Carefully worded

The Court of Appeal recently dismissed an appeal to have a Section 202 homelessness decision treated as void. The ruling is an important one for local authorities, says Donald Broatch.

In Dharmaraj v London Borough of Hounslow [2011] EWCA Civ 313, the Appellant had sought, unsuccessfully in the County Court, to have a Section 202 decision treated as void, on the basis that his right of appeal under Section 204, and in particular the time limit for it, had been erroneously stated. The Court of Appeal held that the notification to the applicant had been correct, but that in any event, a minor error in expressing the time limit did not render the review decision void.

Background to the Case

The Appellant (“A”) applied to the Authority as a homeless applicant under Part VII of the Housing Act 1996 (“the Act”). The Authority found him to be intentionally homeless on the basis that he had been evicted for arrears of rent. A’s principal argument was that the landlord had only evicted him because he had repeated made complaints about the condition of the property.

On review, the reviewing officer rejected A’s case, and upheld the finding of intentional homelessness. However, the information at the foot of the letter informing A of his right of appeal under Section 204 of the Act stated that the time limit of 21 days ran from the date of the letter, and not the date when A was notified of the decision.

A’s appeal was rejected by the County Court. In the Court of Appeal it was argued on A’s behalf that the review decision was defective, because it did not comply with Section 203 (5) in that it misstated the starting point of the 21 days. It followed, by virtue of Sec 203(6), that the review decision was to be treated as not having been made at all. Accordingly, A could have appealed the original Section 184 decision under Section 204(1) (b).

One notable feature of the case was that, as it happened, the date of letter was the very date upon which it had been faxed to A’s solicitors during normal working hours. A argued that service of the decision on the solicitors was inadequate; it had to be served on A personally. It was further argued that, in any event, simply because of the way in which the notice had been worded, it was defective. Accordingly, the review decision was null and void, and should be treated as not having been made at all.

The Authority submitted that the wording made no difference in the present case, as the date of the decision and the date of notification were the same. Where a Part VII Applicant instructs a solicitor, sending the decision to the solicitor amounts to good compliance with the statute. In any event, it was not the intention of Parliament that a decision letter containing, at worst, a minor irregularity about the right of appeal should thereby be rendered null and void. The Authority was in substantial compliance with its statutory obligations.

The Court of Appeal (principal judgment by Toulson LJ) rejected all A’s points. In summary:

• Where an Applicant had a solicitor acting for him sending the decision and notice to the solicitor was good compliance with the Authority’s statutory obligations.
• In the present case the date of the decision and the date of the notification were the same. The notification had thus, in fact, been correct.
• Even if the notification had, in fact, been wrong because A or his solicitors received the letter a day later, it would make no difference. It would certainly not render the decision void; at most it would simply have the consequence that A’s time for appealing of 21-days did not start to run until notification.
• In accordance with the decision of the House of Lords in R v Soneji [2005] [2006] 1 AC 340, the Court should look to the Parliamentary intention behind the provisions. It was certainly not that intention that a decision letter received by an Applicant, and appealed by him within time, should be treated as a nullity.

In a concurring judgment the Master of the Rolls went further, and indicated that even if the indication as to when the 21 days started was out “by a couple of days,” that would not render the decision a nullity. It would simply result in an extension of time.

A subsidiary point about whether the reviewing officer had adequately addressed the “reasonableness to occupy” of the premises was also rejected.

Consequences of the decision

The decision is of importance both to local authorities and to those representing applicants. Where representations are submitted by solicitors, an applicant cannot complain if the decision letter is sent to them rather than to him directly. With communication by fax and e-mail becoming the norm for solicitors, decisions are often likely to be communicated on the day they are made. The Court recognised the absurdity of an applicant receiving his decision letter, appealing in time, but nonetheless seeking to aver that the decision was actually null and void. It would only be in an extreme circumstance, such as an authority failing to advise an applicant of his right of appeal at all, or failing to tell him of the existence of any time limit, could it be argued that the decision should be treated as not having been given.

In order to avoid such technical arguments being raised in future, authorities would be well advised to use a form of words indicating that the 21 days runs from the date of notification, even if that is the same as the date of the decision.  However this decision does give authorities a measure of protection where they use of the wrong form of words.

Donald Broatch is a barrister at Five Paper (www.fivepaper.com) and represented Hounslow Council in this case.