Applicant wins Court of Appeal battle over whether difficulty finding legal advisers was “good reason” for delay in homelessness appeal

The Court of Appeal has overturned a High Court ruling that the fact a homeless applicant was unrepresented and seeking legal aid was not a “good reason” for delay in bringing an appeal under s.204 of the Housing Act 1996 against an adverse review decision under the homelessness provisions of that Act.

In Al Ahmed v London Borough of Tower Hamlets [2020] EWCA Civ 51 the council had decided that Mr Al Ahmed was not in priority need.

The decision on the review upheld this original decision. This was notified to Mr Al Ahmed on either 4 or 6 April 2018.

Section 204 of the 1996 Act provides that an applicant who is dissatisfied with the decision on a review may appeal to the County Court on any point of law arising from the decision. By s.204(2), an appeal must be brought within 21 days of his being notified of the decision.

By s.204(2A), provision is made for the possibility of an appeal out of time. However the court must be satisfied that:

(a) where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time; or

(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."

Sir Stephen Richards, who heard the case in the Court of Appeal with Lord Justice Phillips and Lord Justice David Richards, said any appeal should have been brought by Mr Al Ahmed by 27 April 2018 at the latest. However, an appellant’s notice was not lodged until 25 May 2018.

The application for permission to bring the appeal out of time was heard by HHJ Hellman in the County Court at Central London.

In his witness statement Mr Al Ahmed explained that initially he had instructed solicitors to handle the review but owing to “miscommunication” he had stopped instructing them. He was getting help from Crisis.

A legal adviser at law firm Tyrer Roxburgh saw Mr Al Ahmed on 23 May, counsel was instructed and the appellant’s notice containing the application for leave to appeal out of time and grounds of appeal was lodged two days later.

HHJ Hellman said it was a reasonable position for Mr Al Ahmed to trust Crisis to get his appeal up and running, including filing it in compliance with any time limits. It was “unfortunate” that Crisis did not either ensure that the appeal was filed in time or explain to Mr Al Ahmed that, notwithstanding their assistance, that was something which he had to do.

The judge said: “This is a borderline case, but where there is a borderline case in my judgment the court should err in favour of granting permission to appeal out of time and that is what I propose to do. I say err, but I am satisfied that on the particular facts of this case, given the particular capabilities of this appellant and the particular course of conduct he had taken, seeking and relying upon the guidance which he had obtained from Crisis, it was reasonable for him to wait for Crisis to find him a legal representative because without a legal representative this appeal was never going to go anywhere.”

Tower Hamlets appealed. In the High Court Mr Justice Dove allowed the appeal and held that the s.204(2A) application for permission to appeal out of time should be refused. Mr Al Ahmed appealed. Shelter intervened.

Allowing the appeal, Sir Stephen Richards said the context of s.204(2A) was materially different from that under consideration in the cases where it had been held to be reasonable as a general rule to expect litigants in person to comply with relevant rules of court.

The Court of Appeal judge said Shelter’s evidence had presented “a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 of the 1996 Act without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector”.

He added: “Everything will of course depend on the circumstances of the individual case, but it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.”

Sir Stephen said: "In no way does that view give carte blanche to delay. The basic rule remains the 21 day time limit, with which Parliament must have intended applicants in general to comply. Compliance may present little difficulty in practice if an applicant already has a solicitor acting for him in relation to the review (as might have been the position in Mr Al Ahmed's case had it not been for a breakdown in the relationship between him and his solicitor).

"Where an applicant relies on the fact that he was unrepresented and was seeking legal aid as a reason for non-compliance, the circumstances will need to be examined with care, including scrutiny of the diligence with which he acted in seeking legal aid. And even if the court is satisfied as to good reason, that simply opens up a discretion to give permission for an appeal to be brought out of time. At that stage the court is able to take into account all other relevant considerations, including the position of the local authority, in deciding how to exercise its discretion."

Sir Stephen Richards said Judge Hellman's assessment that there was a good reason within s.204(2A) for Mr Al Ahmed's delay in bringing the appeal was "an evaluative judgment with which an appellate court should be slow to interfere….. I do not think that there was any proper basis for Dove J to interfere with it."

The Court of Appeal judge said Dove J's finding that Judge Hellman misdirected himself was based on two main strands of reasoning: (1) the general point that the fact that Mr Al Ahmed was unrepresented "had little, if any, part to play in providing good reason"; and (2) his view that "there was no basis for the Judge to conclude that the appeal could not be commenced without legal representation, and that in the particular circumstances of this Respondent he was unable to provide a document expressing his complaints in relation to the decision reached in a manner that would enable the court to understand the errors of law which were relied upon".

However, Sir Stephen said the fact that Mr Al Ahmed was unrepresented and was seeking legal aid “was a factor properly taken into account by Judge Hellman”.

The Court of Appeal judge said Mr Justice Dove’s second strand “rests…. on a misunderstanding of Judge Hellman's reasoning or errs in rejecting that reasoning; and it goes against findings of fact reasonably made by the judge on the evidence before him”.

Sir Stephen explained: “At [14]-[15] of his judgment, Judge Hellman accepted in terms that the appellant could have filed a notice of appeal in time. His point, however, was that Mr Al Ahmed "probably had no idea what it needed to say" and reasonably sought assistance from Crisis which took the view, also reasonably, that he needed legal representation.

“Judge Hellman clearly did not accept that Mr Al Ahmed was able to identify without legal representation even the substance of the two grounds of appeal that were advanced once he did have legal representation. He pointed to the contrast between what Mr Al Ahmed wrote in his lengthy emails to the Council (which got nowhere near to identifying the relevant points of law) and what was set out succinctly in the grounds of appeal actually filed.

“Thus, the judge was looking, perfectly reasonably, at the practicalities of the matter. In his view there was no useful purpose in filing a notice of appeal until Mr Al Ahmed had legal representation and knew what, if any, points of law could be advanced: "without a legal representative this appeal was never going to go anywhere". There was no error of law in any of this, and it was based on factual findings for which there was an adequate evidential foundation in the material to which the judge referred.”

Sir Stephen noted that Dove J had criticised Judge Hellman's findings as to the extent of Mr Al Ahmed's reliance on Crisis and stated that Mr Al Ahmed could not rely on Crisis to draft and issue the appeal for him.

“All this leads back in to Dove J's view that it was for Mr Al Ahmed to ensure compliance with the time limit and that it was within his capabilities to do what was necessary to bring the appeal in time. Again, however, Judge Hellman's findings as to the extent and reasonableness of Mr Al Ahmed's reliance on Crisis were in my view properly open to him on the evidence; and the question whether Mr Al Ahmed could have brought a meaningful appeal in time has been sufficiently covered above.”

Sir Stephen added that if and in so far as Dove J was basing himself on a wider proposition that homelessness applicants were able as a general rule to draft a notice of appeal and adequate grounds of appeal without legal representation (cf. "I am unable to accept the contention that it is necessary for a lawyer to be instructed before adequate grounds of appeal, sufficient to bring the appeal before the court, can be drafted", at [15] of his judgment), such a proposition was in his judgment mistaken. “It is not supported by the evidence before Judge Hellman and it is contradicted by the evidence placed before this court by Shelter.”

Shelter’s Chief Executive Polly Neate said: “This is a very welcome judgment, providing significant guidance and recognising the difficulties faced by homeless applicants bringing an appeal without legal advice and representation. Importantly, the judgment also recognises the wider difficulties caused by cuts to legal aid and the subsequent shrinking of the housing advice sector.”