Appeals out of time under section 204 of the Housing Act 1996

19 May 2020


By Catherine Rowlands

Until 2002, any appeal under section 204 of the Housing Act 1996 had to be brought within 21 days of being notified of the decision. The Court had no power to extend that time. However, since then, by s.204(2A):

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…. (b) where permission is sought after that time, that there was good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.

There is the option to apply for an extension of time before the expiry of 21 days – I personally have never seen that used. The other point to note is that 21 days starts from receipt of the notice, not from the date it was sent. That may be easier to prove these days when everything is sent via email! Service on the solicitor, if one is acting, counts as service on the applicant.

In Short v Birmingham City Council [2005] HLR 6 Tugendhat J held:

The word ‘only’ provides a threshold, which an applicant must pass before consideration of the merits can arise, and the merits can only provide a ground for refusing permission in cases where there is a good reason for the delay. However plainly wrong the decision of a court or other body may be, there comes a time when an appeal is no longer available. And on the wording of the 1996 Act s.204(2A) it is not open to a judge to have regard to the criteria set out in CPR 3.9, or any criteria, other than those specified in terms in the section.

Ms Short was three and a half months out of time. Her appeal did not get permission to proceed. In Peake v Hackney LBC [2013] EWHC 2528 (QB) it was held that this approach was correct, and was also compatible with the European Convention on Human Rights Article 6. The Court also commented at 25 that the mere fact that the delay was short did not justify extending time.

What, then, is a good reason for failing to bring an appeal in time?

In Barrett v Southwark LBC [2008] EWHC 1658 (Comm) Sir Thomas Morison held that “good reason” meant some fact which, having regard to all the circumstances (including the Appellant’s state of health and the information he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the Appellant did.

Most recently, the Court of Appeal has considered this provision for what appears to be the first time. It should be noted that an appeal against a decision of a Circuit Judge to either allow or refuse permission to appeal out of time lies to the High Court, and not to the Court of Appeal as it does in relation to an appeal under section 204(1).

Mr Al-Ahmed lodged his appeal against the decision of Tower Hamlets that he was not in priority need some four weeks out of time. He had support from Crisis. He had instructed solicitors but there was a “miscommunication”. He then struggled to find alternative solicitors who would accept his case.

HHJ Hellman at Central London County Court granted him leave to appeal out of time. “Seeking and relying upon the guidance which he had obtained from Crisis“, he said, “it was reasonable for him to wait for Crisis to find him a legal representative because without a legal representative this appeal was never going to go anywhere.”

The Council’s appeal to Dove J was upheld. He noted that there are several cases in which the Courts have held that the fact that a party is not professionally represented is rarely going to be relevant, and considered that the lodging of an appellant’s notice is not particularly taxing.

Shelter were concerned about the effect of this judgment and intervened in the case. They submitted a witness statement setting out the difficulties that are often encountered by applicants in finding legal representation. They pointed to the fact that there is very often an overlap between the reasons for being homeless, and the ability to bring an appeal in time. They also pointed to the legal aid “deserts” across the country where there are no practitioners available to help.

The Court of Appeal overturned the decision of Dove J, criticising him for importing too restrictive a test into his consideration of what should be a broad-ranging view. The Court distinguished the cases on the availability of legal advice on the basis of Shelter’s evidence as to the legal aid deserts. They emphasised that all circumstances are to be taken into account, with no presumptions to be applied. Because the test of “good reason” is a gateway through which one must pass before the Court can consider the merits of your appeal, the test must be applied in such a way as to avoid unjust outcomes. The difficulty in obtaining legal advice was a crucial part of this picture.

In no way, however, the Court added, does this gives carte blanche to delay. The Court will need to ensure that the applicant did make efforts to find legal advice, and will also take all other considerations into the balance. (It may be recalled that Ms Short, in the first case mentioned above, also complained about not being able to get a solicitor to help her, and her appeal was not permitted to proceed.)

On the facts of this case, Mr Al-Ahmed’s appeal was allowed and his section 204 given permission to proceed out of time.

At the moment, local authorities are facing the prospect of a huge wave of new applications as coronavirus hits the country. There will undoubtedly be difficulties for applicants finding legal advice as the country goes into lockdown. And no one knows how this will develop – will courts still be open for appeals to be lodged? It seems clear that the question of appeals out of time will be one that will be of acute relevance in the days and weeks to come. The Courts will have to balance the competing interests of the applicant and the local authority and the burdens on both sides.