England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Maurice Kay J)

		Royal Courts of Justice Strand London, WC2 Monday, 4th November 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The decision which the applicant, Miss Michelle Clitheroe, wishes to appeal against is that of Maurice Kay J on 12th August 2002, when he refused permission for judicial review. He said:

"I have considered the written submissions of the parties in relation to the decision of the London Borough of Lambeth set out in the letter dated 4 March 2002. I refuse permission to apply for judicial review. When I deferred further consideration on 12 February 2002 it was solely to enable Lewisham to provide a reasoned decision in writing. That they have done, and, in my view, it is not arguably susceptible to challenge. In this application, which I have allowed to extend beyond the date of the lodging of the claim form, I am not willing to extend it further to embrace evidence subsequent to 4 March 2002. Essentially, I am refusing permission in relation to the decision of 4 March 2002 for the reasons set out in the respondent's written submissions which were received in the Administrative Court Office on 19 March 2002."

2. There had been an earlier refusal, as is apparent from that reasoning, on 12th February 2002, when Maurice Kay J ordered the London Borough of Lambeth to produce a reasoned decision, which they did on 4th March 2002. That is the decision referred to in the judge's written refusal of permission. The judge also referred to the submissions which had been made in the skeleton argument submitted on behalf of the London Borough of Lambeth in respect of the decision under challenge. The decision under challenge was the refusal of the London Borough of Lambeth to grant an extension of time, in which to conduct a review of a decision which the Council had made that Miss Clitheroe had made herself intentionally homeless. That decision was made on 24th January 2001. There was a period allowed by the statute, 21 days, for a request to review that decision. The request was not made until six and a half months later. The refusal to extend time was said by the Council to be a lawful exercise of their discretion under the wide provisions of section 203(4) of the Housing Act 1996.
3. Permission to appeal against Maurice Kay J's decision was refused on paper by Buxton LJ. This is the renewed application. The main point made by Mr Burton in his oral arguments highlighting points, which are made in detail in his various skeleton arguments, is that the wrong test was applied by the Council in deciding whether or not to exercise their discretion to grant a review of the decision on intentional homelessness out of time. He referred to the letter written on behalf of the Council by the Advice Services Manager, Mr Jones, on 4th March 2002, which concludes with this paragraph;

"Overall, I regret to inform you that I stand by my decision of 25 October 2001. I do not consider that anything you have now put forward should cause me to reach any different conclusion. I continue to conclude that the original section 184 decision was correct, and that any review as might take place would not stand a good prospect of success. Indeed, even if I had concluded that there were good prospects I would still have borne very much in mind the wholesale failure to review in time, the delay there had been, and the fact that I have already once given the application for extension a full consideration."

In brief, Mr Burton's submission is that, first, there was an error of law by the Council in requiring that the review requested out of time should have a "good prospect of success". His submission, which was illustrated by reference to a number of authorities, was that there was a lower threshold test for the exercise of that discretion, a test which Mr Burton described as that of "materiality". Material matters were put forward for the consideration of the Council, which had previously not received consideration. He criticised the test of a "good prospect of success" as really requiring an applicant for a review out of time to establish their case before actually obtaining a decision whether or not to have a review. Mr Burton referred to the decisions of R v Brighton and Hove Borough Council, ex parte Nacion (1999) 31 HLR 1095 and R v Newham Borough Council, ex parte Lumley (2001) 33 HLR 124. He also referred to a transcript of a decision of Goldring J, given on 21st May 2002, in R v Camden Borough Council, ex parte Van Der Stolk.

4. Mr Burton's second point was that it was Wednesbury unreasonable of the Council to refuse to grant an extension of time on the ground that there had been delay without proper explanation. The position I have reached on this is that, although I am not in a position to say that this application has a real prospect of success, I am satisfied that there is a matter here which should be argued before the full court. As Mr Burton pointed out, there has been no decided case on the exercise of this discretion. There is a possible point of principle as to what is the proper threshold for deciding whether or not to exercise the discretion. I would therefore propose that this application for permission stands over for a hearing before the full court inter partes and that the application for permission be listed with the appeal to follow, if permission is granted.
5. LORD JUSTICE RIX: I agree.
Order: Application adjourned to be heard on notice, with appeal to follow if permission is granted.