in time if Ms Emambee received notification of the local authority’s decision on or after 28 December 2018.

Mr Choudhury submits, in relation to whether the Appellant’s notice was filed in time, first, that the notification date was the date of actual receipt by Ms Emambee, that is 8 January 2019 and, alternatively, that the court cannot be satisfied that the decision letter was delivered within 2-3 working days, as it was delivered during the Christmas period which is a very busy time for the Post Office. In those circumstances, it is submitted the court should proceed on the basis that it was delivered later and, hence, the Appellants’ notice was filed in time.

I am satisfied that the notification date was the date of delivery of the letter to the premises notified by Ms Emambee. This is by analogy with the concept of service. However, notification is a less technical concept; it is an ordinary English word, and so delivery was the actual date of delivery, and not a deemed date of delivery. If I adopt Mr Choudhury’s submission that notification meant that the date of actual receipt, that would introduce a very substantial degree of uncertainty as to the notification date into the section, which I am satisfied was not the legislative intent.

On whether there was good reason for the failure to bring the appeal in time:

He referred to the decision of Dove J in the Mayor and Burgesses of the London Borough of Tower Hamlets v Al Ahmed (2019) EWHC 749 (QB). He considered the fact that Ms Emambee suffers from dyslexia. This fact was agreed. However the judge took into account (i) at (17), the local authority’s decision letter which said that despite her dyslexia the Appellant was well versed in contacting the authority, (ii) at (20), the fact that the Appellant had been able to receive assistance from her family, (iii) at (20) that she had filed two witness statements in the appeal but did not explain why she took no action until 15 January 2019 and (iv) at (20) that her solicitors, once she had consulted them, could have sent the application notice by special delivery so that it would have been received the next day by the court i.e on 16 January 2019, instead of 18 January 2019.

Ms E appealed, on two grounds – that the judge below had erred in finding that the appeal notice had not been filed within 21 days of the appellant being notified of the review decision, and that the judge erred in exercising his discretion and failed to consider relevant matters when deciding there was no good reason for bringing the appeal out of time.

On the ‘within the 21 day’ ground, the High Court held:

The facts as found by the judge were that the appeal was not brought within 21 days of the Appellant being “notified of the decision” under Section 204(2). There were two limbs to his reasoning, namely:

a) notification of the decision meant the date of delivery to the aunt’s address, rather than the date of actual receipt.

b) he was not satisfied that the appeal was brought within 21 days of notification, given that it was posted on 21 December 2018.

As regards (a), Mr Choudhury confirmed, as appeared from the Grounds of Appeal, that there was no challenge to the Judge’s finding.

As regards (b), the decision letter was dated 21 December 2018, a Friday. That would leave as potential dates of delivery Saturday 22 December 2018, Monday 24 December 2018 and Thursday 27 December 2018 – before the cut-off date of 28 December 2018. The submission of the Appellant is that, given the judge’s remarks in his judgment at (10), he ought to have been satisfied that the letter was delivered on or after 28 December 2018 in view of the busy period. I do not accept this. It may have been delivered after 27 December 2018, it may not. The judge was entitled to make the finding he did. There is no inconsistency in his reasoning, as the Appellant submitted.

On the ‘good reason’ ground, Ms E’s dyslexia had not prevented her from submitting a review request within 4 days of receipt of the original decision, with assistance from her family.

Further, dyslexia was not the reason for the delay to 8 January, or that after 15 January, when the solicitors were consulted. As per Al Ahmed:

I will cite further paragraphs from Al Ahmed. These were clearly part of the Judge’s consideration:

“14…It is clear, therefore, that the fact that a party is not professionally represented could only play a very limited, if any, part in the assessment of whether or not there was good reason for a departure from the time limit in bringing the appeal in cases of this sort…
15. In my judgment the starting point for analysing whether or not in this case there was “good reason” for the Respondent’s delay is an understanding of what is required in order for an appeal to be brought before the Court. It is common ground between the parties that the requirements of the CPR are that what is required is an Appellant’s Notice accompanied by the appropriate fee or application for fee remission together with Grounds of Appeal. In my judgment there is force in the submission made by Mr Baumohl that these requirements are not especially sophisticated or taxing…. 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…”

Appeal dismissed

Comment

We expressed considerable doubts about the Al Ahmed decision in our report. It remains that case that it is hard to see a week’s delay due to obtaining legal assistance as not being good reason, given that the potential grounds in law for bringing a s.204 appeal are neither accessible nor comprehensible. (Although I would have thought the solicitors should have ensured filing with the court on the same or the very next day once notice and grounds were drafted, given the risks).

I have to say I think there is a profound air of unreality about decisions such as this, where appellants are expected to identify the issues of law for a s.204 appeal and draft grounds themselves in a situation where, as we all know, finding legal assistance is hard and getting harder all the time, let alone find that assistance within a very short period of time.

I am also unsure about a decision that relies on when a second class letter might possibly have arrived during the christmas period as being the date the appellant is notified of the review, while accepting that the reliance by Ms E on the aunt’s address does present problems for claiming 8 January as the date of notification. It is not impossible, indeed quite plausible, that the letter arrived on or after the relevant date of 28 December. The uncertainty in that regard might be a good reason for an extension even after a finding that on balance, the appeal was out of time.

 

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.

6 Comments

  1. Doesn’t the “should” in s.204(2) relate back to s.204(1)(b) (which does not seem to have been quoted in the judgment), i.e. appealing against the original decision in default of a review decision having been completed in time?

  2. This case? This was an appeal. My feeling is it would, on the facts, probably not succeed on a second appeal if one is sought, but we’ll see.

    Al Ahmad may succeed on the seeking legal assistance point.

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