By Catherine Rowlands
“Time is an illusion. Lunchtime doubly so” said Douglas Adams. In lockdown, time seems to be a meaningless construct. What day is it today? Who knows, who even cares? Well, you may well care if you are dealing with the review and appeal procedure under the Housing Act 1996. The time for carrying out a review (56 days, usually) whips past. It is possible to extend the time for a review by agreement in writing – but what happens if that agreement cannot be reached, and the time expires without reaching a decision? This never used to be an issue. Appellants, when I was young, waited for a decision on review and appealed against that, without complaining too much. However, that is no longer the case, and an appeal against the decision under section 184 is now frequently pursued.
It is not in doubt that such an appeal is possible: but what happens when the local authority then carries out the review and reaches a fresh decision under section 202 of the Act? Must the Court continue to entertain the appeal against the section 184 decision, potentially quashing it, and sending the local authority back to square 1 (with a fresh review and further appeal) or does it permit the local authority to rely on its decision, albeit out of time?
My view has always been that the normal principles of administrative law apply and that the fresh decision, taking into consideration the submissions made on review, simply replaces the original decision. That renders the appeal against the section 184 decision academic. That is particularly the case if the grounds of appeal are, for example, inadequate inquiries. The availability of a review process, in which the local authority will make the full range of factual investigations, is a full answer to the claim which is, as we know, one analogous to judicial review. The Court in any judicial review claim will take into consideration what other remedies are open to a Claimant and would tell them to go and engage in the review before coming to the Court to quash the decision.
The argument advanced is that a decision under section 202 can only lawfully be made within the timescales provided for by the statutory instruments. That time exceeded, the local authority is deprived of the power to make a decision, however thorough its investigations and however pellucid its reasoning.
On purely administrative law principles, this seems extreme. Unless there are clear words in a statute depriving the primary decision maker of the power to take decisions, the Courts will not normally consider that a decision taken out of time is a nullity. In Wang v Inland Revenue Commissioners  1 WLR 1286, for example, the Privy Council did not think that a decision of the Inland Revenue would be void if not taken in time. The taxpayer could not avoid paying tax just because the decision was taken outside the statutory time limits. There are other cases to the same effect.
The Court of Appeal in Stanley v Welwyn Hatfield BC  EWCA Civ 1458 was not convinced that a decision of the local authority in relation to their homeless powers is an exception to that rule. They dismissed an argument that a late decision was no decision.
On the facts, the Court was satisfied that there was an extension of time. The parties had agreed that the Appellant would have until 25 September 2019 to make submissions but they failed to agree when the local authority would make its decision. The Appellant duly made submissions, and then 6 days later (on 1 October 2019) argued that the local authority was out of time to reach a decision. The local authority notified her of their (adverse) decision the following day. The Appellant then lodged an appeal against the section 184 decision. The Court of Appeal’s primary finding was that the open-ended extension was a valid extension and that the Appellant’s appeal against the section 184 decision was therefore premature. They noted that it was clear that both parties wanted the review procedure to continue, and had agreed in writing that there would be an extension of the time for notification of the review decision for a short unspecified time after 26 September. She had asked for it “shortly”; she got it “shortly”.
The Court took a pragmatic view of negotiating extensions which recognises that sometimes, events are outside the control of both parties:
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.
The rest of the Court’s decision is effectively obiter, as on the facts the decision was in time. However, the Court went on to consider in full the effect of bringing two appeals.
McCombe LJ, giving the judgment of the Court said that it would be surprising if Parliament had intended that if a review decision was 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 again.
He reviewed some of the various decisions of County Court Judges dealing with the question.
Looking at the words of the Act, their Lordships found nothing in it which suggested that the obligation to review lapsed upon expiry of the time within which it was required to be provided. The Council still had to complete the review and notify the Appellant of it and there was nothing to suggest that it was “of no effect” as argued.
They also noted, as I have above, that in all the time since the Act came into force, bringing in the review procedure which was an innovation in 1996, it did not seem to have been said in any fully reported decision that a late review decision was no decision at all. There are very many reported cases which deal with decisions which were made out of time – including some of the ones that went up to the House of Lords or Supreme Court.
Once an authority failed to notify a review decision in time but produced a late review decision, the applicant had a choice of an appeal against the original decision or the review decision, but not both. They confirmed my view, and that of HHJ Clarke, that, as at the date of the review decision, the section 202 decision replaces 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.
It is therefore very clear, even if obiter, that a local authority is entitled to continue with a review, even if an appeal has been brought against the section 184 decision, and that any Appellant who has lodged such an appeal should withdraw it once the review decision is to hand.
There are cases where there is a legitimate interest in pursuing an appeal against the section 184 decision. They are few and far between. They include such cases as Robinson v Hammersmith & Fulham LBC  EWCA Civ 1122, where the delay in taking the decision meant that the Appellant had turned 18 and was no longer in priority need. There may also be a legitimate interest in pursuing an appeal on eligibility, as an Appellant may go in and out of eligibility. However, the general rule must be that once the review is done, the Court will concentrate on any criticisms of that.
On a practice note, too, it may be argued that bringing an appeal on the very day that the time for appealing expires, without warning the local authority, is in breach of the pre-action protocol and that the Appellant should not therefore have their costs of the appeal, even if they were technically entitled to appeal. As the advice has been in relation to going out during the pandemic, just because you are entitled to do something does not mean you should do it. Conversely, if there is a long lapse of time between the appeal being lodged, and the decision on review, the review should take account of any grounds of appeal lodged against the section 184 decision.
These issues are likely to be canvassed again in Ngnoguem v Milton Keynes Council, which had been listed to be heard with Stanley¸ and which remains listed for 10/11 March 2021, despite the Court’s endorsement of the judgment of HHJ Clarke in that matter. Andrew Lane represents Milton Keynes in that case.