Take notice

Georgina Redsell examines recent Court of Appeal and High Court guidance on the notification requirements in section 202 reviews.

There have been two recent decisions which have concluded that for the purposes of calculating the 21 day time period within which a person can bring an appeal pursuant to section 204 of the Housing Act 1996 (“the Act”) notification of the review decision letter pursuant to section 202 of the Act to the solicitors acting for the appellant is sufficient. There is no requirement that the decision be notified to the appellant himself in circumstances where he has solicitors acting for him.

Section 204(2) of the Act provides: “An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.” Subsection (2A) provides:

“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 –

(a)…

(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.”

Sharpe Pritchard was involved in an appeal to the High Court before Mr Justice Supperstone in the case of Drajic v the London Borough of Wandsworth. The relevant facts of the case were that the appellant had solicitors acting for him during the review (“Solicitor A”), however, due to funding restrictions those solicitors could not continue to act for the appellant during the appeal and so suggested another firm who could act for the appellant at that stage (“Solicitor B”). Solicitor A explained to the appellant the section 204 requirements and stated that the deadline for bringing an appeal was 13 April 2010. On the same day Solicitor A contacted the Solicitors B and volunteered to fax a copy of the decision letter to them. There appears to have then been a breakdown of communication with the result that an Appellant’s Notice was not issued until 19 April 2010.

The appeal was dismissed by the County Court on the basis that the appeal had been brought outside of the 21 day limit and there was no good reason for allowing the appeal to be brought out of time. The appellant appealed on the basis that the first instance Judge was wrong to conclude that the 21 day period runs from the date on which the appellant’s representatives were notified of the decision rather than the appellant himself.

Among other things on behalf of the appellant it was argued that the Judge ignored the word “his” in section 204(2) which clearly means that time runs from when the appellant is notified. If notification to his representatives was sufficient then there was no need for the inclusion of this word in the sub-section. It was included to make it clear that notification must be to him and no-one else. The appellant argued that the whole thrust of Part VII of the Act is that notification must be given to the appellant himself and there is no mention of agency. Good service is notification to the appellant and the Judge was wrong to find otherwise.

On behalf of the respondent local authority it was argued that the normal rules of agency apply and the Court was referred to the Court of Appeal case of R v Chief Immigration Officer Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141 where (in an immigration context) Lord Denning held that notice was sufficient if it was given to the person’s agent where he is authorised to receive it on the person’s behalf or may, from his position, be presumed to have such authority. This decision was also considered in Tkachuk v Secretary of State for Work and Pensions [2007] EWCA Civ 515 where it was found that a solicitor could advise the client and assist with the completion of a claim for income support even though the client would have to sign the claim personally. Therefore that would be sufficient to find that the solicitor was able not only to receive the notice but to deal with it.

Applying those principles the Judge held that notice is sufficient if given to the appellant or an agent (provided that the agent is authorised on his behalf or is in a position so that it may be presumed that he is so authorised). On the facts of this case the appellant’s solicitors were authorised to receive the review decision and deal with it. “His” being notified in section 204(2) is no different in effect than the form of words considered in Begum: “the person to whom it relates”. There was therefore nothing in the Act which displaced this general agency rule.

This decision was considered a few days later by the Court of Appeal as one of the issues in Dharmaraj v the London Borough of Hounslow [2011] EWCA Civ 313. Lord Justice Toulson said that he agreed with the conclusion of Mr Justice Supperstone that notice is sufficient to comply with the Act if given to the applicant himself or to his agent, provided that the agent is authorised to receive it on his behalf or may be presumed to have such authority. The argument that it was necessary in the interests of justice to adopt a stricter approach because there is a risk that the applicant might not receive information about the decision from his solicitors for some time was also rejected. The court has a discretion to extend the period of time for appealing and, if there were a case where an applicant claimed not to have received notice and to be prejudiced as a result, he would be able to raise that matter before the court.

Conclusion

These decisions will be of importance to local authorities and solicitors representing applicants during the review stage. There is no need for a local authority to notify the applicant direct of the section 202 decision where he or she has solicitors acting for him.

Georgina Redsell is a solicitor at Sharpe Pritchard. She can be contacted on 020 7405 4600 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..