County court appeal procedure

Appeals are dealt with under Part 52 of the Civil Procedure Rules. An appeal should be filed with the court and the applicant (appellant) should use Court Service form N161.

The application to the court should contain:[1]

• the notice of the appeal on form N161

• a copy of the decision subject to the appeal

• proposed case management directions

As soon as possible and within 35 days of the filing of the notice, an appeal bundle should be filed. This should include all information relevant to the appeal including, among other documents, a copy of the notice and skeleton argument and a copy of any relevant court orders.[2]

If time is short then the applicant should (if there is merit to an appeal) complete the court form with very brief details of the parties and the decision to be appealed against. The grounds should be completed briefly with bullet points covering whatever points of law are thought appropriate. On the form or in a covering letter, the applicant could ask for the appeal to be stayed pending the filing of fuller or amended grounds and/or a skeleton argument. It should be stated that the form is likely to be amended once the applicant has taken legal advice.

The appeal documents should be served on the local authority within seven days of them being filed with the court.[3]

The local authority does not normally need to file a respondents' notice but if it wants to address the court, it should file a skeleton argument no later than seven days before the hearing.[4] Very often, the provisions of the court rules are modified by the court, which will often, on receipt of the appeal, decide that there should be a short hearing at which directions will be given. Often, the court will direct that the local authority disclose the housing file (if that has not already been done) and will direct exchange of skeleton arguments and/or witness statements and set a date for the hearing.

Many homelessness appeals do not reach the hearing stage.

Often, a local authority seek san agreement in which it undertakes a reconsideration of the case on the basis that an appeal is not issued, or is withdrawn or discontinued. If such an approach is made, then in the light of a decision of the Court of Appeal, advisers need to ensure that the applicant's interests are protected. A mere discretionary reconsideration (an 'extra-statutory review') by the authority does not give rise to fresh appeal rights.[5]

Therefore, it is imperative that the local authority agrees in writing that the reviewed decision (or the original section 184 decision if appropriate) has been rescinded or withdrawn. As long as this is agreed, any fresh review decision can be appealed against. In any settlement agreement, provision may well need to be made:

• for the applicant be able to make further representations

• that time for carrying out the review be extended until some future date, and

• for payment of the applicant's costs by the local authority or for protection from the applicant having to pay the local authority's costs

If the local authority does not agree the above, the appeal should be lodged/continued.

Appeals should not in general be discontinued without there being an agreement with regards to costs. This is because the general rule is that a party who discontinues is liable for the legal costs of the other side.[6]

If the case proceeds as far as a hearing, the appeal hearing is presided over by a circuit judge.[7] It usually proceeds in the following manner:

• the advocate for the applicant outlines the grounds of appeal and may elaborate on the points set out in the skeleton argument. The judge may ask questions of the advocate to clarify issues

• the advocate for the local authority outlines the response to the appeal and may elaborate on any of the points set out in the skeleton argument. The judge may ask questions

• the applicant's advocate makes a brief closing speech, followed by the closing speech of the local authority's advocate

• the judge retires to consider the matter and returns to deliver judgment. If the judge is unable to give judgment at this stage, then s/he may reserve judgment to a future date. This may occur where the issues involved in the appeal are particularly complex, the paperwork is bulky or simply that it is not convenient to give judgment on the day

It is rare for the court to hear oral evidence from the applicant or anyone else at the hearing. Oral evidence is only allowed if the court makes an order to this effect.[8] Factual issues will need to be dealt with in advance of the hearing by being incorporated into a witness statement. Sometimes, oral evidence is appropriate to give the applicant the opportunity to clarify or amplify anything in their witness statement. It is, however, unlikely that this is appropriate since the appeal should centre on issues of law and upon the decision-making process. In most cases the appeal does not turn on any factual issues.

Oral evidence could be given by an officer of the local authority who has filed a witness statement in the case, but this would normally be inappropriate for the above reasons.

The court can make an order confirming, quashing or varying the decision.[9] For example, the court can vary a decision of non-priority need to priority need.[10]

Alternatively it may uphold the decision of the local authority.

If the court makes an order in favour of the applicant, then it is usually to quash the decision. This means that the local authority has to make a further decision, having particular regard to the reasons given for the success of the appeal. For example, if the judgment includes a finding that the appeal is allowed on the basis that the local authority failed to undertake adequate enquiries into certain matters, it should make the enquiries before reaching a new decision. This new decision will itself give rise to a right of appeal. However, this does not mean that an order to quash the decision will give rise to a decision different from the one that was originally made.

An order by the court to vary the decision, so as to compel the local authority to accept a duty, will normally only arise in cases where the authority could not possibly reach an adverse decision. This is rarely so.

An appeal against a county court decision needs to be made to the Court of Appeal. Expert advice will be needed

An application for permission to appeal should, if possible, be made within 21 days of the county court decision unless the county court has given directions to the contrary.[11] Permission to appeal will only be granted if the appeal raises an important point of principle or practice, or if there is another compelling reason for the Court of Appeal to hear it.[12]

There is no right of appeal against a decision of an appellate court to give or refuse permission to appeal and the only remedy available in such cases is to apply for judicial review where exceptional circumstances warrant such application.[13]