Better late than never: late homelessness review decisions: Stanley v Welwyn Hatfield Borough Council

November 9, 2020

The Court of Appeal has held that the parties in a homelessness review can agree an extension of time for the local authority to reach its review decision without them having to reach agreement as to a specific date by which a decision will be reached.

By law, a local authority must reach a homelessness review within 8 weeks or such longer period as the appellant and the reviewer agree in writing (pursuant to regulation 9 of the Homelessness (Review Procedure etc.) Regulations 2018/223).

The court has also suggested that where a local authority makes a homelessness review decision late, that decision should not be considered a nullity simply because of its lateness.

Impact of the decision for lawyers representing homeless applicants

The Court of Appeal’s decision that parties can implicitly agree an extension of time without having to explicitly agree a new deadline will require lawyers representing homeless applicants to decide and make clear at an early stage whether they are agreeable to the review process overrunning or whether they are going to take a strict approach and insist on a review decision within the statutorily-prescribed 8 weeks. Potentially any steps which they take to argue the case after the 8 weeks have passed might be seen as consent to an extension.

Impact of the decision on local authorities

Although obiter dicta and therefore not strictly binding authority, the Court of Appeal’s view that a review decision which is reached late may still be valid will be welcomed by local authorities. This pragmatic approach will ensure that the court’s and the parties’ time and resources in a homelessness appeal are spent considering 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decision, even if it was made out of time, rather than arguing over the legality of an original decision which has been superseded.

The Court of Appeal will hear further argument about out-of-time homelessness review decisions in a pending case, Ngnoguem v Milton Keynes Council. Lawyers representing local authorities and those representing homeless applicants should look out for the judgment to see what further clarification it brings on this important issue.

Background

Ms Stanley applied to Welwyn Hatfield Borough Council for homelessness assistance under Part VII of the Housing Act 1996.

On 1 July 2019, the council decided that she was intentionally homeless because she had failed to pay her rent despite it having been affordable to her.

Ms Stanley requested a review of that decision on 19 July 2019. The statutory deadline for the council to make the decision was 8 weeks from then, meaning the deadline was 13 September 2019.

On 11 September 2019, the council review officer wrote to Ms Stanley’s solicitors, asking whether they would agree to an extension of time to the end of November 2019. No reply was received.

When the council later wrote to Ms Stanley’s solicitors to give them an opportunity to make written representations against the council’s provisional view that the original decision of 1 July 2019 should be upheld, Ms Stanley’s solicitors asked if they could have until 25 September 2019 to make representations; the council readily agreed. In fact, Ms Stanley’s solicitors sent written representations on 26 September 2019, but in a follow-up email, they stated that they were sending the representations without prejudice to their belief that any review decision would be ineffective due to it being out of time.

On 2 October 2019, the council reached a review decision which upheld the council’s earlier decision that Ms Stanley was intentionally homeless. Ms Stanley issued an appeal in the County Court, pursuant to section 204 of the Housing Act 1996, against both the original decision and the review decision.

The County Court judgment

Issue 1

On 15 January 2020, the County Court struck out Ms Stanley’s appeal against the original decision, holding that the email correspondence between the council and Ms Stanley’s solicitors (summarised above) should be read as showing an agreement between them that the council could have an extension of time to reach their review decision. Accordingly, the County Court decided that the review decision had not been late.

Issue 2

The County Court went on to decide that, even if Ms Stanley had not agreed an extension of time, she should be taken to have validated the review decision by issuing an appeal against it.

The Court of Appeal decision

The Court of Appeal dismissed Ms Stanley’s appeal and upheld the County Court decision.

Issue 1

Ms Stanley’s solicitors had asked for a deadline for their written representations which fell after the 8-week statutory deadline for the review decision to be reached. Accordingly, they could be taken to have agreed an extension of time. In the court’s view, it did not matter that no explicit deadline had been agreed between the parties; it was sufficient that Ms Stanley had made clear that the review process could carry on past the 8-week statutory deadline.

Issue 2

The Court of Appeal decided that, even if an extension had not been agreed, it was not open to Ms Stanley to argue that a review decision which is reached late is a nullity.

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.

The court reviewed reports of various County Court decisions involving late review decisions, before deciding 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 a distinct reason as to why the original decision should be quashed, the County Court should treat the appeal as a challenge to the review decision and should focus on the review decision.

The judgment in Stanley v Welwyn Hatfield Borough Council [2020] EWCA Civ 1458 is available on BAILII.