At Housing Reviews we always wait with great anticipation any cases which are being heard in the Court of Appeal or the Supreme Court and which deal with the review procedures. One such case is Stanley v Welwyn Hatfield Council [2020] EWCA Civ 1458 where the Court of Appeal this month dealt with issues relating to late reviews and review deadlines.
1. Review Deadlines
Regulation 9 of the Homelessness (Review Procedure etc.) Regulations 2018/223 sets out the time period in which a review needs to be completed. There are 4 different timescales depending on the original decision.
If the original decision related to:
reasonable steps to prevent or relieve homelessness
notice to bring the prevention duty to an end for any reason
3 weeks - beginning with the day on which the request for the review is made or, where the applicant makes representations under regulation 7, beginning with the day on which those representations are received
If the original decision related to:
eligibility for assistance
notice as to what duty is owed to the applicant
notice to bring the relief duty to an end for whatever reason
referral to another authority where the main housing duty is owed
outcome of the decision on whether the conditions for referral are met
outcome of the decision as to which authority holds the case between the original and the receiving authority
suitability of accommodation offered
8 weeks - beginning with the day on which the request for the review is made.
If the original decision related to:
whether the conditions for referral are met and was made jointly by the concerned authorities
10 weeks - beginning with the day on which the request for the review is made.
If the original decision related to:
the original decision was made by an appointed arbitrator and concerned a local connection referral
12 weeks - beginning with the day on which the request for the review is made.
Regulation 9 states that those deadlines must be adhered to unless the applicant and the reviewer agree in writing to extend it.
In Stanley v Welwyn Hatfield Council [2020] EWCA Civ 1458 the Court of Appeal clarified that an applicant and a reviews officer can agree an extension of time without necessarily having to explicitly agree a specific date.
This is a sensible approach especially when either we, as reviewing officers, or the applicant is waiting for information from 3rd parties, e.g. GPs.
For example, it could be agreed that the review period will be extended until 14 days after receipt of medical information or even receipt of the housing file.
2. Late Reviews
If the applicant is dissatisfied with the review decision then, in accordance with Section 204, they can appeal to the county court on a point of law as follows:
(1) If an applicant who has requested a review under section 202 –
(a) is dissatisfied with the decision on 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.
Although obiter dicta, i.e. not strictly binding authority, in Stanley v Welwyn Hatfield Council [2020] EWCA Civ 1458 the Court of Appeal’s view was that a review decision which is reached late may still be valid.
The court said that it would be “surprising” if parliament had intended that, once a review decision has been made, the parties and the court should ignore it and go through an argument as to the adequacy of the original decision.
Having considered a number of decisions made by the County Court, e.g. Muloko, the Court of Appeal decided that there is nothing in the Housing Act 1996 to suggest that a review decision which is made late is of no effect. Therefore, an appeal against a late review decision does not “validate” it because the review decision is not invalid in the first place.
The court stressed that where someone appeals against both the original decision and the review decision, unless there is some distinct factor giving rise to a legitimate interest in pursuing a quashing of the original decision, the County Court should treat the appeal as a challenge to the review decision and should focus on the review decision.
In paragraph 52 Lord Justice McCombe gave some clarity as to what 'legitimate interest' means. He stated “I do not see that seeking the quashing of the original decision simply in the speculative hope of a more favourable decision from a different officer would be legitimate in the relevant sense. Nor would the mere hope of fresh evidence be of use, provided the reviewing officer had had all the material evidence. A desire to preserve the interim housing duty under s.188 would seem to be simply an attempt to play the system which is not what the public housing system is for.”
This is a sensible approach. It should mean that going forward the appellant and the local authority can focus a homelessness appeal on the lawfulness of the review decision, even if it was made out of time, rather than arguing over the legality of an original decision which has been superseded.
It is also important to note that the Court of Appeal will hear further argument about out-of-time homelessness review decisions in a pending case, Ngnoguem v Milton Keynes Council. There is no date set for the Court of Appeal to hear the appeal but one to certainly look out for.
Comments