When is a reason a good reason – s.204(2A) Housing Act 1996
In two recent cases the High Court has considered whether there were “good reasons” to extend the 21-day time limit to appeal under s.204 Housing Act 1996: Peake v London Borough of Hackney [2013] EWHC 2528 (QB) and Poorsalehy v London Borough of Wandsworth [2013] EWHC 3687 (QB).
The High Court was concerned in both cases with s.204(2A)(b) which provides that, where permission to bring an appeal out of time is sought after the end of the 21-day period, the court may give permission only if it is satisfied “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”.
In Peake the Council had found Miss Peake to be intentionally homeless and had notified her of a negative review decision on 4th December 2012. She appealed to the County Court on 15th January 2013 and made an application for permission to bring the appeal out of time.
Miss Peake gave a number of reasons for the delay: she had been searching for private sector accommodation, attending a compulsory week-long back-to-work scheme, looking after her three children as a single mother, and the relevant period had run over the Christmas holidays.
The judge made an allowance for the difficulties in lodging an appeal over the Christmas period and found that in broad terms the appeal was two weeks late. However, the judge considered that the other reasons were not “good reasons” within the meaning of s.204(2A).
On appeal to the High Court, the first ground of appeal was that the judge should have found that the test under s.204(2A) was a subjective test. In dismissing this ground of appeal, Lewis J. considered that the objective/subjective distinction was not helpful in determining an application under s.204(2A) [16]. Approving Barrett v London Borough of Southwark [2008] EWHC 1568 (Comm), Lewis J. held that whether a reason or conjunction of reasons amounts to a good reason is a question of fact and value judgment [17]. While the circumstances of the applicant may be relevant, there must be a link between the circumstances relied upon and the failure to bring the appeal in time [18]. If an applicant choses to resolve the problem by other means or if there are other demands upon their time and they do not prioritise the appeal, this will not amount to a good reason for the purposes of s.204(2A) [23]. Further, the fact that the delay was for a short period does not justify granting permission to appeal out of time [25].
The second ground of appeal – that the judge was required to consider the merits of the appeal – was also dismissed. Lewis J. held that the merits of the appeal are not of themselves relevant to whether or not a “good reason” exists for the purposes of s.204(2A), although there may conceivably be cases where factors relevant to the merits are also relevant to the reasons for the delay [30]. Parliament is entitled to fix a time limit for bringing an appeal, and the fact that the criteria for extending the time limit are linked to the reason for the delay rather than other matters such as the potential merits does not breach article 6 ECHR [31].
In Poorsalehy the 21-day time limit for appealing expired on 30th March 2012. On that day Mr Poorsalehy instructed solicitors and a notice of appeal was filed out of time on the next working day, 2nd April 2012. However, a formal application for an extension of time was not made until 27th July 2012. This application was supported by a witness statement from Mr Poorsalehy which dealt with the delay in lodging the appeal, but not the delay in making the application for an extension of time.
It was common ground between the parties that under s.204(2A)(b) there had to be a good reason for both (1) the failure to bring the appeal in time and (2) for any delay in applying for permission to appeal out of time. The judge found that (1) was satisfied but not (2) and therefore struck out the notice of appeal.
On appeal to the High Court, the primary ground of appeal was that the judge’s approach was flawed in that it focused on the solicitor’s default not Mr Poorsalehy’s; on the available evidence, Mr Poorsalehy personally could not have been responsible for the delay.
In dismissing the appeal, Jay J. held that there is no general rule of law in the context of statutory appeals which fixes a party with the procedural errors of his representative [15], [20]. However, it would be going too far to say that there is a general rule to the effect that a party will always be able to shelter behind the mistakes of his legal advisors [16], [20]. Good reason “depends on all the circumstances of the case as known to the court by direct and inferential evidence; and, thereafter, secondary evaluative conclusions derived from that evidence. It cannot depend on speculative inferences” [16]. In this case, the judge had not been bound to draw the inference from all the available evidence that Mr Poorsalehy personally could not have been at fault [29].
In both Peake and Poorsalehy the High Court emphasised that whether there is a good reason for delay is a matter of “fact and value judgment”. This will depend on all available evidence and, as is clear from Poorsalehy, a judge is not bound to draw inferences where there is an evidential lacuna. Overall it seems that the courts are willing to take what, as Lewis J. recognised in Peake at [23], may seem a “harsh” approach in enforcing a strict time limit laid down by Parliament.
Rory Clarke appeared for the local authority in Peake and Wayne Beglan appeared for the local authority in Poorsalehy.
