Idara v Southwark LBC (2024) EWHC (KB) (unreported as yet)

Thanks to 4-5 Grays Inn Square for their note of the case.

This was an appeal to the High Court of the County Court’s refusal to give permission for an out of time section 204 appeal. Southwark had found on review that a property offered to Ms Idara was suitable and so her refusal of the property discharged Southwark’s housing duty.

The 21 day period to file an appeal of the review decision ended on 14 April 2023. Ms Idara had been to Citizens Advice and given a list of 15 solicitors. She contacted them all but none could help within the deadline. On 20 April 2023, she instructed solicitors, and advice and grounds were prepared for 21 April.

However, the paralegal dealing with the matter went on leave until 3 May. Their colleague left with the file did not file the appeal. On the paralegal’s return the appeal was lodged with an application for permission to appeal out of time.

That permission was refused by the Circuit Judge, who held that while there was a good reason why the ppeal was not lodged by 14 April in Ms I’s inability to find a solicitor, there was no good reason for the delay from 20 April to 3 May.

Ms I appealed.

Section 204(2A) Housing Act 1996 provides:

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.

On (2A)(b), the relevant one here, Ms I argued that the subsection required that she only had to show a good reason why the appeal was not brought within 21 days, and why the application for permission was not made within that time. Since she had a good reason for the former, that was also the good reason for the latter. The court could consider the delay after the 21 days when exercising its discretion whether or not to grant permission out of time.

The High Court disagreed, holding that what had to be shown was both a good reason for not filing the appeal within 21 days, and a good reason for the whole period of delay up to the application for permission to file out of time.

Here, Ms I had a good reason for not filing the appeal within the 21 days, but there was no good reason for the later delay up to 3 May. Accordingly, this did not meet the threshold requirements to access the Court’s discretion.

If the s.204(2A) threshold had been met, the second period of delay would also be a factor for the court in considering the exercise of its discretion.

Comment

A clear reason, if a further one were needed, to ensure that an application for permission to file and appeal out of time is made at the earliest possible opportunity (indeed, preferably within the original 21 day appeal period, if the notice & grounds are going to be filed even a little bit after that period).

While a prospective appellant not bing able to get a solicitor can be a good reason, if evidenced, that ends as soon as a solicitor is instructed and any further delay is quite possibly fatal for the application.