Markou v The London Borough of Tower Hamlets, unreported 24 June 2016

June 10, 2017

When is an Appeal “brought” for the purposes of section 204(2) of the Housing Act 1996 – the importance of filing the grounds of appeal and, if necessary of properly explaining and evidencing the reasons why it was not possible to file an Appellant’s notice and grounds of appeal within the 21 day time limit

 HHJ Luba QC dismissed an application for permission to bring a homelessness appeal out of time pursuant to section 204(2A)(b) of the Housing Act 1996.  That section gives the court jurisdiction to grant permission when an appeal has been brought late, where the court considers that there is good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for the permission.  The onus is on the Appellant to establish good reason for the failure and the delay.

The review decision that the appellant had sought to appeal had been communicated to him on 12 January 2016 by email. By virtue of section 204(2) of the 1996 Act, he had 21 days from this date to bring any appeal.  The appellant’s notice had, in fact not been filed until 12 February 2016 and was therefore late.  What is more, when filed the appellant’s notice was not accompanied by any grounds of appeal.  It merely stated that they were to follow within 21 days.  In the event no grounds of appeal were filed until 6 April 2016.

In his application, set out in the Appellant’s notice, and in a subsequent witness statement, the Appellant had sought to put forward 3 reasons for his failure to bring the appeal before 12 February 2016 but had never adduced any evidence or explanation why the grounds of appeal had not been submitted until 6 April 2016.

The Respondent attacked the credibility and sufficiency of the Appellant’s reasons for the delay until 12 February 2016 and also asserted that in any event the appeal had not been “brought” until 6 April and that, in the absence of any evidence or good explanation for the delay until that later date, the Appellant failed to establish a good reason for the failure to bring the appeal in time.

The Judge rejected the reasons put forward by the Appellant for the delays until 12 February 2016.  He found several aspects of the Appellant’s evidence lacked credibility and/or lacked any evidence in support to discharge the onus on the Appellant to establish a good reason.  He therefore dismissed the application.

In deference to the arguments before him from both counsel, the judge went on to then consider the effect of the failure to file any grounds of appeal with the appellant’s notice or until 6 April 2016.  Considering the cases of Page v Hewett [2012] EWCA Civ 805 and Lewis v Ward Hadaway [2016] 4 WLR 6, the Judge concluded that the Appeal could not be considered to have been properly brought for the purposes of section 204(2) of the 1996 Act until the Appealing party had done “all that was in their power to do so to set the wheels of justice in motion according to the procedure that was laid down for the pursuit of the relief they were seeking”.

Noting also the Practice direction to Part 52 which required an appellant’s notice to be accompanied by grounds of appeal, he concluded that the appeal in the present case had not been properly brought until 6 April 2016 when the Appellant had finally provided the Court with both documents.  Had he needed to do so therefore, he would have found that the Claimant had failed to establish good reason for the failure to “bring” the appeal until 6 April 2016 and would also have dismissed the appeal.