Tower Hamlets v Begum

This is a second appeal brought by the London Borough of TowerHamlets (“the Council”) against His Honour Judge Hornby’s dismissal of their claim for possession of 20 Allonby House, Aston Street, London E14 (“the flat”). The claim had been brought against Mrs Rahanara Begum (“the respondent”) in the Bow County Court.

It was common ground that the Council had validly determined the respondent’s tenancy of the flat and that her tenancy attracted no statutory protection. However, the judge held that, because the Council continued to owe the respondent a duty to house her pursuant to Part VII of the Housing Act 1996 (“the 1996 Act”), she was entitled to retain possession of the flat by virtue of her right to respect for her home under article 8 of the European Convention on Human Rights (“article 8”).

On 16 June 2000, the respondent applied to the Council, as her local housing authority, for assistance under Part VII of the 1996 Act, on the basis that she was involuntarily homeless. On 19 September 2000, the Council replied stating that they were “satisfied that you are eligible for assistance, homeless and that you have a priority need for accommodation” and that “your homelessness is not intentional”. The Council’s letter went on to state that long-term accommodation suitable for the Respondent was not currently available, and that the Council were therefore obliged to make temporary accommodation available to her under section 184 of the 1996 Act.

Accordingly, on 3 November 2000, the Council granted the respondent a tenancy of the flat, while they tried to find more permanent accommodation for her. Because the tenancy granted to the respondent by the Council was of temporary accommodation for a homeless person, she enjoyed no statutory protection: see paragraph 4 of Schedule 1 to the Housing Act 1985.

By a letter sent on 21 January 2002 (and received two days later), the Council made the respondent an offer of more permanent accommodation at 3 Brimsdown House, Devas Street, London E3. The letter informed the respondent of the arrangements which had been made for her to inspect 3 Brimsdown House, and warned her that, if she unreasonably refused the offer, the Council’s “responsibility will be discharged… and you will be required to leave any accommodation provided by the Council under Part VII of the Housing Act 1996”.

The letter of 21 January 2002 was accompanied by two other documents. First, there was a Notice to Quit determining the respondent’s tenancy of the flat. Secondly, there was a letter in standard form explaining the respondent’s rights in some detail. One of the things the respondent was told in this letter was that, if she accepted the proposed accommodation, i.e. 3 Brimsdown House, the Council’s duty to her as a homeless person would be at an end. The standard letter also informed the respondent that, if she refused that accommodation, the Council’s duty to house her would be at an end, provided that (1) she was aware of the consequence of refusal, (2) the offer was suitable, (3) it was reasonable for her to have accepted the offer, and (4) she was notified within 21 days “that the Council is satisfied with all these matters”.

The standard letter also explained to the respondent that she if she did not think that the offer of accommodation made to her was “suitable” she could “request a review of the council’s decision to offer her the accommodation” and emphasising that such a request “must be submitted IN WRITING within 21 days of the date of the offer letter accompanying these notes” (original emphasis).

The respondent duly viewed 3 Brimsdown House on 24 January 2002 and orally turned it down. The following day, the Council wrote to her, expressing concern that she had rejected 3 Brimsdown House and stating:

“As you have been informed, [the Council] makes one offer only to homeless persons. If you are in temporary accommodation and do not accept the tenancy, this provision will cease as the Council by making a reasonable and suitable offer of permanent accommodation, will have ceased its responsibility to you under the provisions of the Housing Act 1996, Part VII…”.

The letter of 25 January went on to advise the respondent “to accept and sign for the offer by midday, Monday 28 January 2002”.

On 28 January 2002, the respondent wrote to the council “to formally refuse the offer” of 3 Brimsdown House, and, in her letter, she set out her reasons for this refusal.

On 22 May 2002, Mrs S Hayes, a re-housing manager of the Council, wrote the respondent a letter setting out the brief history of the respondent’s relationship with the Council since June 2000, and going on to deal in some detail with the reasons the respondent had put forward for rejecting 3 Brimsdown House. Mrs Hayes rejected all those reasons, and stated that she was not prepared to overturn the Council’s decision to offer the respondent 3 Brimsdown House, or their decision that it would be reasonable for her to accept that property. Mrs Hayes’s letter concluded in the following terms:

“I must advise you that you have no further right of review of my decision, but should you be dissatisfied of the same then you may appeal to the county court on a point of law, provided any such appeal is lodged within 21 days of the date of this letter.

“I note with some disappointment that you failed to sign and accept the tenancy offered to you despite being advised in writing and verbally… of the consequences of refusing the offered accommodation should your review be unsuccessful. Given that you chose not to accept the offered accommodation I would advise you that it is now your responsibility to make your own arrangements for your accommodation and vacate as soon as possible 20 Allonby House. … This authority is satisfied that it has offered suitable and reasonable accommodation to you and that no further duty is owed under homelessness legislation.”

No appeal was brought by the respondent, who remained in occupation of the flat. On 15 August 2002, the Council began possession proceedings against the respondent. On 13 June 2003, Deputy District Judge Goodman refused the Council an order for possession of the flat on the grounds that the Notice to Quit was invalid. This was on the basis that the Council remained liable to house the respondent, notwithstanding her rejection of 3 Brimsdown House, because it had failed to inform her, within 21 days of that rejection, that that property was suitable accommodation and that it would be reasonable to have accepted that offer.

The Council appealed, and the appeal came on before Judge Hornby. Mr Jamie Burton, who appeared for the respondent, as he does before us, conceded that he could not support the District Judge’s conclusion that the Notice to Quit was bad. However, he contended that, because the Council had not notified the respondent, within 21 days of her refusal of 3 Brimsdown House, that it was suitable accommodation for her and that it was reasonable for her to accept it, they remained under a duty to house the respondent, and that accordingly, it would be contrary to the respondent’s Article 8 rights if an order for possession was made. The judge accepted that argument in a full and careful judgment given on 17 August 2004.

I shall first set out the relevant Statutory provisions, and will then turn to consider the proper analysis and legal consequences of the facts set out above. All references hereafter to sections are, unless the contrary is stated, to sections of the 1996 Act, in its form prior to amendment by the Homelessness Act 2002 (“the 2002 Act”).

Part VII of the 1996 Act is headed “Homelessness”, and the first few sections are concerned with identifying “homelessness and threatened homelessness”, and deal in general terms with duties in relation to homelessness. Sections 183 and 184 are directed towards “application for assistance in case of homelessness or threatened homelessness”. If an application is made by someone who claims to be homeless or threatened with homelessness, the local housing authority has a duty to investigate whether he is eligible for assistance, and, if so, what duty is owed to him and to notify him of their decision. Any such notification “shall also inform the applicant of his right to request a review of the decision and the time within which such a request must be made”: see section 184(5). Eligibility for assistance is the subject of sections 185-187. Sections 188 and 189 are concerned with “Interim duty to accommodate”.

The “Duties to persons found to be homeless or threatened with homelessness” are set out in sections 190 and following. The centrally relevant provision for present purposes is section 193, which is headed “Duty to persons with priority needs who are not homeless intentionally” (a category which, it is common ground, included the respondent at least until her rejection of 3 Brimsdown House). Until 31 July 2002, when it was amended pursuant to the provisions of the 2002 Act, section 193 provided, so far as relevant, as follows:

“(1)

This section applies when the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he has become homeless intentionally....

(2)

Unless the authority refer the application to another local housing authority…, they shall secure that accommodation is available for occupation by the applicant.

(3)

The authority are subject to the duty under this section for a period of two years (“the minimum period”) subject to the following provisions of this section.

…

(5)

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of a refusal, refuses an offer of accommodation which the authority is satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under the section.

…

(7)

The local housing authority shall also cease to be subject to the duty under this section if –

(a)

the applicant, having been informed of the possible consequence of refusal, refuses the offer of accommodation… and

(b)

the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal.

…

(9)

A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.”

As already mentioned, section 193 was amended with effect from 31 July 2002; this was pursuant to Article 2 of the Homelessness Act 2002 (Commencement) (No. 1) (England) Order 2002 (SI 2002/1799 C56). So far as relevant for present purposes, it changes the period identified in subsection (3), makes a minor amendment to subsection (5), and more substantially alters subsection (7), and introduces some new subsections, (7A) to (7F). These proceedings have been, at least in the main, conducted on the basis that section 193 applies in its original form, and in my view that is the correct basis. All the steps that were, or should or could have been, taken under the 1996 Act in connection with the present matter, were or could or should have been taken before the end of July 2002, save that the instant proceedings themselves were started after that date.

I turn next to sections 202-204 which are headed “Right to request review of decision”. Section 202 provides as follows:

“(1)

An applicant has the right to request a review of – ”

(a)

any decision of a local housing authority as to his eligibility for assistance,

(b)

any decision of a local housing authority as to what duty (if any)is owed to him under section 190-193 and 195-196…

....

(f)

Any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty… or as to the suitability of the accommodation offered to him as mentioned in section 193(7).

…

(3)

A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.

(4)

On a request being duly made to them, the authority …shall review their decision.

Section 203 is concerned with the procedure on review. Section 204 is in these terms so far as relevant:

“(1)

If an applicant who has requested a review under section 202… is dissatisfied with the decision on the review,… he may appeal to the county court on any point of law arising from the decision…

(2)

An appeal must be brought within 21 days of his being notified of the decision…

(3)

On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.

....”

Sections 202 to 204 were also amended by the 2002 Act. In particular, a new subsection (2A) was added to section 204, which empowers the court to give permission to appeal “after the end of the period allowed by subsection (2)”. Where an application for permission to appeal out of time is brought after time has expired, the court has to be satisfied “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.”

In summary terms, the Judge’s reasoning was as follows. First, it was common ground that the Council initially had a duty to house the respondent because she was not intentionally homeless and had priority need. Secondly, having provided her with temporary accommodation, namely the flat, the Council had offered her more permanent accommodation, namely 3 Brimsdown House, which she had refused. Thirdly, the Council contended that, because 3 Brimsdown House was reasonable accommodation which the respondent had refused, they ceased, by virtue of section 193(7), to be responsible for housing her, and consequently were entitled to obtain possession of the flat. However, and fourthly, because the Council had failed to “notify [the respondent] accordingly within 21 days of the refusal”, as required by section 193(7)(b), the Council could not rely on section 193(7), and consequently they remained under a duty to house the respondent. Fifthly, as an order for possession would result in the Council making the respondent homeless, in circumstances where they were under a duty to house her, this was one of those exceptional cases in which article 8 could be invoked to defeat a claim for possession.

Once it was (correctly) accepted on behalf of the respondent that the Council had validly determined her contractual tenancy of the flat by the Notice to Quit, and that she had no claim to any statutory security of tenure, it would obviously require exceptional circumstances to justify the court refusing the Council an order for possession of the flat. The respondent contends that the judge was right to conclude that such exceptional circumstances existed here. The only ground upon which it is contended that such exceptional circumstances exist, and no order for possession should be made, is that the party seeking possession, namely the Council, was still under a duty to house the respondent.

The first issue it is convenient to consider is whether the judge was right in his conclusion, based on section 193(7), that the Council had not ceased to be under a duty to house the respondent. It seems clear that the requirements of s193(7)(a) were satisfied, in that the respondent had “been informed of the possible consequence of refusal” in the letter dated 21 January 2002 and the accompanying standard form letter, and she had refused “an offer of accommodation”. It also appears clear the first part of paragraph (b) was satisfied, in that the Council were “satisfied that the accommodation was suitable for [her] and that it was suitable for [her] to accept it”.

The question to be determined, therefore, is whether the Council had “notif[ied her] accordingly within 21 days of the refusal” within the meaning of section 193(7)(b). The respondent’s refusal, at least for the first time, occurred on 24 January 2002: in that connection, the only possible notification on which the Council could rely must be the letter of 25 January 2002. With some reluctance, I have come to the conclusion, in agreement with the judge, that that letter did not amount to sufficient notification. I reach that conclusion with reluctance, because by sending that letter, the Council made the position clear to the respondent (especially when one reads the letter together with those of 21 January), and the Council were doing more to help the respondent than was required of them under section 193: they were giving her a second chance.

However, what the Council had to have done to satisfy the second part of section 193(7)(b) was to send a letter, within 21 days of her refusal of 3 Brimsdown House, saying that they were satisfied that it was suitable for the respondent and reasonable for her to accept. There is a powerful argument that the letter of 25 January 2002 had that effect, at least by implication, especially when read with the two letters of 21 January, and in light of the respondent’s oral rejection of 3 Brimsdown House on 24 January. However, even allowing for the fact that the Council were according the respondent more than she was strictly entitled to, I consider that the letter of 25 January did not quite satisfy the requirements of section 193(7)(b).

When considering whether a letter from a local housing authority to an individual satisfies a statutory requirement such as that in section 193(7)(b), the normal principles of construction apply – both when interpreting the statute, and when interpreting the letter. The stipulation at the end of section 193(7)(b) is clear, and must be satisfied before the Council could claim to be free of its duty to the respondent. I accept that one should not be pedantic, but, particularly bearing in mind that the letter was addressed to a relatively unsophisticated person by a relatively large entity employing housing and legal experts, it is impossible to justify a particularly indulgent attitude to its interpretation.

I turn to the text of the letter of 25 January 2002. It referred to the Council “making a reasonable and suitable offer of permanent accommodation”, but it made no reference to the opinion that it was or would be reasonable for the respondent to accept the accommodation. Further, the tenses used in the letter (“will cease” and “will have ceased”), coupled with the renewal (by way of an extension to 28 January 2002) of the offer, can fairly be said to have been indicative of the fact that the Council were not treating the letter as a notification that would put an end to their duty under section 193 to house the respondent.

On a fair reading, the letter of 25 January 2002 was a proleptic communication as to the Council’s conclusion if 3 Brimsdown House was rejected again. However, section 193(7)(b) envisages such a communication after the rejection. While the letter was written after the first rejection, it was directed to the Council’s conclusion if there was a (further) rejection in the future. Further, the section requires the communication to state both that “the accommodation was suitable” for the person concerned, and that “it was reasonable for him to accept it”. While I do not suggest that the wording of the communication must slavishly follow those forms of words, it must, in my view, convey both points. I do not think that the 25 January letter quite achieves that: it merely refers to 3 Brimsdown House as amounting to a “reasonable and suitable offer of permanent accommodation”.

It is fair to say that the mere fact that the Council might have chosen to give the respondent another chance to accept the offer of 3 Brimsdown House, even though they were no longer statutorily obliged to do so, would not have been enough, in my view, to prevent the letter being sufficient notification under section 193(7)(b). However, particularly in light of the way in which the earlier part of the letter was expressed, it appears to me that the letter of 25 January 2002 operated as an extension or renewal of the original offer, and that that extended or renewed offer was finally refused by the respondent’s letter of 28 January 2002. The Council served no notification within 21 days of that letter, and consequently it seems to me that the judge was right in his conclusion that the second part of section 193(7) (b) was not satisfied.

However, that is by no means the end of this appeal. Ignoring, for the moment, the precise terms of section 193(7), it must have been clear to the respondent, from what was said in the letter of 25 January 2002, that if, as she did by her letter of 28 January 2002, the respondent rejected 3 Brimsdown House, the Council would regard themselves as no longer bound by any duty to house the respondent, and, in particular, as no longer under a duty to let the respondent remain in the flat. By the subsequent letter of 22 May 2002, the Council effectively affirmed that view, by saying, in clear terms, that they were no longer obliged to house the respondent, and that she had to vacate the flat.

In seems to me clear, in these circumstances, that, by 22 May 2002 at the latest, the Council communicated to the respondent, in unambiguous terms, that they had decided that they owed no further duty to house her pursuant to section 193. Further, that was a decision which appears to me to have fallen within section 202(1), as it was a “decision of a local housing authority as to what duty (if any) is owed… under sections 190 to 193…”, and therefore within para (b). (This view is the same as that expressed by Chadwick LJ in Warsame -v- Hounslow LBC [2000] 1 W.L.R. 696 at 704H-705B and 706B-C). Indeed, it also fell within para (f) of section 202(1), as it was a “decision ... as to the suitability of accommodation ...”. (Again, Chadwick LJ took the same view in Warsame at 706A-B). Accordingly, it was a decision which the respondent was entitled to request the Council to review pursuant to section 202; such a request for a review would have had to have been made within 21 days of 22 May 2002 (“or such longer period as the [Council] may in writing allow”). No such request was made within 21 days of 22 May 2002, or, indeed, before the proceedings for possession were instituted; indeed even now, no such request has been made.

There is an alternative analysis, which was that adopted by the Council, and it is an analysis which is arguably correct, although (for reasons already given) I do not think that it is. That analysis is that the letter of 25 January 2002 was an appropriate notification under section 193(7)(b), and that, albeit somewhat generously to her, the respondent’s letter of 28 January 2002 should be taken as a request for a review of that decision under section 202. On the basis of that analysis, the letter of 22 May 2002 was the Council’s decision on the review, which was to uphold the notification. If that is correct, then the respondent would have had 21 days to appeal the decision on the review to the County Court under section 204. Such an appeal would have had to have been brought within 21 days of 22 May 2002, subject to the possibility of an extension of time being granted under section 204(2A) of the 1996 Act as amended, which could only be relied on here if it applied retrospectively, given that it came into effect 31 July 2002. Again, there was no appeal under section 204 within the prescribed 21 days, or, indeed, before the instant proceedings were brought. Even now, it can be said that no such appeal has been brought, but in my view, the respondent’s ground for resisting the Council’s possession proceedings could, at least in principle, have been treated as such an appeal.

Part VII of the 1996 Act requires a housing authority to be the initial decision- maker on questions concerning a person’s homeless status and housing rights, and it includes a tolerably clear appeals procedure, with relatively short and fairly strict time limits, for the benefit of a person dissatisfied with any decision of the authority. Where, as here, possession proceedings are brought by the authority, and the defence involves impugning a decision of the authority under Part VII of the 1996 Act, which could have been, but was not, appealed, and the time for appeal has long since expired, it appears to me to be wrong in principle that the court hearing the possession action should be able freely to reconsider, and if necessary to reverse, the authority’s decision with regard to its duty.

Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case section 193, without taking the concomitant burden, namely the procedure and time limits in sections 202-204.

That is how the point appears to me in principle. The practical consequences do not cause me any real concern. The 21 day time limit in sections 202 and 204 are (albeit only since 31 July 2002 so far as section 204 is concerned) capable of extension in an appropriate case. Housing authorities need to know where they are with regard to the allocation of their housing stock. In many areas, demands are great and resources small, and the need for certainty and finality is self-evident. Furthermore, it is not as if a determination such as that made by the Council in the present case is permanent for all purposes: see section 193(9).

Accordingly, the judge ought to have asked himself was whether it was too late for the respondent to request a review (on the basis, as the judge thought, correctly in my view, that the letter of 25 January 2002 was not a sufficient notification) under section 202, or to bring an appeal in the county court (on the basis that the letter of 25 January was a sufficient notification) under section 204. The respondent should have requested a review (or brought an appeal) by 15 June 2002 (allowing a couple of days for delivery of the letter of 22 May). It would appear that the earliest time at which any challenge was made on her behalf, to the Council’s decision in the letter of 22 May 2002, was April or May 2003, more than ten months late.

The contention that she was some ten months late in appealing to the court (as opposed to having failed to request a review altogether) could be a dangerous submission for the respondent to make on the basis of the following argument. It would only be appropriate for her to bring the matter before the court if section 204 applies, and section 204 can only apply if there has been a review; the only review to which she can point is that contained in the letter of 22 May 2002, and if that is the review, that can only be on the basis that the letter of 25 January 2002 constitutes notification of a decision (because otherwise there is nothing to review). If that is correct, then the only basis upon which she could challenge the Council’s decision that they are no longer liable to house her as a matter of law (and she can only appeal under section 204 on a question of law) falls away, because that ground would be the absence of any notification. On the other hand, if, as is therefore fundamental to her case, the letter of 25 January 2002 is not a notification then the letter of 25 May 2002 must be the originating decision, in which case the proper course would be to request a review under section 202, which she has not even yet done more than two and a half years after the decision.

In my view, it is unnecessary to decide whether the argument I have just been discussing is correct. It seems to me that, on any view, the respondent should have requested a review of, or appealed, the decision of the Council by 15 June 2002. However, she did not challenge the decision until well into 2003, and then only through the courts because the Council had begun possession proceedings. There is no apparent reason or excuse for her not having sought a review, or appealed, in time, particularly as the fact that there was a 21 day period within which to request a review was made absolutely clear to her in the standard form letter of 21 January 2002, and the 21 day period within which she had to appeal was spelt out clearly in the letter of 22 May 2002.

It seems to me that, in the light of the way in which the Council expressed themselves in the letter of 22 May 2002, it would have been open to the respondent (subject to any time limit problem) thereafter, at her election, either to request the Council for a review (on the basis that that is the strictly correct analysis), or to appeal to the County Court (on the basis that this is what the 22 May letter said she could do). Given that she has, even now, not requested a review, and that she only brought the matter before the County Court (albeit by way of a defence to the claim for possession) in 2003, she would probably be in a stronger position if she were treated as having appealed to the County Court, when she raised her grounds of defence to the claim for possession. Assuming, probably correctly, that she could, in principle, invoke section 204(2A)of the 1996 Act as amended in order to extend time, she has not come forward with any reason, let alone any “good reason” for her failure to bring the appeal in time.

There is nothing unfair in these observations. The Council, by giving the respondent a second chance to take up the offer of 3 Brimsdown House, had more than fulfilled their primary duty to offer the respondent accommodation. The Council’s view that their duty to the respondent was at an end was a reasonable view, honestly and openly arrived at. It was clearly communicated to the respondent, together with equally clear advice as to her rights to request a review or to bring an appeal, and as to the time limits involved. Some time after the period for requesting a review or bringing an appeal had expired, the Council acted on the assumption that their decision was correct, and was not being challenged, by bringing these very proceedings.

In my opinion, the judge could have properly proceeded with the hearing on the basis that he had an application (albeit not in the correct form, or even expressed as such) for permission to appeal out of time under section 204 against the Council’s decision that it owed the respondent no further duty to house her under Part VII of the 1996 Act. Had he so proceeded, I consider that he would have been bound to conclude that it would be wrong to allow the respondent to appeal so long out of time, in the absence of any satisfactory, or, indeed, any, explanation for the delay. As a result, he would have dealt with the Council’s claim for possession of the flat on the basis that their decision that they owed no further duty to house the respondent was correct, whereupon the whole basis for her defence to the claim would have fallen away.

I should briefly deal with three other points which arose during argument. First, what would have happened if, at the hearing of the possession claim, the judge had been entitled, on proper grounds, to extend the time for the respondent to appeal the Council’s decision in the letter of 22 May 2002? In that event, he could have considered the question of whether the Council still owed a duty to house the respondent. If he had decided the Council owed such a duty, then I am not convinced that, even in such circumstances, it would necessarily have been right to dismiss the claim for possession of the flat. As I have mentioned, there is no doubt that, as a matter of private law, the Council would plainly have been entitled to possession. It is true that, if the judge had entertained a section 204 appeal and had decided that the Council remained under an obligation to house respondent, the Council would, indeed, have been obliged to house her, but there is nothing in the 1996 Act to suggest that they would have been obliged to continue to house her in any particular accommodation.

I do not propose to go into that question much further, let alone to decide it, because it was by no means fully argued, not surprisingly as it does not arise. If it had arisen, I strongly suspect that, faced with the decision of the judge that they were still under an obligation to house the respondent, the Council would not have insisted on pressing for - or executing - an order for possession without providing her with alternative accommodation. For instance, they might have pressed for an order for possession on the basis of an undertaking that they would not execute the order without the respondent having the right to come to court to ask for a stay of execution until appropriate alternative accommodation was made available to her.

Furthermore, by the time the matter was before the judge, section 204A of the 1996 Act as amended was in force. This section, also introduced by the 2002 Act, filled a lacuna which previously existed. Section 204(4) provides:

“Where the authority were under a duty under section… 200 to secure that accommodation is available for the applicant's occupation, they may… secure that accommodation is so available-

(a)

during the period for appealing under this section against the authority's decision, and

(b)

if an appeal is brought, until the appeal (and any further appeal) is finally determined.”

Until section 204A was enacted, where an applicant was appealing a decision by the authority that they owed him no duty, and the authority decided, under section 204(4), not to house him during the currency of the appeal, there was no statutory procedure where he could challenge that decision. Section 204A now empowers an applicant to appeal such a decision, and, on an appeal, the court can, if appropriate, effectively order the authority to exercise its powers under section 204(4) in the applicant’s favour. Accordingly, if, but only if, the respondent had sought to challenge the Council’s decision that it owed her no further section 193 duty, and there had been good grounds for permitting such an appeal out of time, and the Council had threatened to evict the respondent from the flat in the meantime, then under section 204A she could have asked the judge to order the Council, in effect, to house the respondent in the meantime (thereby avoiding any adverse consequences of an order for possession in any event).

Secondly, I do not consider that article 8 could, in any event, play any part in these proceedings. Effectively for the reasons already given, I consider that the domestic law not only contains all the substantive rights to which the respondent is entitled, but it also contains all the procedural provisions by which those substantive rights are to be determined. It cannot be said, for instance, that the respondent has not been accorded her article 8 rights, because, as a result of her failure to comply with the time limits for bringing an appeal, she is landed with the decision of the Council which, as I see it, would probably have been reversed if she had taken advantage of her statutory right of appeal.

Further, while it is unnecessary, and indeed would be inappropriate, to express a view in absolute terms, I find it hard to envisage circumstances in which article 8 would be of any real assistance to a person wishing to resist a claim for possession in cases such as this. I draw support in this connection from the reasoning of the majority (and in particular Lord Millett and Lord Scott of Foscote) in London Borough ofHarrow -v - Qazi [2004] 1 AC 983. Further, this court, in a number of cases subsequent to Quazi, has manifested an approach consistent with that view: see Bradney -v- Birmingham City Council [2003] EWCA Civ 1783, at para 15, London Borough of Newham -v- Kibata [2003] EWCA Civ 1785, at paras 25 and 54, and Kay -v- London Borough of Lambeth [2004] EWCA Civ 926, at paras 100-103. It is true that in Sheffield City Council –v- Smart [2002] HLR 639 at paras 43 and 44, Laws LJ said that there might be exceptional circumstances in which article 8 may have some function in relation to a claim for possession by an authority which contended that their section 193 duty had determined, but that was before the House of Lords decided Qazi.

Thirdly, as a result of the discussion during the hearing of the appeal, the respondent has issued an application for judicial review of the Council’s decision to seek possession of the flat. The application is based on the contention that the Council was, at the time of the decision, “subject to a duty to accommodate [her] pursuant to S193 Housing Act 1996 (unamended)”. It seems to me that that application must fail effectively for the same reason that the judge should not have permitted a section 204 appeal to proceed. The point upon which the judicial review is premised is, of course, the same as that which found favour with the judge, and, as I have already explained, I think it is right, although the Council’s view to the contrary is not without force. However, I do not consider that it is a point which can be raised as a ground for seeking judicial review of the Council’s decision to seek possession; through the medium of sections 202 to 204, the legislature has decided that the point should be determined by the County Court, and not by the High Court. Further, as the front door of a section 204 appeal against (or a section 202 review of) the Council’s decision, that they are no longer under a duty to the respondent, is time barred, it cannot open to the respondent to raise the point out of time through the back door of a judicial review application, any more than through the medium of a defence to a claim for possession, at least in the absence of very unusual facts.

In any event, even it was otherwise sustainable, the application for judicial review appears to me to have been made much too late. In expressing that view, I accept that it may well be wrong to take account of the whole of the delay from May 2002 to November 2004, because that delay may be explicable by the fact that the respondent succeeded before a District Judge and Judge Hornby. However, this could not serve to excuse the delay before she raised her defence in these proceedings. Again, there has been no satisfactory explanation for that delay, and given that judicial review proceedings should be brought within 3 months, it seems to me that there is a heavy onus on her to justify the delay between August 2002 (when the 3 months for bringing judicial review proceedings would have expired) and May 2003. The judicial review application requires the applicant to give “grounds for extension of time”, and the explanation proffered on behalf of the respondent was that it was originally thought that the matter should be dealt with in the County Court. That is not of much assistance to her, because if the matter was to be dealt with in the County Court, it should have been by way of section 204 appeal, which has a 21 day time limit (which at the relevant time was inflexible), whereas the judicial review time limits at all material times has been three months (albeit that it is flexible).

I should also consider the position if, contrary to my view, there had been arguably good grounds for a judicial review of the Council’s decision to issue the possession proceedings. On that basis, it seems to me that the judge would have been fully justified in staying the possession proceedings while the judicial review proceedings were undertaken: see Avon County Council –v- Buscott [1998] 1 All ER 841 at 845G-H per Lord Donaldson MR, and at 846E-H per Parker LJ.

In this connection, inconvenient though it may be, I do not consider that it would have been open to Judge Hornby to have entertained judicial review proceedings himself, despite the contention that Laws LJ indicated otherwise at paras 40, 44 and 45 in Sheffield. The County Court is a creature of Statute, and has no inherent jurisdiction. Further, section 38(3)(a) of the County Courts Act 1984 specifically excludes from the County Court the power “to order mandamus, certiorari or prohibition”. Of course, where the order sought falls within the ambit of a specific Statutory power, such as that contained in section 204, especially sub-section (3), nothing in the 1984 Act would inhibit the making of the order. The observations of Laws LJ were directed only to an unusual case, namely, where circumstances calling into question the authority’s decision to proceed with the claim for possession only arise after the claim has started. Even in such a case, I find it difficult to see how the County Court could have a judicial review function, unless the person against whom possession is sought could bring himself within the ambit of Wandsworth Borough Council –v- Winder [1985] AC 461, as discussed by Laws LJ in para 44 in Sheffield.

In these circumstances, I would allow the Council’s appeal, and make an order for possession of the flat. I would invite submissions as to the period for which the order should be suspended, if the parties are unable to agree.

I agree.

I also agree.