The Court of Appeal has considered the issue of “late” review decisions and section 204 (homelessness) appeals. Andy Lane and Riccardo Calzavara report on the outcome.
On 6 November 2020, in Stanley v Welwyn Hatfield Borough Council  EWCA Civ 1458, the Court of Appeal dismissed an appeal against the striking out of a county court appeal brought against a section 184 decision.
There have been a number of recent county court appeal judgments, such as Jobe v Lambeth LBC (7 December 2017) and Muloku v Newham LBC (April 2018), over the past three years which have concerned, in various guises, the question of what the status is of a review decision made after the time provided for in regulation 9(1) of the Homelessness (Review Procedure etc.) Regulations 2018/223 where no agreement has been reached between the parties to extend or further extend the period within which a review decision has to be notified.
In Stanley v Welwyn Hatfield Borough Council the applicant had, on 1 July 2019, been assessed as intentionally homeless and exercised her right to (section 202) review. An agreement to extend the 8 weeks within which the review decision here was required to be notified was reached, the new deadline being 20 September 2019. The review officer sought a further extension prior to this but got no response. On 16 September 2019 a regulation 7 “minded-to” letter was produced by the review officer and sought representations by 24 September 2019. Ms Stanley’s solicitors asked that they be given until the 25th and this was agreed. They in fact delivered them on the 26 September 2019 and a review decision was reached 6 days later, on 2 October 2019. Both the representations and the covering e-mail from Ms Stanley’s solicitors acknowledged that a review decision would follow (“we look forward to receiving the review decision shortly” and “I look forward to receiving the s202 decision in this matter in due course” respectively).
In fact before then, on 1 October, Ms Stanley’s solicitors had e-mailed the review officer and sought to claim that the representations were “without prejudice to the contention that the review decision is now out of time and would therefore be ineffective”. They also formally rejected the 11 September extension request.
An appeal was thereupon lodged against the section 184 decision on 4 October 2019 - section 204(1)(b), Housing Act 1996 - followed later that same month by a ‘protective’ appeal against the review decision – section 204(1)(a).
County Court appeals
The appeals were listed to be heard together, on 15 January 2020, and HHJ Bloom considered a “preliminary” ground in the review decision appeal first – to the effect that Ms Stanley wished to pursue the appeal against the section 184 decision and had not validated the review decision by reason of her appeal against it. The judge rejected this argument, finding that the parties had in fact agreed an extension and, in any event, by bringing the appeal against the review decision they had elected to validate the same. After further argument the substantive appeal was dismissed and the section 184 appeal struck out.
Ms Stanley appealed against the strike out of the section 184 appeal (but not against the dismissal of her section 202 appeal) and in essence argued that:
(a) There could be no agreed extension as allowed by regulation 9 because the parties had not agreed an actual date by which a review decision had to be notified.
(b) She was entitled to raise the issue of jurisdiction in the appeal against the review decision and as such the mere bringing of such an appeal could not be treated as validating the late decision.
The Court of Appeal
The appeal was heard before LJJ McCombe and Peter Jackson and Mrs Justice Roberts at a (remote) hearing on 13 October 2020. Lord Justice McCombe gives the lead judgment. On the first issue they agreed with HHJ Bloom that the parties had agreed an extension of time within which the review decision had to be notified – and a specific end date was not required - and as such, because there could only be one appeal, the correct one was against the review decision and not the original (section 184) decision.
“29…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.”
As for the second issue of “validation”, an obiter part of the judgment given the decision on the first issue, the court rejected the submission on behalf of Ms Stanley to the effect that a late decision was in fact no decision at all. Rather it found, at paragraph 51, that:
“…as at the date of the review decision, that decision replaced 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.”
Implications of the judgment
In the vast majority of cases parties can sensibly and clearly agree to extend the time for the notification of any review decision if and as required. In a typically pragmatic approach, the Court of Appeal has made clear that the parties can keep the process “open-ended”, and there may be very good reasons for doing so, such that an actual date is not required.
As for the “validation” issue the court preferred to frame its analysis by rejecting the notion that a late decision was ‘invalid’ in any sense or in need of validation. Further, if a review decision was to arrive after an appeal against the section 184 decision had been lodged the court must decide whether the appeal is academic or still of relevance. In that they followed the judgments and approach of Chadwick LJ in William v Wandsworth LBC; Bellamy v Hounslow LBC  H.L.R. 809 at  and of HHJ Melissa Clarke in Ngnoguem v Milton Keynes Council (2019). McCombe LJ explained:
“50…once the authority fails to notify a review decision in time, but produces a late review decision, the applicant has a choice of an appeal against the original decision or the review decision but not both. If he/she does appeal against both, as Judge Clarke said in Ngnoguem, the first appeal will remain an appeal before the County Court, but the review decision will not be a nullity; unless there is some distinct factor giving rise to a legitimate interest in pursuing a quashing of the first decision (Deugi), the court (as in Bellamy) will treat the composite case as an appeal against the review.”
As already noted, the decision on ‘validation’ was obiter and the court will be required to look again at the status of a review decision when made late when it considers Ngnoguem on a date still to be listed.
Finally, this case review would not be complete without acknowledging and thanking Angela Byrne and Mateusz Plaza of Welwyn Hatfield Borough Council’s Legal Services not only for their instructions but for the tremendous support, guidance and insight they provided throughout.