Abdullah Al Ahmed v The Mayor and Burgesses of the London Borough of Tower Hamlets
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Phillips,Lord Justice David Richards |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWCA Civ 51 |
| Date | 30 January 2020 |
| Docket Number | Case No: C1/2019/0894 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 51
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Dove
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Phillips
and
Sir Stephen Richards
Case No: C1/2019/0894
and
Richard O'Sullivan (instructed by Tyrer Roxburgh) for the Appellant
Mark Baumohl (instructed by Legal Services, LB of Tower Hamlets) for the Respondent
Liz Davies and Connor Johnston (instructed by Freshfields Bruckhaus Deringer LLP, all acting pro bono) for the Intervener
Hearing date: 15 January 2020
Approved Judgment
This case concerns the approach to be adopted by the court towards the assessment of a “good reason” for delay in bringing an appeal under s.204 of the Housing Act 1996 (“the 1996 Act”) against an adverse review decision under the homelessness provisions of that Act, in circumstances where the reason put forward for the delay is that the applicant was unrepresented and was seeking legal aid.
The County Court proceedings
Following an application by Mr Al Ahmed, the appellant in this court, to the respondent authority (“the Council”) under the homelessness provisions of the 1996 Act, the Council decided that he was not in priority need. The solicitors then acting for him requested a review of that decision. The decision on the review, dated 23 March 2018, upheld the original decision.
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), however, provision is made for the possibility of an appeal out of time:
“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) 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.”
The review decision in this case was notified to Mr Al Ahmed on either 4 or 6 April 2018. Any appeal should therefore have been brought by 27 April 2018 at the latest. An appellant's notice was not lodged until 25 May 2018. It included an application for permission to appeal out of time, together with two substantive grounds of appeal: (1) breach of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, in that a “minded to” letter requesting further representations was not received by the appellant and in any event an insufficient period was allowed to enable an unrepresented lay person an opportunity to make meaningful representations; and (2) failure to comply with the duty of inquiry under s.149 of the Equality Act 2010 into the question of the appellant's disability.
The application for permission to bring the appeal out of time was heard by HHJ Hellman in the County Court at Central London.
The evidence before the judge included a short witness statement by Mr Al Ahmed, exhibiting a letter to the court from his support worker at Crisis and documents relating to his medical condition. The evidence also included emails and letters passing between Mr Al Ahmed and the Council which were attached to the Council's statement of reasons in opposition to the application for permission.
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, whose efforts on his behalf were set out in the letter from the support worker, Ms Caroline Harte. The letter read in material part as follows:
“I am aware that there is a thirty-five-day delay in appealing the council's decision while writing to you but there were several issues that stopped us putting in an appeal sooner and I want to try to explain why the delay occurred.
I started covering for my colleague Steve Barnes in March 2018, Steve had been supporting Abdullah and it took me a couple of weeks to set up an initial meeting with Abdullah and to become familiar with his case. Steve and myself work as part of the rough sleeper's progression team at Crisis.
Crisis is a homeless charity providing learning and employment opportunities and advice and guidance for homeless clients. Abdullah had been linked in with our service since October 2016.
Abdullah had been linked in with Myles and Partners who were representing him in the initial appeal but the relationship of trust and confidentiality between the client and their service broke down and was not redeemable.
We have a list of legal advice providers in close proximity to E1 that we call on to support our clients with their legal matters and I spent a few weeks trailling [ sic] through the list calling companies only to be told their client housing caseloads were full or that they would get back to me. I rang TV Edwards, Duncan Lewis, Aden and Co, Edwards Duthie and Tower Hamlets Law Centre to name but a few and no one was in a position to take the case on.
It was only when I contacted Malcolm and Co who deal with private clients that I got to speak at length to a solicitor Sally Goldman about the case. She advised me to speak with Sean Shanmuganathan at Tyrerroxburgh [ sic] who kindly looked through the documents and after meeting with Abdullah and myself decided to grant emergency legal aid on our behalf.”
The evidence was that matters moved very swiftly once Tyrer Roxburgh became involved. A legal adviser saw Mr Al Ahmed on 23 May, counsel was instructed and an appellant's notice containing an application for leave to appeal out of time and grounds of appeal was lodged on 25 May.
Judge Hellman's reasons for finding good reason within s.204(2A)(b) and for granting permission to appeal out of time are contained in the last two paragraphs of his ex tempore judgment:
“14. I stand back and look at all the relevant circumstances. Whereas it is true that Mr Al Ahmed could have filed an appeal in time – there was no mental impediment to him doing so, and there was no logistical impediment because he had access to a computer and the review letter stated very clearly what he had to do – he sought assistance with the preparation of this technical legal document. In my judgment he probably had no idea what it needed to say. Aware of his limitations, he sensibly sought assistance from Crisis. He trusted them to do what was necessary to get his appeal up and running, including filing it in compliance with any time limits. This was a reasonable position for him to take. Crisis took the view, which was also reasonable, that Mr Al Ahmed needed legal representation. The wisdom of that course is borne out by comparing what Mr Al Ahmed wrote in his lengthy emails to the Council with what is set out very succinctly in the grounds of appeal filed, albeit out of time, by his legal representatives. It is, however, 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 is something which he had to do.
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. Whether it goes anywhere now that he has got one remains to be seen and I express no view on that question, but I am going to give permission to appeal out of time.”
The appeal to the High Court
The Council appealed to the High Court against Judge Hellman's order granting permission to appeal out of time. It argued that he had applied the wrong test, had taken into account an irrelevant consideration and had reached a conclusion not reasonably open on the evidence before him. The appeal was heard by Dove J, who gave judgment allowing the appeal and holding that the s.204(2A) application for permission to appeal out of time should be refused.
After summarising the parties' submissions, Dove J's judgment set out at [12]–[13] a number of uncontentious points, to some of which I will return in due course, about the power in s.204(2A). He then referred in [13]–[14] to an argument for the Council based on R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 2472 (“ Hysaj”) at [43]–[45], and Nata Lee Limited v Abid [2014] EWCA Civ 1652, [2015] P&CR 3 at [53], that the mere fact that a person is unrepresented could not amount to a good reason for delay in bringing an appeal. As to that point, the judge concluded at [14]:
“It is clear, therefore, that the fact that a party is not professionally represented could play only a very limited, if any, part in the assessment of whether or not there was good reason for a departure from the time limit in bringing the appeal in cases of this sort.”
The judge's main reasons for finding that Judge Hellman had misdirected himself were then set out at [15]–[17]:
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The Queen (on the application of Dora Tendresse Ibrahim) v Westminster City Council
...to appeal within time is a straightforward statutory test to which no gloss is or should be applied: Tower Hamlets LBC v. Al Ahmed [2020] EWCA Civ 51; [2020] 1 WLR 118 I acknowledge of course that the Claimant had, through no fault of her own, no opportunity to lodge an appeal in time; an......