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Mathew McDermott summarises the key principles in this important area of homelessness litigation.
Missed the deadline? There is a two-limb test
When bringing an appeal under s.204 Housing Act 1996 – usually against a s.202 ‘review decision’ – the prospective appellant has just 21 days from notification to file the appeal. If this deadline is missed, permission of the Court is needed to bring it out of time. In that scenario, the Court will have to consider s.204(2A)(b):
(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 a good reason for the applicant's failure to bring the appeal in time and for any delay in applying for permission. The words “…but only if it is satisfied…” should be noted, as should the fact that subsection (2A)(b) comprises two limbs and so forces the Court to ask two questions: (1) why outside of the 21-day deadline? (2) Why the delay in applying for permission to bring the appeal out of time?
What is a “good reason”?
It has been said that whether or not a reason (or a collection of them) is ‘good’ is a question of fact and a value judgment, and that ‘good reason’ is a phrase in common parlance that requires no elaboration (Barrett v Southwark London Borough Council  All ER (D) 57 (Jul)). Indeed, in Barrett synonyms like ‘valid’ were rejected as unhelpful; the statute says ‘good reason’ and that is all that needs to be considered.
The starting point will be that Parliament has purposely imposed what may be seen as a tight deadline, with harsh consequences if it is not met -- a point made in Peake v Hackney LBC  EWHC 2528 (QB).
From there, the evidence advanced by the applicant is critical and its importance cannot be overstated. This will, if adequate, allow the court to identify what the ‘reasons’ are (in respect of both limbs) and, thereafter, decide whether or not they are ‘good’.
Poorsalehy v Wandsworth LBC  EWHC 3687 (QB) is a good example of this. Here, an application to bring the appeal out of time failed despite the Court being satisfied that there was a good reason for not meeting the 21-day deadline. This was because there was no evidence in respect of the second ‘limb’ (why the delay in applying for permission to bring the appeal out of time?) and the Court was unwilling to infer, absent evidence, that the delay in seeking permission after the initial 21 days must have been the fault of solicitors. The Court said that on this important point there was an ‘evidential black hole’, illustrating just how vital the evidence is.
Merits of the underlying appeal are simply not relevant when considering whether or not ‘good reasons’ exist: Short v Birmingham City Council  EWHC 2112. They may, exceptionally, be relevant if the Court is considering whether or not to allow the application where it is of the view that the ‘good reason’ requirements are satisfied, but this is surely only going to apply in hopeless appeals.
One reason often put forward as ‘good’, as alluded to already, is an inability to find a suitable solicitor (or where the solicitor’s (in)competence was behind the failure to meet the deadline or the delay in seeking permission). Recently in Tower Hamlets LBC v Al Ahmed  EWHC 749 (QB), it was said that the fact that a party was not legally represented could only play a limited part, if any, in the assessment of whether there was good reason for a departure from the time limit (see also Nata Lee Ltd v Abid  EWCA Civ 1652). One argument advanced by Tower Hamlets, described as having force by Dove, J., was that the requirements of ‘filing an appeal’ are not especially onerous: filing an Appellant’s Notice with Grounds of Appeal and paying the fee (or applying for a fee remission). The Judge also said that it could not be ‘remotely decisive’ of the question(s) of ‘good reason’ that an applicant wanted to wait and benefit from the cost’s protection that those in receipt of Legal Aid enjoy.
From this one can start to pick out some key principles:
- The Court must be satisfied on the evidence. This should be contained in either the N161 or any supporting witness statement(s) (or both);
- Presuming the appeal is filed after the 21-day deadline, it is no good merely advancing evidence on why this was missed. The evidence must also address any subsequent delay in seeking permission to appeal out of time;
- The merits of the underlying appeal will be irrelevant if the Court thinks there is no ‘good reason’ (for either limb). If there is a good reason in respect of both limbs, it will presumably be only a hopeless appeal where the application is still dismissed;
- It would be wrong to say that being a litigant in person is irrelevant, but an applicant who makes a few mistakes that a competent lawyer may not have made would be very lucky indeed to get much understanding from a judge.
DISCLAIMER: This bulletin is no more than a summary of the topic or topics, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied or acted upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.