Appellant loses High Court challenge over ruling that she was out of time to bring homelessness appeal

A woman who travelled to Mauritius to see her father after he had suffered a stroke has lost her appeal against an order by a County Court judge refusing her application for permission to bring an appeal out of time over a council’s decision that it had discharged its housing duty.

The appeal in Emambee v London Borough of Islington [2019] EWHC 2835 (QB) was brought by a 37-year-old mother of three against an order of Judge Hellman sitting in the Central London County Court.

On 26 April 2019 Judge Hellman made an order refusing the appellant's application for permission to bring an appeal out of time pursuant to section 204(2A) of the Housing Act 1996 and therefore dismissing her appeal.

The appellant had on 28 June 2018 completed a Homeless Application form having been served by her aunt with notice to leave her aunt's house in Finsbury Park. On the day she completed her application form she was provided with temporary accommodation in Enfield ("the property").

On 4 July 2018 Islington Council sent a section 184 decision accepting a full housing duty.

On 28 November 2018 the appellant travelled to Mauritius. Her father had suffered a stroke and she went out to see him. She did not notify the council as she left quickly in order to see her father.

The council visited the property in Enfield on 28 November 2018 and 6 December 2018. It concluded that the appellant was not residing at the property, although some of her personal belongings were there. On both occasions a note was left asking the appellant to contact the council, but it received no response.

On 6 December 2018 the council terminated the appellant's temporary accommodation under section 193(6).

The appellant returned to the UK on 7 December 2018 and, by a letter drafted with assistance and dated 10 December 2018, she applied to review the council's decision. In this letter she nominated her aunt's address as the address to which to send correspondence.

On 14 December 2018 Islington received the letter and wrote to the appellant at the aunt's address, acknowledging her request for a review and inviting her to provide further evidence within 7 days.

The appellant did so, sending copies of boarding passes and passports to show she was in Mauritius between 18 November 2018 and 7 December 2018.

On 21 December 2018 the council made its review decision upholding the decision to discharge its housing duty. The decision letter was sent by second class post to the aunt's address on 21 December 2018.

The aunt had gone away for Christmas on 20 December 2018 and returned on 8 January 2019. When the aunt returned she notified the appellant of the decision and, with her aunt's help she sought legal advice. An appointment was booked on 15 January 2019 with her legal advisers. An appeal was drafted with short grounds on that day.

The appellant's Notice was marked as filed by the court on 18 January 2019. Directions were given by a judge, resulting in the hearing before Judge Hellman to determine the application for extension of time.

Judge Hellman said there were two questions for him to decide: first, was the appeal brought within 21 days of Ms Emambee being notified of the decision, and second, if not, was there a good reason for her failure to bring the appeal in time.

The County Court judge said that as the appellant’s notice was filed on 18 January, an appeal would have been brought in time if Ms Emambee received notification of the local authority’s decision on or after 28 December.

Judge Hellman said he was satisfied that the notification date was the date of delivery of the letter to the premises notified by Ms Emambee. “This is by analogy with the concept of service. However, notification is a less technical concept; it is an ordinary English word, and so delivery was the actual date of delivery, and not a deemed date of delivery.”

He rejected a submission from Ms Emambee’s counsel that notification meant the date of actual receipt, saying that would “introduce a very substantial degree of uncertainty as to the notification date into the section, which I am satisfied was not the legislative intent”.

The judge said there was no evidence as to the date of notification, other than that it must have been between 22 December 2018, the date after the letter was posted, and 8 January 2019, the date when the letter was brought to Ms Emambee's attention.

He went on: “Two to three days was merely a target and it is the experience of the court that targets are not always attained. I take account of the fact that Christmas was a busy time of year for the Post Office, and that it is plausible that that target was not met on this occasion.

“However, it is a condition of bringing an appeal under section 204 [Housing Act 1996] that the appeal must be brought within 21 days of notification, that is to say I must be satisfied that the appeal was brought within that period. It is not enough that I am not satisfied that it was not brought within that period. This is an important distinction, and one that leads me to conclude that the requirements of section 204(2) are not requirements I am satisfied have been met. I am not satisfied that the appeal was brought within 21 days of notification."

Judge Hellman also concluded that Ms Emambee did not have a good reason for not filing her notice within the statutory 21 day period. Amongst other things he said he was not satisfied that her dyslexia was a good reason for the late filing.

Ms Emambee appealed to the High Court on the following grounds:

1. The judge erred in that (1) he was wrong to hold that the appeal was not brought within 21 days, and (2) he failed to give reasons why the appeal was not brought in time.
2. The judge erred in the exercise of his discretion in that he failed to consider relevant matters when deciding there was no good reason to bring the appeal out of time under section 204(2A).
3. The judge failed to give any or adequate reason for reaching the conclusion that there was no good reason for filing the appellant's Notice out of time.

In the High Court Mr Justice Stewart rejected the appeal.

On the first ground he did not accept the submission of the appellant that, given Judge Hellman's remarks in his judgment, he ought to have been satisfied that the letter was delivered on or after 28 December 2018 in view of the busy period.

“It may have been delivered after 27 December 2018, it may not. The judge was entitled to make the finding he did. There is no inconsistency in his reasoning, as the appellant submitted,” Mr Justice Stewart said.

The High Court judge also said that Judge Hellman had given “perfectly adequate” reasons for coming to his conclusion.

On ground 2, the appellant submitted that Judge Hellman had failed to have proper regard to the appellant's circumstances and in particular her dyslexia.

But Mr Justice Stewart said: “If one reads the judgment and the evidence it is clear that he had full regard to it, but came to the conclusion that in the circumstances of this case it was not a good reason. This he was entitled to do. Indeed, on analysis, I believe he was bound so to conclude.

“Dyslexia could not have been a reason for delay until 8 January 2019 when the Appellant first received the decision letter; nor could it have been a reason for delay after 15 January when the Appellant consulted solicitors.”

The High Court judge also dismissed ground 3. “The Judge considered all the circumstances and clearly used them to make his decision. There is no proper basis for submitting that the Judge did not give adequate reasons for his decision in this regard,” Mr Justice Stewart said.

“Indeed, even had the judge not given adequate reasons, [counsel for the appellant] accepted that this would not assist in the appeal as I would have to consider the matter afresh and, for the reasons already given, there was no evidence supporting the potential relevance of the dyslexia in causing the delay, or any part of the delay.”