Mayor and Burgesses of the London Borough of Hamlets v Abdullah Al Ahmed
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 26 March 2019 |
| Neutral Citation | [2019] EWHC 749 (QB) |
| Court | Queen's Bench Division |
| Date | 26 March 2019 |
| Docket Number | Case No: QB/2018/0238 |
[2019] EWHC 749 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: QB/2018/0238
Mark Baumohl (instructed by Marcia Pinnock) for the Appellant
Richard O'Sullivan (instructed by Tyrer Roxburgh) for the Respondent
Hearing dates: 12th February 2019
Approved Judgment
On the 12 th June 2017 the Respondent requested a review of the decision which the Appellant had reached that he was not a person in priority need in accordance with section 202(1) of the Housing Act 1996. The decision on the review was made in a letter dated the 23 rd March 2018. For the reasons set out in that letter, which are not directly germane to the issues in the appeal, the Appellant declined to change its decision following the review, and upheld their earlier conclusion that the Respondent was not in priority need. At the end of the decision the Appellant's Housing Review Officer pointed out that pursuant to section 204(2) of the 1996 Act the Respondent could bring an appeal to the County Court on the basis of an error of law within 21 days of the date on which the Respondent was notified of the decision.
It appears from the evidence before the court that in fact the Respondent was not in receipt of the decision until either the 4 th or the 6 th April 2018, meaning that it was necessary for him to bring any appeal against that decision by either the 25 th or 27 th April 2018. It is an agreed position that nothing turns on the difference between those two days. It also appears from evidence before the court that at the time when the review was initially on foot the Respondent had instructed solicitors to act on his behalf. However, owing to miscommunication, he withdrew his instructions from those solicitors.
He was getting assistance from the charity Crisis, and he had a support worker who was assisting him with his housing problems. In about March 2018 his care worker changed to a Ms Harte, and she set up an initial meeting with the Respondent to become familiar with his case. In a letter which Ms Harte wrote on the 24 th May 2018 she explained the efforts which she had gone to in order to assist the Respondent and identified reasons why his appeal should be considered by the County Court. She stated as follows:
“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 no 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 trailing through the list calling companies only to be told by 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 who kindly looked through the documents and after meeting with Abdullah and myself decided to grant emergency legal aid on our behalf.
I am submitting the last two doctor's letters to Sean one of which states Abdullah's medical conditions he would undoubtedly become more vulnerable to deterioration being homeless, despite his doctor's opinion he has been sleeping in a park since his eviction on the 4 th May and is fasting for Ramadan he is becoming weaker with the stress and exposure of sleeping outdoors.
We would really appreciate if you could excuse our delay and take on his appeal, that way we may be able to secure some emergency accommodation in the short term and grant him the support he desperately needs.”
It will be noted that there are references in the letter from Ms Harte to the Respondent's medical difficulties. Contained within the material before the court is medical evidence which demonstrates that the Respondent suffers from a severely underactive thyroid (causing depression and lethargy); lower back pain affecting his ability to sit for any length of time and causing burning and numbness of the shins and pain in his knees; dizziness and unusual bodily sensations for which he has been referred to a neurologist.
As stated in Ms Harte's letter the Respondent's case was taken on by his present solicitors, who first saw him on the 23 rd May 2018. Legal aid was secured and counsel was instructed on the 24 th May 2018; on the same date Counsel provided the grounds for the appeal. Those grounds were, firstly, that the Appellant had asserted in its decision that it had provided the Respondent with a “minded” letter, seeking further representations from him, on the 15 th March 2018, and that the letter had never been received by the Respondent thereby preventing him from making any further representations and impeding his access to justice. The second ground of the appeal was that the Appellant had failed to properly enquire into the Respondent's medical condition and thereby properly engage with its duty under section 149 of the Equality Act 2010. The appeal, including the Grounds of Appeal and a witness statement in support signed by the Respondent, were issued on the 25 th May 2018. The appeal was therefore lodged approximately one month too late.
Within the grounds the Respondent sought permission to bring his appeal out of time. In the present case the discretion to bring the appeal out of time was provided within section 204(2A) (b) which provides as follows:
“204(2A) 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.”
Having rehearsed the factual background to the application the Judge decided to grant the extension of time which the Respondent sought. His reasons for granting the extension were as follows:
“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 length 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 Ahemd that, notwithstanding their assistance, that is something which he had to do.
15. 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.”
I wish to place on record my gratitude to counsel for the care with which they constructed their written and oral arguments, which have been of considerable assistance to me in reaching my conclusion. On behalf of the Appellant Mr Mark Baumohl advanced the appeal on three grounds. Firstly, he submitted that the Judge had applied the wrong test in concluding that the Respondent had demonstrated there was good reason to extend time to bring the appeal. He submitted that the test applied by the Judge was to consider whether the Respondent was able to conduct the appeal by himself, rather than able to bring the appeal before the court. Since the statutory test required an examination of whether or not there was good reason “to bring the appeal in time”, the Judge had applied the wrong test and his decision could not stand. Secondly, Mr Baumohl submitted that the Judge had taken into account an irrelevant consideration when exercising his discretion namely whether or not it was reasonable to conclude that the Respondent had the ability to conduct the appeal by himself. Again, that was not the test which fell to be applied, and therefore the Judge had erred. The third ground of appeal was that the decision the Judge reached was one which was irrational and not open to him, on the basis that there was no evidence from which the Judge could have...
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