The importance of bringing a homelessness appeal in time…

31 October 2019

Adrian Davis examines the High Court’s decision in Bibi Emambee v The London Borough of Islington [2019] EWHC 2835 (QB). In the decision, Mr Justice Stewart dismissed Ms Emambee’s appeal against the county court judge’s refusal to extend time for bringing a homelessness appeal under section 204(2A) of the Housing Act 1996.

This case, and another decision of the High Court in The Mayor and Burgesses of the London Borough of Tower Hamlets v Al Ahmed [2019] EWHC 749 (QB)*, underlines the importance to applicants of bringing a homelessness appeal within 21 days of being notified of a local housing authority’s review decision.

 The facts

In June 2018, Ms Emambee, who has dyslexia, made a homelessness application to Islington. She was initially provided with interim accommodation in Enfield.  In July, Islington accepted that it owed her the ‘main’ housing duty under section 193(2) Housing Act 1996.  However, on 6 December 2018, Islington discharged its housing duty towards Ms Emambee and terminated the accommodation in Enfield because it believed she was not residing there.

In fact, Ms Emambee had been in Mauritius visiting her sick father.  Upon her return to the UK on 7 December 2018, she sought a review of Islington’s decision to discharge its housing duty towards her.  Importantly, in her letter to Islington she nominated her aunt’s home in Finsbury Park as her correspondence address.  She also provided boarding passes and passports to show she had been in Mauritius between 18 November and 7 December 2018.

On 21 December 2018, Islington promulgated its review decision and sent it by second class post to Ms Emambee’s aunt’s address in Finsbury Park.

However, the aunt had gone away for Christmas on 20 December and did not return until 8 January 2019. Upon her return, the aunt informed Ms Emambee of Islington’s review decision and, with the aunt’s help, she sought legal advice.  An appointment was booked with her solicitors for 15 January 2019.  An appeal with short grounds was drafted that day and filed with the county court on 18 January 2019.  The case came before HHJ Hellman to determine the application to extend time for bringing the appeal.

The county court judge’s decision

HHJ Hellman refused to grant Ms Emambee an extension of time to bring her homelessness appeal.  In the course of his judgment he decided that:

  • the appeal had not been brought within 21 days of Ms Emambee being notified of the review decision. He was satisfied that she was notified on the day it was delivered to the aunt’s address in Finsbury Park which, even allowing for Christmas, must have been before 28 December 2018.  He rejected an argument that she was notified only on the date she actually received the review decision letter; and
  • there was no good reason for Ms Emambee’s failure to bring her appeal within time. He took account of her dyslexia but also of the facts that she was well versed in contacting Islington and had failed to explain why she had not taken action before 15 January 2019.
The High Court judge’s decision

On appeal, Mr Justice Stewart rejected Ms Emambee’s grounds of appeal, which were the judge:

  • was wrong to find the appeal was not brought within 21 days of notification, and he had failed to give proper reasons for this part of his decision;
  • failed to consider relevant matters when deciding there was no good reason for Ms Emambee’s failure to bring the appeal in time, and he failed to provide proper reasons for this part of his decision.

For the first ground of appeal, Ms Emambee submitted the judge ought to have found that the review letter was delivered on or after 28 December 2018 given the busy Christmas period.  Stewart J rejected that argument, holding that HHJ Hellman was entitled to find that it was delivered before that date and that he had provided adequate reasons for his decision.

As to the second ground of appeal, Ms Emambee said that HHJ Hellman ought to have distinguished Al Ahmed on the facts because she suffered from dyslexia and was unable to complete an Appellant’s Notice, Grounds of Appeal and pay the court fee, without legal assistance.  Moreover, she said, once she was aware of the review decision, she had not wasted time in seeking legal advice.  If the county court judge had taken those factors into account, he ought to have found there was a good reason for her failure to bring the appeal in time.

Mr Justice Stewart rejected these submissions, upholding HHJ Hellman’s reasoning.  Dyslexia could not have been a reason for delay until 8 January 2019 (when she first received the review decision letter); nor could it have been a reason for delay after 15 January.  As for the period between 8 and 15 January, Ms Emambee had failed to explain in the two witness statements she had filed why she took no action during this time.  Furthermore, HHJ Hellman had given adequate reasons to explain his decision.

Accordingly, Ms Emambee’s appeal against HHJ Hellman’s refusal to extend time to bring her homelessness appeal was dismissed.

*Mr Al Ahmed was granted permission to appeal the decision in this case to the Court of Appeal.  His appeal to that court is currently listed to be heard in mid-January 2020.  Mark Baumohl is counsel for Tower Hamlets.