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When can an appeal be used?

This content applies to England

This page describes the circumstances for an appeal on a point of law to the county court.

If a homeless applicant is not satisfied with a review decision, or does not receive notification of that decision within the appropriate time, s/he may appeal to the county court on a point of law.[1] When considering such appeals, the exercise carried out by the county court is substantially the same as that of the High Court in judicial review proceedings.[2] The county court's role is limited to considering whether the review officer has reached a lawful decision, and so to confirm, quash or vary her/his decision, not to make its own finding of facts.[3]

Civil right under Article 6?

The European Court of Human Rights has held that the right to accommodation under the homeless legislation is a 'civil right' which fully engages the application of Article 6 of the European Convention on Human Rights (ie it is a right that everyone is entitled to have determined in a fair and public hearing by an independent tribunal established by law). However, it found that the right of an applicant to appeal to the county court provides adequate judicial scrutiny over the review officer's decision and does not breach her/his right to a fair trial. Accordingly, the UK Supreme Court declined to depart from its earlier decision in Ali v Birmingham City Council [2010] UKSC 8 that the role of the county court in a section 204 appeal is limited to considering whether the review officer's decision is correct in law, rather than re-hearing the case and make its own finding of facts.[4]

An applicant who wishes to exercise her/his right of appeal should be referred to a solicitor. Legal aid may be available for representation in an appeal.

Letter before action

Before lodging an appeal it is sensible (if there is time) to write a letter to the local authority. This is called a letter before action or letter before claim. Although the failure to warn the local authority will not affect the merits of the appeal, it may mean that even if the applicant wins the case, s/he may not recover all of her/his costs and, in extreme cases, may have to pay the local authority's costs. The letter should normally outline the basis of the appeal to the local authority and should invite the local authority to rescind its decision on review and set a time limit for a fresh review to be carried out.

What is a 'point of law'?

The courts have confirmed that an appeal on a point of law could include any ground of challenge that would be available in an application for judicial review.[5] This would include review decisions in which a local authority:

  • fails to make appropriate enquiries.[6] However, enquiries will only be held to be inadequate if they are enquiries that no reasonable authority could have failed to make[7]
  • ignores relevant factors
  • takes into account irrelevant factors
  • fails to direct itself properly in law (ie the authority fails to follow the statute or the case law that has interpreted how the law should be applied)
  • reverses the burden of proof or imposes too high a burden of proof[8]
  • fails to give the applicant the benefit of the doubt (where there is a doubt)[9]
  • fails to make findings of fact and/or fails to give adequate reasons for its decision.[10] Note, however, that although reasons have to be adequate, intelligible and deal with the substantive points that the applicant has raised, they do not have to include reference to everything in great detail
  • fails to put basic issues to the applicant. For example, in one case, an applicant was found intentionally homeless after information relating to mortgage arrears was received from his bank but not put to the applicant. He should have been given an opportunity to comment or explain[11]
  • fails to follow the statutory review procedure. Hence in one case, deficiencies in the original refusal decision triggered the reviewing officer's obligation to give advance notice of his intended decision under the Allocation of Housing and Homelessness (Review Procedures) Regulations.[12] Notice was not given and hence the decision was quashed[13]
  • reaches a decision totally at variance with the facts or for which there is no factual basis[14]
  • fails to act in accordance with the objects and principles of the relevant Act[15]
  • fetters its discretion (often referred to as operating blanket policies)[16]
  • has delegated decision-making to an unauthorised body[17] Where, for example, a decision on vulnerability was taken by a doctor rather than the authority, the decision was quashed[18]
  • goes back on a legitimate expectation, for example, where the local authority had committed itself to providing accommodation to the applicant[19]
  • acts dishonestly or in bad faith (this is normally very difficult to prove)
  • comes to a decision which is so unreasonable that no reasonable authority could have come to it.[20]

See Judicial review for more information on grounds to challenge a local authority by way of judicial review.

In one case, where a homeless applicant appealed a homelessness review decision in the county court on the grounds of alleged unlawful discrimination,[21] the Court of Appeal held that this was outside of the county court’s jurisdiction, which in homelessness appeals was limited to the points of law arising from the review decision.[22]

Interpretation of review decisions by the courts

When an applicant appeals a review decision, it is for the applicant to show that the decision letter contains an error of law.

It should be noted that when the court is called upon to consider appeals against review decisions, the House of Lords considered that a 'benevolent approach' should be adopted to the interpretation of such decisions. 'The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision'. It is not appropriate to subject a review officer's decisions to the same sort of analysis would be applied to a contract drafted by solicitors or to an Act of Parliament. The court should not 'approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions'.[23]

In one case, where a council had found an applicant not vulnerable, the Court of Appeal held that the council was not required to establish that the reviews officer had applied the correct 'vulnerability test', it was for the applicant to show that he had not. The fact that the reviews officer had not 'tied' each of his reasons for finding the applicant 'not vulnerable' to the vulnerability test did not establish that he had not applied the correct test. It was sufficient, that, having correctly stated the test, the reviewing officer's decision after evaluating the evidence was consistent with that test. Any doubt as to whether the correct test had been applied was 'forensic', as opposed to 'genuine' - in other words, the doubt came from an excessively legalistic approach to the decision letter.[24]

In an internal review of a decision that an applicant was intentionally homeless, the fact that the review officer made no explicit reference to a paragraph concerning affordability in the statutory guidance did not render the decision irrational or perverse as it was clear that the issues covered in that guidance had been carefully considered.[25]

[1] s.204(1) Housing Act 1996.

[2] Begum (Runa) v Tower Hamlets LBC [2003] UKHL 5; Bubb v Wandsworth LBC [2011] EWCA Civ 1285.

[3] Ali v Birmingham City Council [2010] UKSC 8; Poshteh v Kensington and Chealsea [2017] UKSC 36; Bubb v Wandsworth LBC [2011] EWCA Civ 1285; Richmond upon Thames LBC v Kubicek [2012] EWHC 3292 (QB).

[4] See Ali v United Kingdom [2015] ECHR 924 and Poshteh v United Kingdom Application n. 78375/17, and cfr. with Poshteh v Kensington and Chelsea [2017] UKSC 36.

[5] Begum (Nipa) v Tower Hamlets LBC [1999] EWCA Civ 3051.

[6] R v Gravesham BC ex parte Winchester (1986) 18 HLR 208, QBD.

[7] Cramp v Hastings BC; Phillips v Camden LBC [2005] EWCA Civ 1005; Birmingham CC v Wilson [2016] EWCA Civ 1137.

[8] R v Woodspring DC ex parte Walters (1984) 16 HLR 73, QBD.

[9] R v Thurrock BC ex parte Williams, 1981 HLR 128; R v North Devon DC ex parte Lewis [1981] 1 WLR 328, QBD.

[10] R v Brent LBC ex parte Baruwa (1997) 29 HLR 349, QBD.

[11] R v Shrewsbury and Atcham BC ex parte Griffiths (1993) 25 HLR 613, QBD.

[12] reg 8(2) Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 SI 1999/71.

[13] Hall v Wandsworth LBC; Carter v Wandsworth LBC [2004] EWCA 1740.

[14] Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, HL; Dawkins v Central Bedfordshire Council [2013] EWHC 4745 (QB).

[15] R v Braintree DC ex parte Halls (2000) 32 HLR 770.

[16] British Oxygen Co Ltd v Minister of Technology [1971] AC 610; Williams v Cynon Valley BC, January 1980, LAG Bulletin 16.

[17] R v West Dorset DC ex p Gerard (1994) 27 HLR 150, QBD.

[18] R v Lambeth LBC ex parte Carroll (1988) 20 HLR 142, QBD.

[19] R v Newham LBC ex parte Bibi and Al-Nashed (2001) 33 HLR 955.

[20] Watson v Wandsworth LBC [2010] EWCA Civ 1558.

[21] See ss. 15,19, 149 Equality Act 2010.

[22] Adesotu v Lewisham LBC [2019] EWCA Civ 1405.

[23] Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] UKHL 7; Rother DC v Freeman-Roach [2018] EWCA Civ 368.

[24] Rother DC v Freeman-Roach [2018] EWCA Civ 368.

[25] Birmingham City Council v Balog [2013] EWCA Civ 1582.

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