Al Ahmed v London Borough of Tower Hamlets (2020) EWCA Civ 51
We saw the High Court in this case take an incredibly strict approach to homelessness section 204 appeal timescales (our report), deciding that seeking legal aid representation could not be a good reason for filing an appeal out of time because, well, the substance of any appeal should be obvious to an unrepresented homeless applicant. We expressed considerable doubts about the realism of this decision at the time. Now, as it turns out, the Court of Appeal has had similar doubts.
S.204(2) Housing Act 1996 provides that an appeal to the County Court must be brought within 21 days of being notified of a review decision. But s.204(2A) provides for out of time appeals:
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 question therefore is how to approach ‘good reason’.
Before getting on to the judgment, we have to note that there was a substantial intervention by Shelter in the Court of Appeal, which clearly had a large impact on the judgment in terms of the evidence provided and the significance of it. The evidence covered
the practical difficulties involved in a homeless applicant issuing a notice of appeal in person; the wider difficulties and circumstances that homeless persons often have to contend with; and the difficulties that homeless applicants face in finding solicitors who are able to advise and represent them in homeless appeals, and the lack of capacity in the housing advice sector. It also sets out the limited results of an exercise under the Freedom of Information Act 2000 seeking to establish the advantages to homeless applicants of being represented when bringing a s.204 appeal, and the impacts on court time and costs.
The details set out at 19-21 of the judgment are well worth reading.
But, on the details of an application for an ‘out of time’ appeal, s.204 provides a statutory time limit and a statutory ‘good reason’ exception for late appeals. This should not be confused with the Denton principles for CPR 3.1(2)(a) extension of time, as had happened in the High Court.
First, s.204(2A) lays down a statutory test, “good reason”, the content and effect of which cannot have been changed by the strict approach adopted in recent years by the courts towards failures to comply with the CPR or with the corresponding rules of the Upper Tribunal. Although appeals under s.204 are brought in accordance with the procedural rules in the CPR, those rules do not define the test of good reason; and neither changes to the rules themselves nor changes in the court’s approach towards failure to comply with them can alter the statutory test. I have referred above to the consistent approach taken previously by the courts towards that statutory test, to the effect that all the circumstances are to be taken into account without applying any particular presumptions. That approach should not be qualified by importing the Mitchell/Denton principles into it.
‘Good reason’ is only one factor in Denton cases, whereas for s.204(2A) it is the sole criteria. And then:
The context of s.204(2A) is, moreover, materially different from that under consideration in the cases where it has been held to be reasonable as a general rule to expect litigants in person to comply with relevant rules of court. I have summarised the evidence placed before this court by Shelter. It presents a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 of the 1996 Act without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector. Everything will of course depend on the circumstances of the individual case, but it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.
In the present case
At (14)-(15) of his judgment, Judge Hellman accepted in terms that the appellant could have filed a notice of appeal in time. His point, however, was that Mr Al Ahmed “probably had no idea what it needed to say” and reasonably sought assistance from Crisis which took the view, also reasonably, that he needed legal representation. Judge Hellman clearly did not accept that Mr Al Ahmed was able to identify without legal representation even the substance of the two grounds of appeal that were advanced once he did have legal representation. He pointed to the contrast between what Mr Al Ahmed wrote in his lengthy emails to the Council (which got nowhere near to identifying the relevant points of law) and what was set out succinctly in the grounds of appeal actually filed. Thus, the judge was looking, perfectly reasonably, at the practicalities of the matter. In his view there was no useful purpose in filing a notice of appeal until Mr Al Ahmed had legal representation and knew what, if any, points of law could be advanced: “without a legal representative this appeal was never going to go anywhere”. There was no error of law in any of this, and it was based on factual findings for which there was an adequate evidential foundation in the material to which the judge referred.
At (17) of his judgment, Dove J criticises Judge Hellman’s findings as to the extent of Mr Al Ahmed’s reliance on Crisis and states that Mr Al Ahmed could not rely on Crisis to draft and issue the appeal for him. All this leads back in to Dove J’s view that it was for Mr Al Ahmed to ensure compliance with the time limit and that it was within his capabilities to do what was necessary to bring the appeal in time. Again, however, Judge Hellman’s findings as to the extent and reasonableness of Mr Al Ahmed’s reliance on Crisis were in my view properly open to him on the evidence; and the question whether Mr Al Ahmed could have brought a meaningful appeal in time has been sufficiently covered above.
Whilst I have concentrated on the specific circumstances of Mr Al Ahmed’s case and on Judge Hellman’s findings in that regard, I think it right to add that if and in so far as Dove J was basing himself on a wider proposition that homelessness applicants are able as a general rule to draft a notice of appeal and adequate grounds of appeal without legal representation (cf. “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”, at (15) of his judgment), such a proposition is in my judgment mistaken. It is not supported by the evidence before Judge Hellman and it is contradicted by the evidence placed before this court by Shelter.
Now none of this means that ‘seeking legal representation’ automatically is a good reason for granting permission to appeal out of time:
In no way does that view give carte blanche to delay. The basic rule remains the 21 day time limit, with which Parliament must have intended applicants in general to comply. Compliance may present little difficulty in practice if an applicant already has a solicitor acting for him in relation to the review (as might have been the position in Mr Al Ahmed’s case had it not been for a breakdown in the relationship between him and his solicitor). Where an applicant relies on the fact that he was unrepresented and was seeking legal aid as a reason for non-compliance, the circumstances will need to be examined with care, including scrutiny of the diligence with which he acted in seeking legal aid. And even if the court is satisfied as to good reason, that simply opens up a discretion to give permission for an appeal to be brought out of time. At that stage the court is able to take into account all other relevant considerations, including the position of the local authority, in deciding how to exercise its discretion.
But it does mean that the wholly draconian approach set in the High Court decision, with the frankly utterly unrealistic expectation that a homeless applicant in person will be able to identify errors in law in a s.202 review decision and condense them for grounds of appeal, is no more – it was mistaken.
It is also good to see the Court of Appeal taking seriously the meaning and impact of the post LASPO decline in provision of legal aid housing law advice and representation.