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Of late reviews and multiple appeals


Stanley v Welwyn Hatfield Borough Council (2020) EWCA Civ 1458

A second appeal on the vexed issue of s.204 appeals of late or ‘out of time’ s.202 reviews. We’ve seen this issue come up earlier this year (and indeed before) but now the Court of Appeal has had a go at it.

Ms S had applied to Welwyn as homeless. A s.202 review was requested of the negative s.184 decision that followed. The review decision was due by 13 September 2019. This was extended by agreement with Ms S solicitors to 20 Sept. On 11 Sept, the review officer requested a further extension to the end of November. A ‘minded to’ letter was sent on 16 Sept with a date for further representations of 24 Sept. Ms S’ solicitors requested an extension to 25 Sept for the response to the ‘minded to’ letter, which was agreed. On 26 Sept, the solicitors sent representations, saying “We look forward to receiving the review decision shortly”. Then on 1 Oct, the solicitors wrote:

“I must hasten to note that our response to the minded to letter is without prejudice to the contention that the review decision is now out of time and would therefore be ineffective. Our client has instructed us that she is not in agreement to your request for an extension as proposed in your email dated 11 September 2019.
Therefore, we will now be taking steps to issue a s204 appeal against the initial s184 decision.”

The negative review decision was sent on 2 October. Ms S issued a s.204 appeal against the original s.184 decision on 4 October, and then an appeal against the review decision on 24 October. This second appeal stated:

The Appeal is without prejudice to the appellant’s appeal against the section 184 decision which she wants to pursue instead…

The appellant has not validated the review. This appeal is without prejudice to her contention that the review was out of time, and should not be considered as a validation of the out of time review. The appellant never agreed to the review being concluded out of time. She has appealed the section 184 decision, which she had the right to do under section 204(1)(b) because the review was out of time. She wishes to pursue that appeal instead.”

At first instance, the Circuit Judge (HHJ Bloom), struck out the appeal against the s.184 notice, on the basis that an extension of time had been agreed, and/or that the appellant had chosen to validate the review by issuing the appeal (as per Jobe and Muloko). The Circuit Judge went on to dismiss the appeal against the s.202 review.

Ms S appealed, arguing firstly that there was no valid extension of time, and secondly that an out of time review decision was a nullity, such that Ms S could not have elected to validate it (the waiver/election issue).

On the extension of time, Ms S argued that any ‘general’ rather than specific extension of time did not meet the requirements of regulation 9 of The Homelessness (Review Procedure etc.) Regulations 2018 which provides:

(1) Notice of the decision on a review under section 203(3) must be given to A [the applicant] …
(b) Where the original decision falls within –
(i) section 202(1) … (b) …
…eight weeks beginning with the day on which the request for the review is made, …
… or within such longer period as A and the reviewer may agree in writing.”

The Court of Appeal did not accept this. The Judge at first instance was correct that the emails had to be read as an agreement to give a longer, if unspecified, period for the review. A general or unspecified period was not ruled out by the regulations:

Given the machinery put in place by the Act, I cannot see that parties are to be precluded from agreeing a general extension of time for notification of a review decision. This is still an extension for an agreed period, even if its precise end is not immediately known. This may well be a sensible course for parties to take in a number of situations, e.g. where negotiations are being conducted between them or information is being collected from outside sources, such as medical opinions on suitability of particular accommodation. I see no reason why, in such circumstances, the Minister should be saying in the regulations that an applicant could not give the authority an extension until it was put upon notice that further time will not be allowed. A sensible applicant in such a situation, after an expiry of time, might say that he/she now wanted the decision within (say) 7 days. An unreasonable applicant might say, “I’ve lost patience; I want your decision today”. In either case, either the review would be forthcoming as demanded or not. If not, the applicant could initiate an appeal to the County Court because he/she had not received a decision. Nothing would be lost.

Accordingly, there had been a valid extension of time.

This was sufficient to dismiss the appeal. However, as full argument had been heard on the waiver issues, the Court went on to consider it, albeit this is strictly obiter.

The Court of Appeal considered the various s.204 appeal cases reported in Legal Action, but while these were helpful in delineating the issues arising, none of them provided the complete answer.

The Court of Appeal took the view that a late s.202 review decision is not thereby a nullity.

The Act requires that, once a request for review has been made, the authority shall review its decision: s. 202(4) and once made it must be notified to the applicant: s. 203(3). Section 203(4) envisages that if the earlier decision is confirmed against the applicant’s interest, the reasons for it must be given. Nothing is said in the Act to suggest that the obligation to review lapses upon expiry of the time, under the regulations, within which it is required to be provided. If it is late, the applicant has the remedy of appealing the original decision, instead of a cumbersome alternative of applying to the High Court on judicial review for an order requiring the decision to be made and notified.

It would be surprising if Parliament had intended that, in a case such as the present, if a review decision is made, the parties and the court should ignore it, and then go through an argument as to the adequacy of the original decision and potentially start the whole procedure all over again. This seems a strange result in a case in which the review decision is in the applicant’s hands even before he/she begins an appeal against the original decision. In all the time since the passing of the Act, it does not seem to have been said, in any fully reported decision, that a late review decision is no decision at all – which is also surprising, if that were so.

A late review decision is still a valid decision and supplants the s.184 decision.

As I have said, the Act envisages that a review once requested must be carried out and the decision must be notified to the applicant. There is nothing to suggest that a review carried out pursuant to this obligation is of no effect. Nor is there anything in Bellamy’s case (Bellamy v Hounslow LBC (2006) EWCA Civ 535;) (a case where there were appeals against an original decision of 4 August 2004 and against a decision on review out of time on 15 November 2004) to suggest that the review decision under appeal was a nullity, as is suggested by the decisions in Muloko and Khamassi. Therefore, I do not see the bringing of the appeal against the s.202 decision in this case as “validating” an otherwise invalid decision.

In the passage quoted above from the judgment of Chadwick LJ in Bellamy, the learned Lord Justice expressed the view that the County Court judge had been correct to treat the appeal before him as being against the later review decision of 15 November 2004; it was a route to dealing with the case on its merits and on an up-to-date basis. This and the wording of s.204, to which Chadwick LJ and Judge Monty QC in Castro referred, indicate that once the authority fails to notify a review decision in time, but produces a late review decision, the applicant has a choice of an appeal against the original decision or the review decision but not both. If he/she does appeal against both, as Judge Clarke said in Ngnoguem, the first appeal will remain an appeal before the County Court, but the review decision will not be a nullity; unless there is some distinct factor giving rise to a legitimate interest in pursuing a quashing of the first decision (Deugi), the court (as in Bellamy) will treat the composite case as an appeal against the review.

I also think that Judge Clarke was correct to say in Ngnoguem that, as at the date of the review decision, that decision replaced the original decision of the authority and there would be no legitimate interest in doing other than addressing such legal challenge as there might be to what was decided on the review.


If we take the technically obiter comments on late reviews as precedent, the position would seem to be that where a review is out of time (with no agreed extension), the applicant can bring a s.204 appeal against the original s.184 decision. But, if a review decision is subsequently provided, even after that appeal has been lodged, it is a valid decision and will require a second s.204 appeal (albeit that the appeals would be treated as a composite case, save in circumstances where there is a legitimate interest in pursuing a quashing of the first decision).

This issue may return in the adjourned appeal in Ngnoguem v Milton Keynes Council, although the Court of Appeal offer some fairly definite comments on the first instance judgment in that case here.



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.


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