England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Maurice Kay)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th July 2003

Lord Justice Ward :

1. This is the judgment of the court to which each of the members of the court has contributed.

The claimant's unhappy circumstances

2. The claimant whom we shall identify under her initials, M.C., is a young woman aged 24 years. She has had a sad and troubled life. When aged only 15 she was forced by a boyfriend to have sexual intercourse with him against her will. It was a traumatic event. It was compounded about a year later when she suffered a brutal attack at the hands of a so-called family friend who raped her in her parents' home. This time the police were involved but she was too unwell to give evidence. She had begun to suffer depression and in May 1996 attempted suicide by taking an overdose of Paracetamol leading to her admission to the Lewisham Hospital as a result. She received some psychiatric care but only for a short period. All of these events led to a deterioration of her relationship with her parents and she determined to leave home.
3. Thus it was that in about August 1997 the respondent local authority granted her a tenancy of a bed sit flat in Catford, London SE6. Arrears of rent began to build up during the first year of that tenancy. From time to time she was in employment but it was not regular. She was unable to pay her gas, electricity and telephone bills and incurred debt to catalogue companies. When not employed she failed to claim housing benefit and the arrears began to grow and she was warned that the local authority would be forced to serve notice seeking possession but she took no action upon that warning.
4. Meanwhile in 1998 she had met a young man and hoped to have a stable relationship with him. When she became pregnant, he left her and she was very distressed. During this time attempts were made to resolve the housing problem but all efforts made by the local authority came to nought because the claimant failed to attend meetings and failed to comply with arrangements to pay her rent. Eventually proceedings were taken against her in the County Court leading to a suspended order for possession being made in February 1999 but she failed to make the rent payments and payments towards arrears which the court ordered.
5. Her baby was born on 22^nd September 1999. At the end of November 1999 she was given a date for eviction which was postponed to give her a last opportunity to submit claims for income support and housing benefit. She did not do so and on 13^th April 2000 she was evicted from her flat.
6. Initially she stayed with her parents then moved in with a sister. Eventually she was granted accommodation at a hostel with a mother and baby unit where she prospered.
7. She applied under Part VII of the Housing Act 1996 as a homeless person and the local authority embarked upon their statutory duty to make such enquiries as were necessary to satisfy themselves whether she was eligible for assistance.
8. Nearly a year had elapsed after her eviction when on 24^th January 2001 the Homeless Persons Unit of the London Borough of Lewisham informed the applicant in writing that they had concluded that she was eligible for assistance and had priority need but concluded under section 191 of the Act that she had become homeless intentionally. In coming to that conclusion the acting Senior Housing Adviser wrote:-

"I have taken into consideration other information you provided about your well-being, you stated that you were drinking and that you were suffering depression. Investigations have shown that there is no evidence that you were depressed or being treated for this and there is no evidence to suggest that your overdose was a suicide attempt.

By your own mitigation you did not seek any treatment for your drinking problem and you stated that this is where your money was being spent, again on investigation we have no evidence of your alcohol problem.

You also stated that you were raped, while I appreciate this traumatic assault on you must have been devastating, all of this took place when you were 16 years old in 1994, well before your being given a tenancy, and at the time of the rape you were referred for counselling and to the Child Guidance Unit of which you never kept to the appointment.

Your case has now been concluded that you are intentionally homeless … on the basis of eviction for persistent rent arrears. This is seen to be a deliberate act, and causation of homelessness."

The letter concluded:-

"You have the right to request a review of this decision. If you wish to do so, please forward your appeal or representations in writing to the Advice Service Manager Mr Peter Jones within 21 days of this notification stating your reasons for requesting a review."

9. The applicant was vague as to her response to that letter and it is not at all clear what approaches she made to the local authority or what she said when she did approach them. She did see her general practitioner who wrote a letter dated 8^th February 2001 setting out the history of the two assaults upon her and saying:-

"Since then she has been more vulnerable and emotionally labile. From the records I can see that on 13^th May 1996 she attend Casualty at Lewisham Hospital having taken an overdose of Paracetamol tablets. The blood test did show an abnormal level of Paracetamol and therefore she was kept under observation and given a follow up appointment later on and was also referred to see a psychiatrist for her emotional problems. Both these incidents have left a scar on her life and periodically she gets depressed and a feeling of guilt complex. I do not think she will ever recover fully to her normal self."

For some reason or other, possibly lack of money to pay the doctor's fee, she did not collect that report for months. On 25^th April she wrote to Mr Jones sending him a copy of that letter and asking to make an urgent appointment "to see you as my situation is now desperate". For one reason or another it took until 16^th July for her to attend on the Homeless Persons Unit seeking help because she had been asked to leave her parents' home. Her plea for help, which was treated as a fresh application for housing assistance, not a review, was rejected.

10. In their letter dated 18^th July 2001 the local authority explained:-

"During the interview you were advised that since the date of your initial application and our decision letter dated 24^th January 2001 there has been no material change to your circumstances as the information you provided had already been assessed in your homeless application of 10^th April 2000 neither had there been any intervening period of settled accommodation therefore the original decision still stood. Your decision letter advised you of your right to request a review within 21 days from the date of that letter however, you did not exercise your right to a review within the time period advised.

You were advised at our interview that as the homelessness service were unable to assist that you should contact the Children and Families Team within the Social Services Department for further assistance … Please be advised that at this time the Homelessness Unit cannot be of any further assistance."

11. The applicant consulted solicitors and they wrote on her behalf on 31^st August 2001 making a formal request to extend the time for a review of the decision of 24^th January 2001 on the ground that her age and mental state were such that she was not able properly to deal with her affairs such as completing housing benefit claim forms. In that letter the solicitors explained that the applicant was still unwell and extremely vulnerable, having "great difficulty in coping with everyday life". Her failure to explain the lapse in time between her consulting her general practitioner and forwarding his report to the local authority was said to show that her inability to deal with matters was continuing. The solicitors reserved the right to submit further medical evidence once notified that the council agreed to an out of time review. No doubt with that in mind they also arranged an appointment for her with Doctor Michael Browne, a consultant psychiatrist.

The claim for judicial review and the unusual ensuing events

12. On 18^th October 2001 the claimant issued her claim for judicial review. The nature of her challenge was expressed to be against:-

"the decision of the respondent dated 18^th July 2001 not to extend the time limit for the applicant to request a review of the respondent's decision dated 24^th January 2001 that she is intentionally homeless (pursuant to s. 191 Housing Act 1996), pursuant to its power to do so, s. 202(3) Housing Act 1996."

13. The local authority eventually responded to the applicant's solicitor's letter of 31^st August. There is confusion about the date of that response which inexplicably is sometimes referred to as having been dated 15^th October, and sometimes as dated 25^th October 2001, even though the copy before us bears the date "November 9". In it Mr Jones wrote:-

"I have now gone through the papers and given fresh consideration to the matters raised in your letter of 31^st August, and I regret to inform you that the authority here will not be conducting a review out of time of the decision of 24^th January 2001, and adheres to the view expressed in the letter of 18^th July 2001 that the authority has discharged its duty to Ms C., and is under no further duty, either to make enquiries, or to review the original decision in your client's current circumstances."

Several reasons were given. The first was that there was no proper explanation for the delay in requesting a review and no proper explanation for the delay in not submitting the further medical report until 25^th April. Secondly Mr Jones explained that their own enquiries made of the applicant's case did not support her contentions. Consideration was given to the general practitioner's letter,

"but it is in no way compelling evidence that Ms C has problems attending to the administrative affairs in her life. Given the events that occurred in Ms C's teens, I would have thought it self evident that Ms C may not "recover fully to her normal self", but there is no causal link drawn between these events and an inability to cope with financial and administrative matters, and the doctor's letter does not link these matters in any way."

14. On 2^nd January 2002 Mr Jack Beatson Q.C. sitting as an additional judge of the High Court dismissed the application for permission to apply for judicial review of the 18^th July decision observing that:-

"No arguable case that Lewisham's decision not to extend the time limit for the claimant to request a review of its decision that she was intentionally homeless is impugnable on public law grounds."

On the next day the applicant sought an oral hearing and the matter was listed for 11^th February 2002.

15. On 24^th January 2002 the applicant's solicitors wrote to the legal department of the local authority enclosing a copy of the report prepared by Doctor Browne. This report had in fact been written three months earlier on 19^th October 2001. He recounted the history he had taken from the applicant. He expressed the opinion that:-

"This young woman though not mentally ill in the clinical or formal sense has in my opinion quite significant personality problems in that she is unusually anxious and to some extent unstable. Some of these problems undoubtedly stem from the two unfortunate episodes related above, i.e. the two rapes. It seems fair to say that these have cast a dark shadow on her life and have caused a psychiatric/psychological mental state amounting to something near to post-traumatic stress disorder. It is my opinion that this led to her leading a disjointed and chaotic lifestyle during which she drank to excess and because of which she was unable to think straight and to keep her affairs in order … As a result of my examination and having thought carefully about the matter, I am of the opinion that this young woman did not make herself intentionally homeless as alleged by Lewisham Council. I believe that her disturbed mental state rendered her unable to manage her affairs in any meaningful way over that period."

The solicitors emphasised the causal link between her psychiatric/ psychological problems and her inability to manage her own affairs. The applicant's solicitors wrote formally to request a review of the decision of 24^th January 2001 "in the light of the new evidence provided, i.e. Doctor Browne's report". They invited the local authority to treat it either as a review under s. 202 of the Act or as a new application. They wrote:-

"If your clients are prepared to agree to the above course of action, we are instructed to agree to withdraw the application for judicial review with no order for costs."

16. The legal department wrote the next day that the housing department would consider the report but that their initial response was that the fresh evidence did not justify a fresh application. They observed that the evidence did not seem to touch the decision under review, namely that of 18^th July, because Doctor Browne gave no particular information about the applicant's state of mind after the January decision and leading up to the July decision. In any event it was said that the history had already been taken into consideration. There was some challenge to Doctor Browne's expertise as to what does or does not constitute "intentionality" for the purposes of the homelessness rules and they sought further information about this.
17. Ms C.'s solicitors' response is interesting in the light of the submissions developed before us. They wrote on 1^st February 2002:-

"In our submission the two most important factors that a local authority should have regard to when considering the exercise of their discretion whether to permit an out of time review are (i) the merits of the original decision, having regard to the degree to which it is undermined by any fresh evidence/ representations, and (ii) the reasons why the conducting of a review was not agreed within the 21 day time period."

They expressed the view that Doctor Browne's report constituted fresh evidence of sufficient probity to cast serious doubt over the local authority's decision of 24th January 2002, especially because it did establish the causal link between the loss of the accommodation and her psychological problems.

18. The applicant then amended her claim to add a challenge to the decision of "25^th October 2001" and to suggest that the letter of 25^th January was reviewable on the basis that it was an omission to take a relevant decision.
19. It was that amended application which came before Maurice Kay J. on the afternoon of 11^th February and for some 20 minutes on the following morning. In his skeleton argument on behalf of the applicant, Mr Jamie Burton submitted as follows:-

"25. Under section 202(3) HA 1996 the respondent has a discretion to extend the time for requesting a review of a decision beyond 21 days. When exercising its discretion the authority must take account of all material considerations and must not act irrationally.

26. It is submitted that when considering a request for a late review a local authority should have regard to both:

(i) The reasons why the review request has been made out of time; and

(ii) The merits of the applicant's case in relation to the validity of the decision under review, having regard to any further representations/evidence the applicant may or may not provide.

27. Furthermore it is submitted that where the challenge on the merits is strong the lesser the requirement that any delay in requesting a review be incurred reasonably, as the authority should be loath to permit a clearly erroneous decision to stand. Equally where the explanation for any delay is suitably exculpatory then the merits should not overly concern the authority as prima facie every applicant has the right to a review of the decision irrespective of the merits."

Mr Ranjit Bhose submitted in his written argument that s. 202(3) created a very broad procedural discretion and save for the most obvious of cases the court should not intervene: cf. R v Brighton & Hove Council, ex parte Nacion (1999) 31 H.L.R. 1095. He also dealt with the amended case that no decision had been taken in response to the request of 24^th January 2002 and he submitted:-

"13. It is accepted (for the purposes of this application) that where a local authority has decided not to extend time under s. 202(3) it may nevertheless be called upon to reconsider that decision, in the light of further representations made. Any challenge to its decision would be a matter for this court, but again on grounds of perversity (assessed in the light of the fact that it had already fully considered the s. 202(3) exercise)."

He went on, however, to set out on his client's express instructions, the reasons why the council did not consider that the report of Doctor Browne should cause it to conclude any differently on whether or not to extend time and he set out their thinking.

20. On 12^th February 2002 Maurice Kay J. ordered that:-

"(i) Permission be refused in relation to the decisions of 18^th July 2001 and 15^th October.

(ii) Deferred consideration of the local authority's position post Doctor Browne's report for 28 days.

(iii) The local authority reach and formulate its decision and provide reasons for it within 21 days.

(iv) At the end of the 28-day period written submissions should be sent to Mr Justice Maurice Kay at this court confined to the issue of whatever is decided and reasoned. Written submissions to begin with the counsel for the claimant putting in writing what he has to say about the situation followed within 48 hours by submissions from counsel for the defendant."

We have no transcript of those proceedings and no transcript of the judgment. What is significant, however, is the fact that there is no appeal against that order and there is, thus, no longer any challenge to the decision either of 18^th July or of 15^th/25^th October 2001.

21. The local authority duly considered the request made to them in the light of Doctor Browne's report. On 4^th March 2002 Mr Jones wrote:-

"As stated at the hearing, having considered all of the new material presented, the council is not willing to reverse its decision not to extend the time within which Ms C might seek a s. 202 review of the original decision of 24^th January 2001 that Ms C is intentionally homeless. Nor is the council willing to undertake any other sort of extra statutory review. Many of the reasons for my conclusion are set out in the council's skeleton argument, which was compiled on my instructions. However for the purposes of completeness I set out my reasoning in full which should be read in conjunction with my first decision not to extend time of 25^th October 2001.

22. He continued:-

"I remain of the view that no proper explanation has been provided for the failure to seek a review, nor the failure to supply [the general practitioner's] letter until 25^th April 2001 (when on Ms C's account she had it in early March 2001).

I have approached your request by seeing whether any of the new matters put forward are sufficiently compelling in your client's favour to suggest any review would have a good chance of success and that that should take precedence over my conclusion of there being no good reason for the failure to review in time. I have first considered the report of Doctor Browne. I do not find the report particularly compelling. I have found it to be generalised, non-date specific, and based almost entirely on what Ms C has told him."

He went on to point out that the relevant period was when the rent arrears arose, principally in 1999 to April 2000. He took the view that whereas incapacity, for example old age, mental illness or handicap, would be a good reason that word suggested that more was required than "being simply depressed or having difficulties coping. The test is a high one". He pointed out Doctor Browne did not focus on the particular periods during which the arrears arose. He agreed that the applicant was having "a very difficult time" in the aftermath of the assaults upon her leading to her being admitted to hospital in May 1996 but he pointed out that was more than a year before the tenancy was even granted. He pointed out that she did pay the rent from time to time and that things really began to go wrong only in 1999. She obtained housing benefit and had to hold down employment for long periods suggesting some ability to manage her affairs. He concluded:-

"Overall, in assessing the merits aspect of this decision, nothing that Doctor Browne has said causes me to consider that any review would have good prospects of success. Whilst I would naturally have regard to his report on any review, the amount of weight to be placed upon it would be limited. I also note that he does not deal with Ms C's mental state in the period when she should have applied for the review, or put forward any opinion to explain her failure."

23. He went on to deal with detailed complaints about her earnings and her ability to pay the rent. He pointed out that the council had contacted her G.P. but was referred to his partner in his absence on holiday. The council had also telephoned Lewisham Hospital. In the result:-

"Overall, I regret to inform you that I stand by my decision of 25^th October 2001. I do not consider that anything you have now put forward should cause me to reach a different conclusion. I continue to conclude that the original s. 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. Therefore I decline to exercise my discretion in your client's favour."

24. As directed by the judge, Mr Jamie Burton put in further lengthy submissions to counter each of the reasons given by the local authority for example as to her late request for a review of the January 2001 decision, the calculation in her earnings and the criticisms made of Doctor Browne's report. As to the approach taken by the local authority counsel submitted that:-

"medical evidence stating that C was incapable of managing her affairs presents a prima facie case that she was so incapable and can only be rejected by reference to other medical evidence and reasons why it is preferable to that disclosed by C. … Therefore in the absence of evidence which contradicts that of Doctor Browne it is not open to D to lawfully conclude that C would not have strong prospects of success on a review."

25. In addition to advancing his submissions on the decision letter, Mr Burton sought to introduce fresh evidence from Doctor Browne set out in a report dated 14^th March 2002. In that skeleton argument Mr Burton said:-

"In order to assist the defendant reach the correct decision on the merits of the claimant's request the claimant has been to see Doctor Browne for a second time in order that he could address some of the concerns raised by the defendant in its decision letter. He has produced a report dated 14/03/02. Had these issues been explored within the defendant's duty to conduct enquiries pursuant to s. 184 Housing Act 1996 then it is submitted that its concerns would have been met in this way, namely by further reference to the opinion of Doctor Browne."

In that report he dealt with her difficulties over the whole period saying among other things:-

"Irrespective of whether she worked or not, it remains a fact in my opinion that she has instabilities and frailties of personality which surfaced over the period in question and which make her clearly in my eyes a person in need of help with her daily affairs. … Again, in the period in early 2001, when she was late in making an appeal, the information I have is that this was due to her state of acute distress due to losing her place in a hostel but more importantly as a reflection of her enduring frail mental capacity to deal with such crises."

26. In his response Mr Ranjit Bhose set out "the relevant principles" as follows:-

"6. The defendant continues to rely on the submissions made in the skeleton argument (dated 11.02.02) at paras 2-6, which demonstrate that the discretion to consider a review out of time is a procedural discretion of exceptional width, the exercise of which this court should very rarely intervene in. So long as there is some consideration of material factors, any decision is unimpeachable (save on Wednesbury grounds).

7. Furthermore, this court, in assessing the lawfulness of the defendant's (second) decision not to extend time, is not conducting for itself any s. 202 review. Nor is it required to analyse whether the original s. 184 determination was flawed in the Lumley sense. That, however, is precisely what the claimant's further submissions invite the court to do.

8. In reality it would really only be if this court concluded – on a perusal of the papers – that (i) any review was highly likely to succeed and (ii) the reasons for not seeking a review were entirely explicable, that it might intervene. That is not this case." (Emphasis added.)

27. We add the emphasis because Mr Bhose was anxious to point out that he was not suggesting that the test to be applied was that (i) the review had to be highly likely to succeed or (ii) the reason had to be explicable. As the discretion was wide and unfettered, it was only in those circumstances that the court would interfere with the decision.
28. As for Doctor Browne's further report Mr Bhose said:-

"The defendant has not considered the further report of Doctor Browne, and nor should the court. The defendant's position on her further application for an extension of time is as set out in the letter of 4.3.02. There must come a time when there is some finality to litigation, and a finality to what the defendant may, in its discretion need to consider. That time has been reached."

29. On 12^th August 2002 Maurice Kay J. gave his reasons in writing as follows:-

"I have considered the written submissions of the parties in relation to the decision of LBL set out in the letter dated 4^th March 2002. I refuse permission to apply for judicial review. When I deferred further consideration of 12^th 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^th March 2002. Essentially, I am refusing permission in relation to the decision of 4^th March 2002 for the reasons set out in the respondent's written submissions which were received in the Administrative Court office on 19^th March 2002."

The application for permission to appeal

30. When rejecting the application for permission to appeal on paper, Buxton L.J. said:-

"The judge was concerned with the standard to be applied by the court before it intervenes in a procedural decision by the local authority involving a high degree of discretion in relation to a matter in respect of which the applicant is in mercy. He was right to accept a demanding standard in relation to prospects of success, not least in order to avoid investigation of a preliminary and procedural issue degenerating into a trial of the original decision. The council's ruling on the application for an extension could have been different, but it cannot be said that it was not open to it on the material. It was also open to it to refuse to take into account the second report of Doctor Browne in view of the time at which it was filed. No separate point arises under the Convention. Article 6 provides for reasonable procedural control of access to the court or tribunal, provided it is exercised in a judicial manner, which condition was fulfilled here."

31. On renewing the application for permission before Mummery and Rix L.JJ, Mr Burton submitted that 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 also submitted the decision was Wednesbury unreasonable. Mummery L.J. concluded 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."

Rix L.J. agreed and the matter was stood over for a hearing before us on notice to the respondent.

Counsels' submissions

32. Mr Jan Luba Q.C. now appears for the applicant and we are indebted to him as ever for his cogent submissions. His first and main submission is that the application raises an important issue which he defines in these terms:-

"What is the correct approach to be taken by a local housing authority, in the exercise of its discretion, when presented with a request from a homeless person that it review an adverse original decision where (i) the 21 day period for seeking a review "as of right" under s. 202(2) Housing Act 1996 has expired and (ii) the homeless person relies on new material relevant to an important issue in the original decision."

We should add that a similar question arises in a third situation, which is the actual situation before us, namely where the homeless person makes a further request for a review of the original decision out of time, his or her first request under s. 202(3) already having been refused.

33. Mr Luba submits in summary that the exercise of discretion must be conducted in a principled way. He accepts that if the applicant is late and the nature of the request is that he or she wishes the original decision to be reconsidered on the same or essentially the same material, then it may well be an appropriate approach to require that (i) some good explanation for the delay is advanced and/or (ii) some plain or obvious error in the original decision be identified before an authority agrees to undertake the review. He submits, however, that the position is different where the applicant is submitting fresh evidence which "shakes the foundation of" or even "goes to" the original decision. Since a review is conducted by another officer under an established procedure which requires all the material before him to be considered afresh, it is wrong for whomsoever has to decide whether to extend time and permit that review to form any appraisal of the merit of the fresh evidence. The decision maker must not usurp the function of the reviewer and must always bear in mind that the review will be conducted on the basis of any evidence including any further evidence that is then put before the reviewer. The sole test for the decision maker is whether the fresh evidence is material to the original decision. The Housing Act is there to protect the homeless and must be construed and implemented in a benign way.
34. As the second issue in the appeal he submits that if the approach of the decision-maker is held to be correct, his conclusion reached on the available material was perverse in the Wednesbury sense. The third and quite discrete issue is that the judge was wrong to reject Dr Browne's second report.
35. In response Mr Bhose whose submissions were presented with equally admirable conciseness, argued that where the decision maker had to decide whether or not to extend time for a review then it was always incumbent upon him or her to have regard on the one hand to the length of and reasons for the delay and, on the other hand, to the prospects of success of the review. He submits that there is a balance to be struck so that if delay is short and excusable, then the merits need not be great whereas if the delay is lengthy and inexcusable, then a good case on the merits needs to be established. As to the alternative submissions, he simply says the decision was well reasoned and the further report tendered far too late.

Granting permission to appeal

36. Having heard those arguments for a day, we conclude that it is proper to grant permission to appeal and to deal with the appeal on the basis of those submissions.

The statutory background

37. The statutory framework imposed by Part VII of the Housing Act 1996 must be borne in mind. S.184 places the local housing authority under a duty to make such enquiries as are necessary to satisfy themselves whether an applicant for housing assistance is eligible for that assistance and if so what duty if any is owed to him. Only a limited duty is owed to whomsoever has become homeless intentionally as defined in s.191 to be:-

"if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

It was and is the applicant's case that her state of mind during the period of her tenancy had been such that her failure to pay her rent could not fairly be described as "deliberate".

38. Before the 1996 Act a dissatisfied applicant could either seek a judicial review of the unfavourable decision or invite the housing authority voluntarily to reconsider their earlier decision. As McCullough J. observed in R v London Borough of Tower Hamlets, ex parte Nadia Saber (1991) 24 H.L.R. 611, 621:-

"It is not uncommon, after a decision has been reached that an applicant for housing under Part III of the Act became intentionally homeless, for a request to be made to reconsider the decision in the light of additional material or argument. Such a request is not the equivalent of a reapplication and does not cast on the housing authority the duties imposed when an application under Part III is made. It is otherwise if there has meanwhile been a material change of circumstances … The housing authority has, however, a discretion to accede to the request. A decision not to reconsider the original decision is clearly reviewable on ordinary Wednesbury principles. I do not accept that some more stringent criteria (referred to in argument as super Wednesbury) can apply… It may well therefore be that a challenge to a decision not to reconsider will infrequently succeed. Each case will of course fall to be considered on its own facts"

39. A plethora of applications for judicial review was no doubt perceived to be a mischief in need of cure. The 1996 Act for the first time provided by s.202 a statutory right to require an authority to review an earlier adverse decision. S.202, so far as is material, provides as follows:-

"(1) An applicant has the right to request a review of

(a) …

(b) any decision of a local housing authority as to what duty (if any) is owed to him …

(2) There is no right to request a review of the decision reached on an earlier review.

(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.

(4) On a request being duly made to them, the authority or authorities concerned shall review their decision."

40. S.203 sets out the procedure on a review. It is prescribed by regulations and quite elaborate safeguards are in place to ensure that the dissatisfied applicant has a fair consideration of his or her review. The decision on the review must be reasoned and notified in writing which must include notice to the applicant of his right to appeal to a county court on a point of law and of the period within which such an appeal must be made.
41. S.204 provides for that appeal as follows:-

"(1) If an applicant who has requested a review under s.202 –

(a) is dissatisfied with the decision on the review, or

(b) is not notified of the decision on the review within the time prescribed under s.203,

he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.

(2) An appeal must be brought within 21 days of his being notified of the decision …"

The full rigour of this stark time limit has been modified by an amendment made by the Homelessness Act 2002 which has inserted s.s. 2A as follows:-

"(2A) The court may give permission for an appeal to be brought after the end of the period allowed by s.s.(2), but only if it is satisfied –

(a) where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time;

(b) where permission is sought after that time, 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."

42. It is plain from the clear terms of s.202(4) that if the application for a review is made within the 21 day time limit, the applicant is entitled to the fresh consideration of his or her case whether or not fresh evidence is available to bolster it, or whether or not there has been any material change in the circumstances since the decision was taken. The entitlement is for a fresh consideration by a more senior officer and it can bring advantages of an oral hearing and representation at it. It can be a significant protection for the homeless.
43. If the 2l-day time limit has expired, then the applicant is at mercy and the local housing authority have a discretion whether or not to extend time. This appeal raises questions as to how that discretion was exercised.

The main issue: exercise of a discretion to extend time for review pursuant to s.202(3)

44. Having posed the question for our consideration to be to rule on the proper approach to be taken by a local housing authority in exercising that discretion, Mr Luba submits that the discretion must be exercised in a principled way. We would agree, but that, of course, begs the question of what the proper principles are. One can say this with confidence. The decision must not be made in bad faith or capriciously for improper motives. The decision must not be taken only in rigidly defined situations since that would involve an unlawful fetter on the discretionary power given by the Act. The decision must be taken responsibly in furtherance of, and not in excess of, the statutory power having regard to the statutory purpose and policy. It must be taken reasonably as explained in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.
45. It is not necessary to go further than that. The questions before us boil down to (i) whether the decision-maker had regard to matters which were irrelevant and, (ii) whether, assuming the local housing authority have kept within the four corners of the matters they ought to have considered, they have come to a conclusion which was irrational or perverse being so unreasonable that no reasonable authority could ever have come to it.
46. The discretion conferred by s.202(3) is unfettered in the sense that Parliament has not stipulated, as it often does, the factors to be taken into account in the exercise of the discretion which it confers. In the absence of such a statutory checklist, the discretion is wide. The question is: how wide? The answer is given by Lord Bridge in Reg. v Tower Hamlets L.B.C., ex parte Chetnik Limited [1988] 1 A.C. 858, 873G:-

"Thus, before deciding whether a discretion has been exercised for good or bad reasons, the court must first construe the enactment by which the discretion is conferred. Some statutory discretions may be so wide that they can, for practical purposes, only be challenged if shown to have been exercised irrationally or in bad faith. But if the purpose which the discretion is intended to serve is clear, the discretion can only be validly exercised for reasons relevant to the achievement of that purpose."

47. That calls for an examination of Part VII of the Act. The main building blocks of the statutory scheme are these:

(1) The local housing authority must enquire into the application for housing assistance and must notify their decision in writing informing the applicant of his right to request a review and the time within which to seek it: s.184(1), (3) and (5).

(2) If a review is requested in time and therefore "duly made", a review must be afforded in accordance with the prescribed procedure: s.202(4) and s.203.

(3) If the request is not made within 21 days, then the local housing authority may allow a longer time, see s.202(3), and, by inference, if time is extended, the authority must review their original decision.

(4) The authority must inform the applicant of the decision, of his right of appeal and the time for the appeal: s.203(4) and (5).

(5) There is an appeal but there is no right to request a review of an earlier review: s.202(2).

(6) The right of appeal is given against the decision which was taken on the statutory review provided for by s.202 and s.203.

(7) As originally devised, the appeal had to be brought within 21 days with no power to extend time but the 2002 amendment now gives the county court discretion to do so if good reason is shown for the failure to apply in time and for the ensuing delay.

(8) The appeal is on a point of law only.

48. It seems to us that Parliament was laying down a clear scheme which provided the means of ensuring that the local housing authority fulfils its duty to the homeless persons. The purpose was, therefore, to lay down the procedures and time limits to enable the orderly management by the local housing authority of its precious supply of housing but also to enable it, if it is appropriate, to grant an indulgence to the homeless person on as important a matter as his or her housing where a claim for review may be deserving enough to override the failure to act in time and so keep the door open for further assistance. Even within those parameters, one must always remember, as Lord Donaldson M.R. said in Reg. v Take-Over Panel, Ex. p. Guinness plc [1990] 1 Q.B. 146, 159D:-

"Irrationality, at least in the sense of failing to take account of relevant factors or taking account of irrelevant factors is such a difficult concept in the context of a body which is itself charged with the duty of making a judgment on what is and what is not relevant, although clearly a theoretical scenario could be constructed in which the panel acted on the basis of considerations which on any view must have been irrelevant or ignored something which on any view must have been relevant."

49. When the decision-maker comes to balance the factors he is entitled to place in the scales, it is well settled, as Lord Keith of Kinkel said in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, 764H:-

"… it is entirely for the decision-maker to attribute to the relevant consideration such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense."

Thus, even though the length of delay and reasons for it are often balanced against the prospect of success, it is possible to envisage circumstances in which an authority can rationally and properly conclude that even short delay for which there is a good explanation is not good enough to justify an extension of time for review. The authority might, for example, conclude that the case is so hopeless that a review would serve no useful purpose. Conversely, the authority could rationally and properly decide to grant an extension of time where there has been a long delay for which no explanation has been provided. Thus, the authority might take the view that the applicant has a powerful case on the merits and that it is able to take a relatively relaxed view when dealing with applications for an extension of time. Delay and prospects of success do not always have to be balanced against each other. An authority is entitled to reach a decision without forming a provisional view of the underlying merits of the case if, in all the circumstances, it thinks it reasonable for it to do so. It may, for example, reasonably take the view that, in the light of the length of the extension of time that is required and the poverty of the explanation, if any, for the delay, it can reasonably and properly refuse the application without any consideration of the merits at all.

The factors treated as relevant to this decision

50. In our case the principal factors taken into account were twofold. First the lack of proper explanation both for the failure to seek a review in time and for the late supply of medical evidence. Mr Luba does not seek to suggest this was an improper factor to take into account. It was plainly a most relevant consideration. Secondly, and this is the subject of Mr Luba's attack, the new material was not thought to be sufficiently compelling to suggest a good chance of success. Mr Luba contends that since the decision on review is taken by a wholly different officer, the officer charged with deciding whether to extend time or not should only have regard to whether or not the new information was material. We reject this argument for three reasons:-

1. Forming a provisional view of the eventual outcome of the case is a regular feature of the exercise of judicial discretion in allied circumstances and it cannot be unreasonable for an administrative discretion to treat prospects of success as a relevant consideration to be put into the scales before striking the ultimate balance. It may reasonably be thought to be a proper counterweight to delay. It may perfectly properly be thought to be important to assess whether the case sought to be advanced on review has no real prospects of success and is hopeless, or that it is arguable even if the prospect of success is less than fifty per cent, or that it has a seriously good chance of prevailing.

2. The reasonableness of taking account of prospects of success is all the stronger given the margin of appreciation enjoyed by the decision-maker to determine the criteria by which he approaches his task.

3. The materiality of the fresh evidence can, therefore, perfectly reasonably be treated as an aspect of assessing the prospects of success. The decision maker may bear in mind that if time is extended the ultimate decision is taken by another person in accordance with the regulated procedure for review but that does not mean that the decision-maker may not assess the strength of the case that will be laid before the reviewing officer if, in all the circumstances of the case, it is appropriate to do so.

51. Given the wide ambit of discretion conferred on the local housing authority, we are, totally satisfied that the decision of 4 March 2002 cannot be impugned on the basis that no authority, acting reasonably, could have taken the prospects of success to be a relevant and appropriate factor for their consideration. Mr Luba's main submission must fail.

The second issue: the rationality of the decision to refuse to extend time

52. The decision reached by Mr Jones on 4 March 2002 was well and sufficiently reasoned and, given the wide scope he had for weighing matters in the scales he had to hold, and given our judgment that he did not have regard to irrelevant factors, the conclusion he reached was an eminently reasonable one. The argument that it was perverse or irrational is simply unsustainable.

The third issue: admitting fresh evidence

53. Maurice Kay J. was right to refuse to extend the indulgence of the court any further to embrace evidence subsequent to 4 March 2002 and in effect force the housing department to entertain a third application to extend time for review. There was no adequate explanation for the failure to produce Dr. Browne's second report any earlier. It was too late to seek to introduce matters which in many cases were well over a year old. Too many bites had already been taken out of this cherry. Enough was enough.
54. That might be enough to dispose of this appeal save that during the course of the argument it became apparent to us that s.202(3) might no longer be in play, in which case quite different considerations might prevail. It seemed to us arguable that the statutory scheme set out in Part VII permitted only one application for review and only one application to extend time.

Extra-statutory discretion

55. Since the facts are quite complicated it is worth summarising what has happened. The s.184 decision was taken on 24 January 2001. The applicant failed to seek a review in time. Her July application was treated as a fresh application. She formally requested an extension of time for a review on 31 August but that was rejected on 15/25 October and the correctness of that decision is no longer challenged. That was the application to which s.202(3) applied. The letter of 24 January 2002 was a request for a further review of the January 2001 decision. That fell outside the statutory scheme. The decision taken on 4 March 2002 in response to that application has to be judged in that light.
56. If and insofar as the applicant was seeking to review the October decision as a decision "reached on an earlier review", she had no right to do so: see s.202(2). We accept, however, that a refusal to extend time might arguably be something different from a decision reached on an earlier review on the basis that the refusal to extend time has precluded any decision by way of review. Thus what she was seeking was a second chance to seek a review of the January 2001 decision. Although this is not expressly covered by s, 202, we wondered in the course of the argument whether she was in fact entitled to make repeated applications for extensions of time. It was not a matter which counsel had come prepared to argue but we have been greatly assisted by Mr Luba's placing before us two decisions of this court which bear somewhat upon the point.
57. In R v Westminster City Council, ex parte Ellioua (1998) 31 HLR 440, this court refused a renewed application to move for judicial review of a refusal by the local housing authority to conduct a review of their decision. There had been a full and proper review of the s.184 decision but no appeal against the decision taken on review. Instead the applicant on advice sought a further review of the original decision because it had been based on a mistaken view of the facts. Judge L.J. held:-

"In my judgment the express exclusion [by s.202(2)] of any such right [to request a review of the decision reached on an earlier review] does not have the effect of precluding the authority from reconsidering the decision if it is minded to do so … …..although it was open to the authority to do so, they were not required to carry out this further re-review, and they refused to accede to the application."

On the facts of that case he held that a judicial review based entirely on errors of law was inappropriate given the existing remedy of an appeal to the county court where the same errors could have been canvassed. L.JJ Robert Walker and Peter Gibson agreed.

58. In Demetri v Westminster City Council [2000] 1 W.L.R. 772 the Court of Appeal was considering an appeal from the decision of the county court judge striking out the appeal made to him under s.204 of the Act. There, there had been a review followed by a request to reconsider that decision taken on that review. The housing authority agreed to reconsider but then confirmed its previous decision. The unsuccessful applicant was out of the then strict 21 day time limit for appealing against the first review decision and so sought to appeal the reconsidered decision within time. Douglas Brown J. held at p.778:-

"In my judgment this appeal must fail. There is no doubt that a council in its discretion can decide to reconsider or review a review decision formerly given under s.202(1). This was an appropriate case for this council to do so where it was being represented to it that on the original review some material argument had not been considered."

He held, however, that the appeal to the county court lay only against the original decision made on review, not against the reconsideration of that decision.

59. Whilst reminding ourselves that we have not heard full argument on these matters, we nonetheless feel able to say that we are in agreement with those judgments. It seems to us to follow that a housing authority is not bound to entertain a succession of applications for review or for extensions of time for review given that Parliament has circumscribed the applicant's right to seek them. The scheme envisages only one review, or, if the 21-day time limit has expired, one application to extend time for review. That is not to say that a local authority may not choose as a matter of their discretion to entertain such a request for a further review or a further extension of time. This may be granted for sound pragmatic policy reasons to prevent the kind of roundabout applications to which Mr Luba referred, where the disappointed applicant simply goes to the neighbouring housing authority with the result that, if successful, the matter is referred back to the first authority. The authority may choose to reconsider matters of fact or new matters of fact which would lie outside the scope of an appeal to the county court. These are, however, decisions of good housing management and this extra-statutory discretion of the local housing authority is likely to be held to be close to being absolute. An attempt judicially to review a refusal to consider such a further indulgence is likely to receive the same treatment as was meted out in Nacion where Tuckey L.J. held at p.1100:-

"It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have, bearing in mind that they exercise it, knowing the circumstances of the applicants, the range and availability of accommodation in their area …"

Lord Woolf M.R. was of like mind, saying:-

"I have difficulty in envisaging cases where application for judicial review will be appropriate."

60. Upon a proper view of the facts this is exactly such a case. In so far as the local housing authority was exercising such an extra-statutory discretion - and Mr Jones contemplated that he was - he was fully entitled to cry, "Hold, enough". In fact, as we have seen, he gave full reasons why his department was not prepared to accede to the request. This decision is even further beyond challenge by judicial review than a decision taken under s. 202(3).

Conclusion

61. We all have some sympathy for this unhappy young lady but we are bound to dismiss her appeal. So much time has passed since the crucial decision of 24th January 2001 that she may now perhaps be able to make a fresh application for assistance based upon her present circumstances. That, of course, is a matter between her and the housing department.