Liz Davies and Connor Johnston of the Garden Court Housing Team were instructed by Freshfields Bruckhaus Deringer LLP, on behalf of the intervener Shelter. They all acted pro bono.
Giving judgment in the case of Al-Ahmed v Tower Hamlets London Borough Council [2020] EWCA Civ 51 on 30 January 2020, the Court of Appeal gave important guidance on when a homeless applicant may be permitted to bring an appeal outside of the 21-day time limit, against a local authority’s decision on his or her homeless application. It rejected a High Court decision which had found that the requirements of bringing a homelessness appeal were not ‘especially sophisticated or taxing’ and therefore there was not a good reason why Mr Al Ahmed could not have issued the appeal as a litigant in person during the time limit.
Section 204(2A)(b) Housing Act 1996 provides the county court with a discretion to allow a homeless applicant to bring his or her appeal late, but only where it is 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’.
Mr Al Ahmed had issued his appeal about 35 days late. His reason for not having issued within the time limit was that he had been trying to find legal advice and representation and had been unable to do so until 33 days after the end of the 21 day period. In the County Court, HHJ Hellman had held that Mr Al Ahmed did have a good reason for the delay.
Tower Hamlets LBC appealed to the High Court. Mr Justice Dove, in a decision that had caused some concern among those working in the homelessness sector, found that Mr Al-Ahmed did not have a good reason for appealing late. He said ‘being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules’ [2019] EWHC 749 (QB).
Mr Al Ahmed brought a second appeal to the Court of Appeal. The Court of Appeal, assisted by an intervention from Shelter, allowed Mr Al-Ahmed’s appeal. Sir Stephen Richards gave the leading judgment, with which Phillips LJ & Richards LJ agreed. The judgment held that the authorities relied on by Dove J, in which the courts had advocated a strict approach to compliance with time limits and had taken the view that seeking a lawyer or applying for legal aid would not ordinarily constitute a good reason for delay, related to the application of the Civil Procedure Rules (CPR) and the increased emphasis on compliance with the CPR resulting from Sir Rupert Jackson’s review of civil litigation costs. This line of case law did not apply to the statutory test at s204(2A) Housing Act 1996 which ‘provides a straightforward statutory test to which no gloss… should be applied’ [24].
Sir Stephen Richards said:
“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.” [34].
In addition, in so far as Dove J had based his decision 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’, he was ‘mistaken’ [42]. This proposition was not supported by the evidence before the judge in the county court and was contradicted by the evidence provided by Shelter to the Court of Appeal. This evidence showed (among other things):
- ‘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';
- ‘that review letters are hard for homeless applicants to understand’
- that ‘[t]hose 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’
- ‘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’ [19] – [20].
Commenting on the judgment, Shelter’s Chief Executive Polly Neate said that:
”This is a very welcome judgment, providing significant guidance and recognising the difficulties faced by homeless applicants bringing an appeal without legal advice and representation. Importantly, the judgment also recognises the wider difficulties caused by cuts to legal aid and the subsequent shrinking of the housing advice sector.”
Freshfields Bruckhaus Deringer LLP dispute resolution partner, Patrick Swain, said:
"The judgment is incredibly important for homeless applicants seeking to appeal an adverse review decision made by a local authority, with the support of legal advice. We are proud to have acted for long-term pro bono client Shelter on this case, along with the team from Garden Court Chambers, and are pleased with the impact of Shelter’s intervention on the court. Today’s result is testament to the work by all of the teams involved.”
