High Court judge allows appellant in housing case to substitute council as respondent after naming wrong authority

A woman has been allowed by the High Court to amend her statutory housing appeal application after she named the wrong council on the original.

Mrs Justice Ellenbogen said Gwladys Fertrè had addressed the application to South Oxfordshire District Council when it should have been to Vale of White Horse District Council.

The two councils share services and offices and in this case such appeals were dealt with by the same officer using the same email and postal addresses for both. The councils are though separate legal entities.

Ms Fertré applied for homelessness assistance to Vale of White Horse, which found her ineligible as she was from abroad and she filed a statutory appeal under section 204 of the Housing Act 1996 but in error this was addressed to South Oxfordshire.

Vale of White Horse argued that her application was therefore a nullity and it was now too late bring such a case.

HH Moloney KC ruled in April 2022 that Ms Fertré could substitute Vale of White Horse as respondent to such an appeal.

Ms Fertré contended her application to amend should be permitted under CPR Part 52 and CPR 3.10.

Vale of White Horse appealed on the basis that the judge erred in permitting it to be substituted for South Oxfordshire on six grounds including that CPR 3.10 relates to procedural matters and does not extend to permitting the substitution of a party, and that CPR Part 52 does not permit the substitution of a new respondent to an otherwise void appeal.

It also argued that HH Moloney failed to have regard to the substitution of a different local housing authority as respondent amounting to a fresh appeal against a different local authority and that his order went far beyond case management to the fundamental aspects of the appeal.

Ellenbogen J said in her judgment: “One can readily see why proceedings instituted by a party who lacks title to sue are an incurable nullity, but there is no suggestion here that Ms Fertré lacked any entitlement to bring an appeal. She named the wrong entity as respondent, by mistake. Were that, of itself, to render proceedings a nullity, CPR 19.5(2) and (3) would be rendered otiose.

“Viewed as a whole, in my judgement the legislative framework is such that it does not compel the conclusion that an error of the nature with which this case is concerned renders the appellant's notice a nullity.”

She said Ms Fertré’s application had been sent to the relevant decision maker at the two councils’ shared legal department and all relevant individuals were officers of the correct respondent to Ms Fertré's appeal,

“The solicitor's error had lain simply in the fact that the wrong name had been entered in the relevant section of the form,” the judge said.

Ellenbogen J said the two councils had chosen to share premises; a housing officer, a legal department, and e-mail addresses and although the name of the respondent council had been incorrectly identified “read comprehensively the information provided in that document, coupled with the attached ground of appeal and decision letter, can have left the recipient in no doubt as to the decision under appeal and the housing authority by which it had been made”.

She concluded: “In the unusual circumstances of this case, I am satisfied that, in substance, the appellant's notice had identified the correct respondent and that the appeal had been validly commenced, notwithstanding the fact that, in error, the respondent had been inaccurately named.”

Mark Smulian