Appeals on a point of law to the county court

The circumstances for an appeal on a point of law to the county court.

This content applies to England

When an applicant can appeal to the county court

County court appeal is the reconsideration by the court of an adverse decision made by a local authority. Such an appeal can generally only be brought on a point of law, not on the facts of the case.

If a homeless applicant is not satisfied with a review decision, or does not receive notification of that decision within the appropriate time, they 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 their decision, not to make its own finding of facts.[3]

In Stanley v Welwyn Hatfield Borough Council,[4] the Court of Appeal held that an appeal against an authority's original decision that the applicant was intentionally homeless could not be dealt with at the same time as an appeal of a review decision. The applicant should have brought an appeal on the original decision or the review decision, not both. The court also found that in agreeing an extension to the deadline for a review decision, the extension did not need to have a fixed end date.

Appeals when the local authority issues a late review decision

When a homeless applicant requests an internal review of the local authority's homelessness decision, the local authority must carry out the review and notify them of the outcome. If the review decision is not provided within a specified time limit, the applicant may appeal the original homelessness decision instead. There may be circumstances when the review decision is provided late, either before or after the start of the appeal process. 

Local authority issues a late review decision before appeal started

In Ngnoguem v Milton Keynes Council,[5] the Court of Appeal has held that if the applicant is notified of the review decision late but before the start of the County Court appeal process, the appeal must be brought as a challenge to the review decision, not the original homelessness decision issued under section 184 of the Housing Act 1996.

Local authority issues a late review decision after appeal started

The Court of Appeal has held[6] that if the if the applicant is notified of the review decision after the start of the appeal process in respect of the original homelessness decision, the appeal will become academic, unless exceptional circumstances occur. If this is the case, the appeal should normally be compromised, stayed or dismissed and costs could be awarded against the local authority if it is responsible for the appeal becoming academic. The Court of Appeal observed that it would be wrong for the local authority to 'attempt to gain some advantage by manipulating the time' of when to notify the applicant of the decision.

Preparing an appeal

Specialist advice will be needed to draft the grounds of appeal, the skeleton argument and to represent the applicant. Time to prepare the case will usually be very short.

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

The applicant's adviser or legal representative should:

  • establish the relevant time limit

  • establish whether the case has legal merit (whether there is a point of law)

  • work out whether the applicant is entitled to public funding, and if so

  • refer the applicant to a solicitor who can take the case on

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 their 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.[7]

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 does not affect the merits of the appeal, it may mean that even if the applicant wins the case, they may not recover all of their 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.

New evidence

The authority is unable to consider new evidence because the review process has been completed. The court will not criticise the local authority for failing to take into account evidence that was not given to it. One exception is where evidence relates to the conduct of the review process.

Another possible exception is where there is evidence that could show that appropriate inquiries were not made, and that if they had been made, the outcome of the local authority's decision would have been different.

Establishing whether the case has legal merit

In looking at the merits of a county court appeal, the starting point is the local authority's decision letter. This is because the local authority alone is responsible for deciding the facts. The focus will be on whether the local authority has properly applied the law to the facts that it has found, and whether it has considered all relevant matters. The section 202 decision has, however, to be seen in context. There may have been defects in the way the authority went about its decision-making. It is also necessary to look at the information that was before the authority and the inquiries it made. In particular, advisers need to look at any representations put to the authority in connection with the statutory review process. A fresh request for a copy of the housing file (or those parts not previously disclosed) may therefore be needed.

An adviser or legal representative acting for an applicant should establish the applicant's version of events around how the review was handled in case there has been any unfairness in the authority's procedure. It will be necessary, for example, to consider whether any adverse comments from third parties were put to the applicant for comment or explanation before a conclusion was formed by the authority.

Point of law

The court 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.[8]

This would include review decisions in which a local authority:

  • fails to make appropriate enquiries.[9] However, enquiries are only held to be inadequate if they are enquiries that no reasonable authority could have failed to make[10]

  • 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[11]

  • fails to give the applicant the benefit of the doubt (where there is a doubt)[12]

  • fails to make findings of fact and/or fails to give adequate reasons for its decision.[13] 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[14]

  • fails to follow the statutory review procedure. 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.[15] Notice was not given and hence the decision was quashed[16]

  • reaches a decision totally at variance with the facts or for which there is no factual basis[17]

  • fails to act in accordance with the objects and principles of the relevant Act[18]

  • fetters its discretion (often referred to as operating blanket policies)[19]

  • has delegated decision-making to an unauthorised body[20] Where, for example, a decision on vulnerability was taken by a doctor rather than the authority, the decision was quashed[21]

  • goes back on a legitimate expectation, for example, where the local authority had committed itself to providing accommodation to the applicant[22]

  • 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[23]

Disability discrimination

In one case, where a homeless applicant appealed a homelessness review decision in the county court on the grounds of unlawful discrimination under the Equality Act 2010,[24] the Court of Appeal held that this was outside of the county court’s jurisdiction, because while section 133 of the 2010 Act did not prevent a claim for judicial review, it did not extend to a section 204 homelessness appeal, which was limited to the points of law arising from the review decision.[25]

Contracting out homelessness review functions

Local authorities are allowed to contract out certain functions, including homelessness reviews, to external agencies.[26]

In one case, the Court of Appeal held that where one of the appeal grounds concerned the council’s alleged failure to lawfully extend its contract with an external company, meaning that the company would have had no authority to continue with the review, the county court had the jurisdiction to hear the appeal under section 204 of the Housing Act 1996.[27]

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.

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'.[28]

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.[29]

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.[30]

Last updated: 24 March 2021

Footnotes

  • [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]

    Stanley v Welwyn Hatfield Borough Council [2020] EWCA Civ 1458.

  • [5]

    Ngnoguem v Milton Keynes Council [2021] EWCA Civ 396.

  • [6]

    Ngnoguem v Milton Keynes Council [2021] EWCA Civ 396.

  • [7]

    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.

  • [8]

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

  • [9]

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

  • [10]

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

  • [11]

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

  • [12]

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

  • [13]

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

  • [14]

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

  • [15]

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

  • [16]

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

  • [17]

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

  • [18]

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

  • [19]

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

  • [20]

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

  • [21]

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

  • [22]

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

  • [23]

    Watson v Wandsworth LBC [2010] EWCA Civ 1558.

  • [24]

    See ss. 15,19, 149 Equality Act 2010.

  • [25]

    Adesotu v Lewisham LBC [2019] EWCA Civ 1405.

  • [26]

    Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions Order 1996) SI 1996/3205; part 2 Deregulation and Contracting Out Act 1994; para 19.9 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [27]

    James v Hertsmere BC [2020] EWCA Civ 489.

  • [28]

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

  • [29]

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

  • [30]

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