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Better late than never: round two

The Court of Appeal has confirmed that where a local authority makes a homelessness review decision late, that decision is valid notwithstanding its lateness, writes Alexander Campbell.

In reaching that decision in Ngnoguem v Milton Keynes Council [2021] EWCA Civ 396, the Court of Appeal has confirmed observations which were made obiter dicta in a recent decision, Stanley v Welwyn Hatfield Borough Council [2020] EWCA Civ 1458.

You can read my article on Stanley v Welwyn Hatfield Borough Council on the Field Court website.

Importance of the decision for local authorities and homeless appellants

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The Court of Appeal’s decision will be welcomed by local authorities as bringing clarity to the question of what happens when a local authority makes a review decision out of time.

The court has made clear that where a local authority makes a homelessness review decision (whether in time or late), that must be the decision which is challenged in any appeal to the County Court. The court has rejected the idea that where a review decision is made late, the homeless applicant has a choice of whether to appeal that late review decision or the original homelessness decision.

The background

Ms Ngnoguem applied to Milton Keynes Council for assistance as a homeless person. The council made a decision under section 184 of the Housing Act 1996. Ms Ngnoguem requested a review of that decision, as was her right under section 202 of the Housing Act 1996.

Under regulation 9 of the Homelessness (Review Procedure etc.) Regulations 2018/223, a local authority must reach a homelessness review decision within 8 weeks (or such longer period as the appellant and the reviewer agree in writing).

Under section 204 of the Housing Act 1996, a person has a right to appeal a homelessness decision to the County Court. Specifically, section 204 says that they can appeal the review decision or, if none is made in time, they can appeal the original decision.

In Ms Ngnoguem’s case, the council did make a review decision, but they made it outside the 8 week timeframe prescribed by law.

Ms Ngnoguem issued appeals against both the review decision and the original decision, arguing that the review decision was invalid because it had been made outside the 8 week timescale.

The County Court concluded that the review decision was valid notwithstanding its lateness. Ms Ngnoguem appealed that decision to the Court of Appeal.

The Court of Appeal’s decision

In its earlier decision of Stanley v Welwyn Hatfield Borough Council, the Court of Appeal suggested that a late review decision is valid despite it being made late. However, that decision was not binding authority because the remarks made were obiter dicta and therefore not part of the reasoning for deciding the case.

In Ms Ngnoguem’s case, the Court of Appeal decided that a late review decision is still a valid decision. The Court of Appeal noted that section 204(1) of the Housing Act 1996 gives a homeless applicant a right to appeal to the County Court on any point of law “arising from the decision or, as the case may be, the original decision.” The Court of Appeal stated that the words “as the case may be” show that there is a binary choice between appealing one decision or the other; a person cannot appeal both or be given a choice to decide which to appeal if the review decision is made late.

The Court of Appeal was at pains to point out that if Ms Ngnoguem were correct that she could appeal both decisions (and therefore elect which one she wished to challenge), that would result in people “gaming the system”, meaning that they would be able to decide for tactical reasons whether to appeal a late review decision or whether their prospects of success would be better in challenging the original decision. The court stressed that such an outcome was no part of the purpose of the homelessness appeals regime.

Lessons from the judgment

If, by the time a late review decision is made, a homeless applicant has already issued an appeal against the original decision in the County Court, then that appeal will become academic and should be abandoned. The local authority may well be ordered to pay the wasted costs of that appeal due to their lateness having led to the appeal becoming academic.

Where local authorities are aware that their review decision is likely to be late, they would be well advised to make the homeless applicant and their solicitors aware that the review decision will be late and when it is expected. By doing so, the local authority will lessen any danger of the homeless applicant issuing an appeal against the original decision and the local authority having to pay the wasted costs of that abortive appeal.

Alexander Campbell is a barrister at Field Court Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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