Ngnoguem v Milton Keynes Council (2021) EWCA Civ 396
We’ve seen this prefigured in Stanley v Welwyn Hatfield Borough Council (2020) EWCA Civ 1458 (our note), but the relevant parts of that judgment on late reviews were strictly obiter, as the court had found that there was an agreement to extend time. Now the Court of Appeal has confirmed the position.
Ms N had applied to Milton Keynes as homeless. Shen then sought a review of the s.184 decision. The review was four days late. Ms N brought a s.204 appeal of the s.184 decision and then, and appeal of the s.202 review decision, stating “this appeal is brought without prejudice to the Appellant’s contention that the review was completed out of time and therefore of no effect.”
At first instance, the Circuit Judge dismissed the appeal against the s.184 decision, on the basis that the review decision was valid, and held against Ms N on the appeal of the review decision. Ms N appealed the dismissal of the appeal of the s.184 decision.
The Court of Appeal dismissed the appeal, holding that:
i) Where an applicant is dissatisfied with a s. 184 Decision, their primary remedy is to request a Review Decision;
ii) If such a request is duly made, the authority is under a mandatory obligation to review its s. 184 Decision and to notify the applicant of its decision in the light of that Review;
iii) Where the authority provides a Review Decision, it becomes the authority’s sole effective and operative decision whether the Review Decision is provided within time (as specified in the regulations or as extended by agreement in writing) or is provided late;
iv) Where the applicant has requested a review and is not notified of the Review Decision within time then, provided a (late) Review Decision has not been notified before the appeal is brought, the applicant has 21 days from the date on which it should have been notified to bring an appeal to the County Court on any point of law arising from the original s. 184 Decision. If the authority provides a Review Decision after such an appeal to the County Court has been commenced, it will render the appeal academic save in exceptional circumstances;
v) Where the applicant has requested a review and is not notified of the Review Decision within time but a (late) Review Decision has been provided before the appeal is brought, the applicant’s remedy is to appeal to the County Court on any point of law arising from the Review Decision (if so advised);
vi) An appeal to the County Court against the s. 184 Decision should not be commenced after notification of a Review Decision, whether that notification was in time or late.
The Court of Appeal also note that there would be issues of costs on an appeal of the s.184 decision that was subsequently rendered academic by a late review:
The proceedings should normally be compromised, stayed or dismissed on terms as appropriate. The position would be similar to that which obtains where a public body withdraws a decision in response to Judicial Review proceedings. Questions of costs sometimes loom large, but a principled approach will readily identify who is responsible for the (properly) issued proceedings having become academic.
Pleasing to see the way I approach s202 decisions being condoned by the Court of Appeal: there’s no point wasting the Court’s time appealing a non-decision except in egregious cases. Instead you should threaten to appeal in a late decision situation if there is no s203/further decision within 7 days: practitioners need to stop treating local authorities like a cash point in this scenario and behave with integrity – we all often need more time and clients don’t gain much from their lawyers issuing 2 appeals.