Al Ahmed v London Borough of Tower Hamlets

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:

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

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

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:

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:

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

The judge’s main reasons for finding that Judge Hellman had misdirected himself were then set out at [15]-[17]:

Seeking to analyse the basis of the Judge’s conclusion that there was “good reason” in the present case it appears that in paragraphs 14 and 15 of his judgment he reached upon the conclusion that it was reasonable for the Respondent to rely upon the guidance he had obtained from Crisis and wait for a legal representative “because without a legal representative this appeal was never going to go anywhere”. This was in the light of the Respondent’s “limitations”, in that what was required was a “technical legal document”, in respect of which “he probably had no idea what it needed to say”. In reaching the conclusion that these matters amounted to a good reason for the appeal being brought out of time in my view the Judge very clearly went wrong and misdirected himself as to what was required in order to bring this appeal. Firstly, as set out above, the fact that the Respondent was unrepresented had little, if any, part to play in providing good reason. In so far, therefore, as the Judge relied upon that position, and suggested that the Respondent “needed legal representation”, his approach was illegitimate. In reality, as set out above, what was required was the issuing of an Appellant’s Notice and then the provision of grounds setting out the basis of the Respondent’s complaint that there was an error of law in his case. There was evidence before the Judge (and in the material before this court) demonstrating that the Respondent not only had access to a computer, but also that he was more than capable of expressing himself in writing and articulating his concerns. In my view there was no basis for the Judge to conclude that the appeal could not be commenced without legal representation, and that in the particular circumstances of this Respondent he was unable to provide a document expressing his complaints in relation to the decision reached in a manner that would enable to court to understand the errors of law which were relied upon.

Whilst the Judge suggested that the Respondent’s reliance upon the guidance from Crisis was a good reason for the delay in bringing the proceedings the Judge seems to have exaggerated the role which Crisis were playing in the

The judge went on to consider further arguments advanced in a respondent’s notice to the effect that good reason would arise from the need to be granted legal aid in order both to prosecute the appeal and to be properly protected from any adverse costs decision. He said that there was some degree of read across between his observations in respect of litigants who do not have professional representation and the contention that time should be extended and discretions exercised so as to enable them to have legal representation by way of legal aid. He referred to R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286, [2016] 1 WLR 723 (“Kigen”), in which it was held, consistently with the reasoning in Hysaj, that the fact that a claimant had applied for legal aid and had been waiting for a decision from the Legal Aid Agency was not a good reason for failure to comply with the time limit in the Upper Tribunal rules for the making of an application for reconsideration of a decision refusing permission to apply for judicial review. He concluded at [20]:

Mr Al Ahmed now appeals to this court against the order of Dove J. Permission for a second appeal was granted by Males LJ. Permission was subsequently granted for Shelter to intervene in the appeal by way of written and oral submissions and to adduce evidence in the form of a witness statement by Ms Polly Neate, its chief executive.

The essence of Mr O’Sullivan’s submissions for Mr Al Ahmed is that Judge Hellman directed himself correctly and made findings of fact that were reasonably open to him on the evidence, and that there was therefore no basis for Dove J to interfere with the judgment and to substitute a different conclusion on the issue of good reason.

For the Council, Mr Baumohl supports Dove J’s decision and reasoning. By a respondent’s notice he seeks in addition to put forward a different reason why the decision is said to have been correct. He argues that Judge Hellman dealt only with whether there was good reason for the appellant’s failure to bring the appeal in time and did not deal with the separate question in s.204(2A)(b) as to whether there was good reason for the delay in applying for permission for the appeal to be brought out of time. No such argument was, however, addressed to the courts below, where the two elements of s.204(2A)(b) were simply run together as a single issue concerning good reason for the delay. In my judgment it is far too late to raise the argument for the first time now on this second appeal, and I say no more about it.

Shelter does not take any position on the decision reached in Mr Al Ahmed’s particular case. Its intervention is prompted by concerns about the reasoning in Dove J’s judgment which in its submission is inconsistent with the statutory scheme under the 1996 Act and sets a concerning precedent that fails to take into account the frailties of homeless applicants and the particular barriers they may face in obtaining legal assistance and that will result in inconsistent outcomes across the country. As to the setting of a precedent, Shelter points to Emambee v London Borough of Islington

Ms Neate’s witness statement for Shelter is a lengthy document. It covers the practical difficulties involved in a homeless applicant issuing a notice of appeal in person; the wider difficulties and circumstances that homeless persons often have to contend with; and the difficulties that homeless applicants face in finding solicitors who are able to advise and represent them in homeless appeals, and the lack of capacity in the housing advice sector. It also sets out the limited results of an exercise under the Freedom of Information Act 2000 seeking to establish the advantages to homeless applicants of being represented when bringing a s.204 appeal, and the impacts on court time and costs. I stress that this evidence was not before the courts below and that it does not therefore bear directly on Judge Hellman’s decision as to good reason or on Dove J’s criticisms of that decision. But it has not been challenged and it underpins Shelter’s concerns about aspects of Dove J’s judgment and its effect on future cases. I therefore think it helpful to provide a somewhat fuller summary of some of the matters covered.

As to practical difficulties in bringing an appeal, the witness statement points to the limited information provided in review letters regarding the right to bring an appeal and how to go about it; and to Shelter’s experience that review letters are hard for homeless applicants to understand and do not clearly indicate what issues might be open to appeal. Further, applicants who lack legal advice and are themselves without knowledge or experience of housing law are more likely to focus on the facts of their case rather than the law when faced with a negative decision; and it is very rare to find a homeless applicant who is without legal advice or assistance but is able to focus appropriately on how housing law and public law principles apply to the facts of their case in order properly to assess and formulate a point of law for the purpose of bringing an appeal. Those who have been placed in temporary accommodation will tend to focus on the imminent loss of that accommodation and the need to undertake a number of stressful and time/resource heavy tasks in a short period of time, rather than on the need to bring an appeal. It is said that a number of common difficulties or shared characteristics of those experiencing homelessness (poverty, mental ill health, etc.) contribute to delaying or preventing them from being able to cope with life events and to manage their affairs; and that it does not necessarily follow that because someone who is homeless is articulate and can express himself or herself verbally and on paper, he or she therefore has the ability to take and implement a decision to issue a complex court appeal.

Also in relation to the practical difficulties of bringing an appeal, the witness statement refers to the limited information freely available which might assist applicants in working out how to issue an appeal and how to formulate grounds of appeal. It provides evidence that accessing information on the internet for applicants who are without accommodation or are living in temporary accommodation and with very limited financial resources can be incredibly difficult; and examples are given of the difficulty of identifying any useful material even if an applicant is able to access the internet. Reference is made to the difficulties in finding a solicitor; to the fact that parts of the notice of appeal, Form N161, are not at all suited to the circumstances of a s.204 appeal, which makes it difficult for homeless applicants to understand and complete the form; and to the need to find access to a computer and printer and to draft, complete, print, photocopy, post (and pay for recorded delivery) or physically take to the local county court a covering letter, the notice of appeal, the grounds of appeal and the fee or fee exemption form (with attached evidence of income), and to provide copies of the documents to the local authority.

One section of the witness statement deals with the serious diminution in the provision of advice for housing law matters under legal aid contracts as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Homeless applicants should still qualify for a full legal aid certificate to cover the work necessary for a County Court appeal, provided that they meet the Legal Aid Agency means and merits tests. But many housing cases were taken out of the scope of legal aid, and the resulting shrinkage in the number of providers means that there are now areas of the country where it is almost impossible to get face to face legal advice in housing law – there are housing advice deserts throughout the country. Even those who are still entitled to legal aid will often not be able to find someone to provide the service they need. Those housing advice providers that are still left are facing increased demand and often do not have the capacity to assist everyone who approaches them for help.

Prior to the insertion of s.204(2A) into the 1996 Act by the Homelessness Act 2002, the 21 day time limit in s.204(2) was absolute. In R v Brent LBC, ex parte O’Connor (1998) 31 HLR 923 at 925, Tucker J described it in these terms:

The insertion of s.204(2A) ameliorated the position but did so on a relatively narrow basis. The time limit for bringing an appeal remains at 21 days. The court’s discretion to permit an appeal to be brought out of time arises for consideration only if the court is satisfied that there is or was a good reason for the delay. As Tugendhat J put it in Short v. Birmingham City Council [2005] EWHC 2112 (QB), [2005] HLR 6 at [26], “if the judge is not satisfied that there was good reason for an applicant’s failure to bring an appeal in time and for any delay in applying for permission, then he cannot go on to consider the merits.”

In itself, however, the requirement of “good reason” provides a straightforward statutory test to which no gloss is or should be applied. That has been the consistent, and in my judgment correct, approach of the courts to s.204(2A) prior to the present case. Thus, in Barrett v The Mayor and Burgesses of the London Borough of

Shelter’s submission, which I accept, is that by his reasoning in relation to unrepresented parties Dove J has departed from the approach in those previous cases and has introduced an unjustified restriction on the circumstances that can be taken into account in deciding whether an applicant has a good reason within s.204(2A). Reference is made in particular to the passage at [14] of his judgment where Dove J states that “[i]t is clear … 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”. In the middle of [16] he refers to that proposition as the first of his reasons for finding that Judge Hellman misdirected himself in relying on the view that Mr Al Ahmed needed legal representation. Thus he treats the point as one of general application which limits what may qualify as a good reason for the purposes of the statutory test.

In adopting that approach the judge was heavily influenced by the reasoning in Hysaj, and in relation to a specific argument about delay in obtaining legal aid he was similarly influenced by Kigen (see his judgment at [13]-[14] and [19]-[20]). He did not have the benefit, however, of the submissions made to us by Shelter as to why such cases are distinguishable and should not be followed in the present context.

Hysaj concerned an application under CPR 3.1(2)(a) to extend the time limit under CPR 52.4 for filing an appellant’s notice. The court held that the principles to be derived from Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 (“Mitchell”) and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 (“Denton”), relating to applications under CPR 3.9 for relief from sanctions, should be applied by analogy to applications for an extension of time under CPR 3.1(2)(a). Those principles, set out most clearly in Denton, reflected the stricter approach to be taken towards failures to comply with the Civil Procedure Rules following the reforms resulting from Sir Rupert Jackson’s review of civil litigation costs. In considering how the principles applied to litigants in person, Moore-Bick LJ stated at [44]:

Kigen concerned an application under the Tribunal Procedure (Upper Tribunal) Rules 2008 for an extension of the time limit prescribed by those rules for applying for reconsideration of a decision refusing permission to apply for judicial review. The court held that the situation was analogous to filing a notice of appeal under CPR 52.4 and that in such a case the court should adopt the approach set out in Denton, applying the guidance given in Hysaj. The fact that the claimant had applied for legal aid and had been waiting for a decision from the Legal Aid Agency was held not to be a satisfactory explanation for failure to comply with the time limit in the rules.

There are several reasons why the Mitchell/Denton principles, as adopted by analogy in Hysaj and Kigen, should not be applied to the assessment of whether there is a good reason under s.204(2A) of the 1996 Act.

First, s.204(2A) lays down a statutory test, “good reason”, the content and effect of which cannot have been changed by the strict approach adopted in recent years by the courts towards failures to comply with the CPR or with the corresponding rules of the Upper Tribunal. Although appeals under s.204 are brought in accordance with the procedural rules in the CPR, those rules do not define the test of good reason; and neither changes to the rules themselves nor changes in the court’s approach towards failure to comply with them can alter the statutory test. I have referred above to the consistent approach taken previously by the courts towards that statutory test, to the effect that all the circumstances are to be taken into account without applying any particular presumptions. That approach should not be qualified by importing the Mitchell/Denton principles into it. In Short v Birmingham City Council (cited above) at [26], Tugendhat J observed that “on the wording of the 1996 Act s.204(2A) it is not open to a judge to have regard to the criteria set out in CPR 3.9, or any criteria, other than those specified in terms in the section”. He was referring to an earlier version of CPR 3.9 than that considered in Mitchell and Denton, but his observation has equal validity in relation to the principles laid down in those cases and applied in analogous contexts under the CPR and the Upper Tribunal rules.

The inappropriateness of applying the Mitchell/Denton principles to the statutory test in s.204(2A) is underlined by the fact that under those principles the question of good reason is only one factor, and not necessarily a determinative factor, in the assessment to be made. The Mitchell/Denton approach, as set out in Hysaj at [38] is this:

That different approaches may be taken in different contexts is illustrated by Green v Mears Ltd [2018] EWCA Civ 751, [2019] ICR 771, in which it was held that the even stricter approach previously applied to applications for an extension of time for appealing to the Employment Appeal Tribunal was not to be treated as superseded by the Mitchell/Denton principles. As Underhill LJ said at [40], “[h]ow strict an approach should be taken to non-compliance with time limits is not a question to which one answer is necessarily better or worse than another …. A balance has to be struck between two interests which weigh on opposite sides …. Different courts or tribunals may legitimately choose to strike the balance differently.” In this case the point is an even stronger one, in that the test of good reason in s.204(2A) has been laid down by Parliament and it is not open to the courts to strike a different balance by reading limitations into that test.

The same point may be made about Barton v Wright Hassall llp [2018] UKSC 12, [2018] 1 WLR 1119, which concerned an application by the claimant, a litigant in person, for an order under CPR 6.15 validating service of the claim form retrospectively. Lord Sumption stated at [18] that a lack of representation will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. He pointed to the “disciplinary factor” in the cases on relief from sanctions, a factor which was less significant in the case of applications to validate defective service of a claim form. He continued:

The context of s.204(2A) is, moreover, materially different from that under consideration in the cases where it has been held to be reasonable as a general rule to expect litigants in person to comply with relevant rules of court. I have summarised the evidence placed before this court by Shelter. It presents a bleak picture of the difficulties faced by homelessness applicants in bringing an appeal under s.204 of the 1996 Act without legal advice and representation, and of the difficulties they may face in finding someone to provide those services under legal aid, especially as a result of the post-LASPO shrinkage of the housing advice sector. Everything will of course depend on the circumstances of the individual case, but it would be both surprising and unfair if difficulties of that kind could not be taken fully into account and given appropriate weight in the assessment of whether there was a good reason for failure to bring an appeal in time and, to the extent that it arises as a separate issue, for delay in applying for permission to bring an appeal out of time.

In no way does that view give carte blanche to delay. The basic rule remains the 21 day time limit, with which Parliament must have intended applicants in general to comply. Compliance may present little difficulty in practice if an applicant already has a solicitor acting for him in relation to the review (as might have been the position in Mr Al Ahmed’s case had it not been for a breakdown in the relationship between him and his solicitor). Where an applicant relies on the fact that he was unrepresented and was seeking legal aid as a reason for non-compliance, the circumstances will need to be examined with care, including scrutiny of the diligence with which he acted in seeking legal aid. And even if the court is satisfied as to good reason, that simply opens up a discretion to give permission for an appeal to be brought out of time. At that stage the court is able to take into account all other relevant considerations, including the position of the local authority, in deciding how to exercise its discretion.

I turn to consider the circumstances of the present case. Judge Hellman’s assessment that there was a good reason within s.204(2A) for Mr Al Ahmed’s delay in bringing the appeal was an evaluative judgment with which an appellate court should be slow to interfere. For the reasons given below, I do not think that there was any proper basis for Dove J to interfere with it.

As appears in particular from [16] of his judgment, Dove J’s finding that Judge Hellman misdirected himself is based on two main strands of reasoning: (1) the general point that the fact that Mr Al Ahmed was unrepresented “had little, if any, part to play in providing good reason”; and (2) his view that “there was no basis for the Judge to conclude that the appeal could not be commenced without legal representation, and that in the particular circumstances of this Respondent he was unable to provide a document expressing his complaints in relation to the decision reached in a manner that would enable the court to understand the errors of law which were relied upon”.

I have already made clear my disagreement with the first strand: the fact that Mr Al Ahmed was unrepresented and was seeking legal aid was a factor properly taken into account by Judge Hellman.

The second strand rests, in my judgment, on a misunderstanding of Judge Hellman’s reasoning or errs in rejecting that reasoning; and it goes against findings of fact reasonably made by the judge on the evidence before him.

At [14]-[15] of his judgment, Judge Hellman accepted in terms that the appellant could have filed a notice of appeal in time. His point, however, was that Mr Al Ahmed “probably had no idea what it needed to say” and reasonably sought assistance from Crisis which took the view, also reasonably, that he needed legal representation. Judge Hellman clearly did not accept that Mr Al Ahmed was able to identify without legal representation even the substance of the two grounds of appeal that were advanced once he did have legal representation. He pointed to the contrast between what Mr Al Ahmed wrote in his lengthy emails to the Council (which got nowhere near to identifying the relevant points of law) and what was set out succinctly in the grounds of appeal actually filed. Thus, the judge was looking, perfectly reasonably, at the practicalities of the matter. In his view there was no useful purpose in filing a notice of appeal until Mr Al Ahmed had legal representation and knew what, if any, points of law could be advanced: “without a legal representative this appeal was never going to go anywhere”. There was no error of law in any of this, and it was based on factual findings for which there was an adequate evidential foundation in the material to which the judge referred.

At [17] of his judgment, Dove J criticises Judge Hellman’s findings as to the extent of Mr Al Ahmed’s reliance on Crisis and states that Mr Al Ahmed could not rely on Crisis to draft and issue the appeal for him. All this leads back in to Dove J’s view that it was for Mr Al Ahmed to ensure compliance with the time limit and that it was within his capabilities to do what was necessary to bring the appeal in time. Again, however, Judge Hellman’s findings as to the extent and reasonableness of Mr Al Ahmed’s reliance on Crisis were in my view properly open to him on the evidence; and the question whether Mr Al Ahmed could have brought a meaningful appeal in time has been sufficiently covered above.

Whilst I have concentrated on the specific circumstances of Mr Al Ahmed’s case and on Judge Hellman’s findings in that regard, I think it right to add that if and in so far as Dove J was basing himself on a wider proposition that homelessness applicants are able as a general rule to draft a notice of appeal and adequate grounds of appeal without legal representation (cf. “I am unable to accept the contention that it is necessary for a lawyer to be instructed before adequate grounds of appeal, sufficient to bring the appeal before the court, can be drafted”, at [15] of his judgment), such a proposition is in my judgment mistaken. It is not supported by the evidence before Judge Hellman and it is contradicted by the evidence placed before this court by Shelter.

Whilst counsel’s submissions raised the question of what is technically required in order to bring a competent or valid appeal under s.204, in particular whether it would suffice to lodge a bare notice of appeal without any grounds of appeal (or any grounds raising any point of law), I regard that as an arid dispute which in any event does not need to be resolved in this case.

I would allow the appeal and reinstate Judge Hellman’s order.

I agree.

I also agree.