South Oxfordshire District Council v Gwladys Fertre
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen DBE |
| Judgment Date | 25 January 2024 |
| Neutral Citation | [2024] EWHC 112 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QA-2022-000089 |
[2024] EWHC 112 (KB)
Mrs Justice Ellenbogen
Case No: QA-2022-000089
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Rowlands (instructed by South Oxfordshire and Vale of White Horse District Councils' Legal Services) for the Appellants
Simon Cox (instructed by Turpin Miller) for the Respondent
Hearing date: 17 March 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 2pm on 25 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issue to be determined in this appeal is whether, and, if so, in what circumstances an appellant who has brought a statutory appeal under section 204 of the Housing Act 1996 (‘the HA 1996’) against the wrong respondent should be permitted to substitute the correct respondent by amendment. It arises from the decision of HH Moloney KC, made on 8 April 2022, to grant permission to Ms Fertré to substitute the Vale of White Horse District Council (‘VWHDC’) as respondent to such an appeal, which she had originally brought, in error, against South Oxfordshire District Council (‘SODC’). It is acknowledged by both parties that, if the housing authorities succeed in their submissions before this court, Ms Fertré's substantive appeal (which HH Moloney KC transferred to the High Court) necessarily falls away.
Background
The facts giving rise to this appeal are unusual and uncontentious. SODC and VWHDC are separate legal entities. Each is a local housing authority, having its own responsibilities and covering its own geographical area. They have a common postal address and share officers and offices (albeit that, it is said, most staff work from home).
In brief (because consideration of the substantive appeal does not arise at this stage), Ms Fertré applied for homelessness assistance to VWHDC, which found her to be ineligible, as being a person from abroad, a decision maintained on review on 21 January 2022.
In material part, section 204 of the HA 1996 provides:
‘ 204.—Right of appeal to county court on point of law.
(1) If an applicant who has requested a review under section 202—
(a) is dissatisfied with the decision on the review, or
(b) is not notified of the decision on the review within the time prescribed under section 203,
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.
(2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.
(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.’
Accordingly, time for appealing against VWHDC's decision on review expired on 11 February 2022. On that date, Ms Fertré's solicitor, Ms Coyle, filed an appeal in the County Court, erroneously naming SODC as the respondent. She did not serve VWHDC with the appeal, or with her subsequent application to amend her appellant's notice in order to substitute that housing authority as respondent. She was notified of her error by Ms Vivien Williams, a solicitor working for both authorities, on 9 March 2022. It was and remains the housing authorities' position that, as originally lodged, Ms Fertré's appeal was a nullity, such that the court has no jurisdiction to entertain it.
By application dated 11 March 2022, Ms Fertré applied to amend her appellant's notice and ground of appeal to substitute VWHDC as respondent, relying upon Ms Coyle's witness statement, signed on the same date, which indicated that reliance was placed upon CPR Part 19. Additionally, she sought to amend her ground of appeal in order to raise a new point which did not arise out of the decision under appeal. Under the heading, ‘Mistake’, Ms Coyle stated:
‘4. Vale of the White Horse and South Oxfordshire District Councils have shared housing services and shared legal services. One officer, Mr Jaffa Holland, deals with homelessness reviews for both authorities and uses the email address jaffa.holland@southandvale.gov.uk for his correspondence for both. The postal address for both authorities is the same and the email address for service of legal documentation is also the same (legal@southandvale.gov.uk).
5. The review decision of 21 January 2022 was made by Vale of White Horse District Council. The decision letter was headed “Vale of White Horse”. However, it contained the Mr Holland's South Oxfordshire email address and was issued from that account. I mistakenly identified South Oxfordshire District Council as the authority responsible for the decision. The appeal papers were settled and issued on this basis.’
It is, at this stage, worth setting out in greater detail the underlying position to which Ms Coyle referred. The 16-page review decision letter bore, at its head, the name and logo of VWHDC. It identified the contact officer as Jaffa Holland, whose e-mail address (jaffa.holland@southandvale.gov.uk — seemingly an amalgam of the first word of each authority's name) was provided, as was the postal address and telephone number of VWHDC. As noted above, that postal address was shared by SODC. At the foot of the first page of the letter, the URL www.whitehorsedc.gov.uk appeared. Mr Holland worked for both authorities and had been the decision-maker in Ms Fertré's case.
At paragraph 11 of her witness statement, Ms Coyle stated:
‘On 11 February 2022, when I sent the appeal to the court, I e-mailed a copy to Mr Holland and asked him for contact details of the Authority's legal department. He replied providing me with the email address for both local authorities but did not alert me to the fact that the appeal was being issued against the wrong authority. I assume this was because he did not notice my mistake at that time. A copy of this correspondence is exhibited to this witness statement at Exhibit LC1. I became aware of the error that had been made when Vivien Williams, a solicitor for both authorities, notified me of the error on 9 March 2022 by telephone.’
The exhibited e-mail exchange to which the above paragraph refers comprises Ms Coyle's e-mail to Mr Holland, informing him that her firm would be issuing ‘the appeal’ that day and requesting contact details for his legal department. Mr Holland asked her to send papers to ‘legal@southandvale.gov.uk’, an address which adopted the same amalgamation of the first word of each authority's name, as the legal department also worked for both housing authorities. At 15:24 on 11 February 2022, Ms Coyle sent an e-mail to that address, copied to Mr Holland's address, with the subject ‘appeal’. It read, ‘Please find attached a copy of a county court appeal that has been lodged at Oxford County Court this afternoon.’ She received an automatic reply, acknowledging receipt, the footer on which read ‘South Oxfordshire & Vale of White Horse District Councils [postal address]. Visit us at www.whitehorsedc.gov.uk or www.southoxon.gov.uk.’
The appellant's notice lodged with the court was on Form N161. Under the pro forma heading ‘ Details of the Respondent to the appeal’, it named the Respondent as SODC, citing the postal address and telephone number which had appeared at the head of the decision letter, together with Mr Holland's e-mail address. In Section 2, under the heading, ‘From which court is the appeal being brought?’, the box marked ‘ Other (please specify)’ was ticked, below which were inserted the words, ‘South Oxfordshire District Council, Housing and Environment’. In the box marked, ‘What is the name of the judge whose decision you want to appeal?’ was typed ‘Jaffa Holland, Housing Team Leader’. The date of the decision against which the appeal was brought was identified to be 21 January 2022. In Section 3, the contact details provided for the respondent's legal representative comprised the same postal address and telephone number which had been provided for the respondent itself, along with the e-mail address ‘enquiries@southoxon.gov.uk’. Section 5 made clear that the ‘order’ against which Ms Fertré wished to appeal was the ‘Decision that the appellant is ineligible for homeless housing assistance under Part 7 Housing Act 1996.’ By Section 9 of the form, a request was made to set aside the order from which the appeal was brought and to substitute ‘An order that the decision of 21 January 2022 be varied to state that the appellant is eligible for homeless housing assistance.’ In Section 11, headed ‘Evidence in support’, it was stated that ‘This appeal raises a complex point of law of general public importance, namely whether EU citizens who have been granted Pre-Settled Status in the UK are eligible for homeless housing assistance by virtue of their Pre-Settled Status alone, irrespective of whether or not they are economically active. In particular, the appellant contends that in so far as secondary legislation provides for the contrary, it is unlawful for breach of Article 23(1) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, and section 7A of the European Union (Withdrawal) Act 2018.’ Attached to the appellant's notice were: (1) the...
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