England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE MITCHELL

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th January 2011

Lord Justice Toulson:

1. From March 2007 to June 2009 the appellant was living at a property in Hounslow under the terms of an assured shorthold tenancy. He fell into arrears of rent, or so his landlord claimed, and he was evicted from the property after the landlord obtained a possession order against him. According to the landlord, the arrears were then over £2000 and no rent was paid after he received a notice to quit.
2. On 22 June 2009 the appellant applied to the respondent local authority for assistance as a homeless person under the provisions of Part 7 of the Housing Act 1996 ("the Act"). He was placed in temporary accommodation at an address in Isleworth. After carrying out an inquiry under Section 184, the local authority notified him by a letter dated 13 August 2009 that it was satisfied that he had made himself intentionally homeless, within the meaning of Section 191 of the Act, because by failing to pay the rent he had deliberately failed to do something in consequence of which he ceased to occupy the premises that were available to him for his occupation as a tenant.
3. On 19 August 2009 solicitors acting for the appellant wrote to the local authority under Section 202 requesting a review of its decision. There are statutory provisions about how such a review is to be conducted; these are contained in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 SI 1999 No. 71. There is also a Homelessness Code of Guidance for local authorities to which local authorities must have regard under Section 182.
4. With the letter requesting a review the appellant's solicitors sent various documents, including a statement of the appellant dated 18 September 2009. The letter concluded:

"We therefore put it to the review panel that our client was not in rent arrears but this was claimed falsely by our client's ex landlord."

5. In his statement the appellant said

"6. I believe the only reason why my landlord pursued possession proceedings was because I complained to him about the disrepair issues within the property. The reason why I did not want to complain to the council directly was because I thought my landlord was the person to whom I had to go to discuss matters concerning my accommodation. I was not aware I could go to the council as my tenancy was a private one. I complained about many things to the landlord. I did not have a lock on my room door and I was burgled. I had asked my landlord many times before the burglary that I needed a lock on my door but he did not get round to it. I reported the incident to the police but they told me that as the door was unlocked, they could not do anything about it. I had even offered to put my own lock on the door but Mr Brar [the landlord] refused saying he would get round to it which he did not.

7. I also complained about there not being any hot water in my bathroom, no heating in my bedroom, no space to store my medication and no lock on my door. I raised these complaints often but my landlord never addressed them.

8. I disagree with the council's decision that I am intentionally homeless because of rent arrears. I always paid my rent on time. During my tenancy, Mr Brar never once told me I was in arrears...."

The thrust of the statement is clear, that the appellant was not in arrears of rent but that he had been evicted because the landlord had become tired of his incessant complaints about various matters relating to the condition of the property.

6. The outcome of the review was that the reviewing officer wrote a seven-page letter to the appellant dated 28 September 2009 confirming the original decision. The main point of the present appeal arises from the final paragraph, which read:

"This letter represents the Council's decision on review and, under the Act, concludes all internal review processes. If you are dissatisfied with this decision, you may appeal to the county court on point of law relating to this decision under Section 204 of the Act. Any application for appeal must be made within 21 days of the date of the letter."

7. Earlier in the document the reviewing officer referred to the appellant's evidence regarding his complaints about the property in the context of considering what was the true cause of his eviction. She commented:

"In this statement you also go on to suggest that the Property had a number of disrepair issues and you brought this to the attention of the Landlord on a number of occasions. You have also previously indicated that you feel that the Landlord had evicted you because you incessantly complained about these disrepair issues. The Landlord however stated that he had no problems with you as a tenant and in fact, whilst you paid your rent on time during the times you were employed, you managed your tenancy well. You suggest that you brought the disrepair issues to the attention of the Landlord from the start of your tenancy. However, you were only evicted from the Property after you had accumulated rent arrears. Furthermore, Ms Moore (another tenant) has also suggested that she has complained about various disrepair issues, I note however, that she has not been evicted. I therefore conclude that the reason the Landlord evicted you was because of your accumulated rent arrears, not because you complained about disrepair issues."

8. On the question of fact whether the appellant was in arrears of rent or not, as is apparent from the passage which I have read, the reviewing officer was not persuaded that the landlord's version of facts was wrong. The landlord produced documentary evidence to support his claim that the appellant had failed to pay his rent and the appellant had no documentary evidence to the contrary.
9. The review decision letter was sent by fax to the appellant's solicitors on the date on which it was written and within usual office working hours. On 13 October 2009 the appellant issued a notice of appeal in the Uxbridge County Court under Section 204. The notice of appeal asked that the Section 202 decision dated 28 September 2009 be varied to state that the appellant was owed a full housing duty under Section 193 of the Housing Act 1996, as amended, or that the decision be set aside and remitted to the local authority for a fresh decision.
10. The accompanying grounds of appeal and skeleton argument made plain that the appellant wished to advance two lines of attack against the local authority's decision. The first was an alleged procedural deficiency, in consequence of which the appellant argued that no effective review decision had ever been made, and therefore the decision against which he was entitled to bring a statutory appeal was the original decision that he had made himself intentionally homeless rather than the review decision. His alternative ground of appeal was that the review officer had failed to take into account all relevant considerations in arriving at the decision on review.
11. The case was transferred to the Central London County Court where the appeal was heard by HHJ Mitchell on 17 December 2009. The appellant was represented by Mr Vanhegan, who also appears for him today. The judge considered both lines of attack advanced by the appellant, which Mr Vanhegan has renewed before this court. The judge rejected them and dismissed the appeal.
12. The appellant was given leave by Mummery LJ to bring a further appeal because the first issue involved a point of general importance about the construction of Sections 203 and 204 of the Act.
13. Section 203 provides:

"(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.

[…]

(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.

(4) If the decision is –

(a) to confirm the original decision on any issue against the interests of the applicant…

they shall also notify him of the reasons for the decision.

(5) In any case they shall inform 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 (see section 204).

(6) Notice of the decision shall not be treated as given unless and until subsection (5), and where applicable subsection (4), is complied with.

(7) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision.

(8) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him or on his behalf."

14. Regulation 9 of SI 1999 No. 71 provides that in a case such as the present, the period within which notice of the decision on a review under Section 202 shall be eight weeks from the day on which the request for a review is made.
15. Section 204 provides:

"(1) If an applicant who has requested a review under section 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 section 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 or, as the case may be, of the date on which he should have been notified of a decision on review."

16. The appellant's argument on this issue is as follows:

1. The review decision letter dated 28 September 2009 was defective because the final paragraph did not comply with Section 203(5) in that it stated that the time for appealing to the county court was 21 days from the date of the letter, whereas it should have said that it was 21 days from his being notified of the decision.

2. By reason of Section 203(5) notice of the decision was therefore not to be treated as having been given.

3. Accordingly, his appeal under Section 204(1) had to be treated as an appeal from the original decision.

4. The judge in the county court erred in failing so to treat it.

17. Mr Broatch in his written submissions challenged each step in that argument. He submitted: 1) The review decision letter complied with Section 205(5) because it correctly informed the appellant of the period within which an appeal must be made, ie 21 days from the date of the letter, that being the date on which he was notified of the decision by virtue of it being faxed to his solicitor.

2) If, contrary to his first argument, Section 203(4) was not complied with, either because there was a defect in the form of the letter or because notification to his solicitor was not the same as notification to the appellant, the consequence was that the time limit for appealing did not start to run against him, but it did not follow that the decision must be treated as a nullity so that the appellant could not legally appeal against it even if he chose. 3) He issued a notice of appeal against the decision on the Section 202 review and the court had jurisdiction to hear it.

18. In support of his submissions Mr Broatch invited the court to take a purposive approach to the statute in keeping with the current practice of the courts when considering procedural provisions in statutory schemes. He referred in particular to the decision of the House of Lords in R v Soneji [2005] UKHL 49 [2006] 1 AC 340.
19. In response, Mr Vanhegan argued: 1) Sending the decision letter to the appellant's solicitors by fax did not amount to notifying him of the decision within the meaning of the Act;

2) Even if it did, the decision letter was still defective in form, regardless of the fact that it was notified to him on the same day;

3) The language in the Act allowed no scope for interpretation in the way for which the local authority argued. The Soneji  line of authority did not assist the local authority since the language of the Act provided explicitly that notice of a decision was not to be treated as given unless there was proper compliance with the Act's requirements;

4) There has been no waiver by the appellant of his right to argue that there was no review decision capable of being the subject of a statutory appeal. His grounds of appeal and skeleton argument in the county court made it clear that his primary case was that there had been no effective review decision and that his appeal was against the original decision.

20. My conclusion is that the appellant's argument is flawed for two reasons. First, I accept the local authority's argument that the notification of the decision given to the appellant's solicitors was a valid notification. The request for the review was made by solicitors acting on his behalf. It was proper for the authority to assume that those solicitors had authority to receive notification on his behalf of the result. Mr Vanhegan sought to persuade the court that this was a wrong approach to the interpretation of the Act, because there are a number of instances in which the Act refers to a person's agent, and the omission of any such reference in Section 203(5) carried with it the necessary implication that the notification must be to the applicant in person. By way of example he referred to Section 203(8) set out above, which provides that notice is to be treated as having been given if it is made available at the authority's office for a reasonable period of time by the applicant or on his behalf. In short, argued Mr Vanhegan, the notice must be given to the applicant in person and, if he is told that a decision is available for his collection, it may then be collected by his agent, but that does not detract from the requirement which he submits is to be inferred from the Act that the notification of the decision must be given to the applicant in person. Mr Vanhegan referred to various other provisions in the Act which similarly make reference to the applicant or someone acting on his behalf.
21. In my view Mr Vanhegan tries to put too much weight on those provisions. It could conversely be argued that those provisions are illustrative of the fact that an applicant need not necessarily be acting in person but can authorise somebody to act on his behalf. Ordinarily speaking, a person is entitled to appoint an agent to act on his behalf. There are sometimes statutory schemes which require personal service on an individual. No such requirement is spelled out in this case, and in my view the appointment of solicitors to request the review carried with it a holding out of those solicitors as duly authorised to receive notification of the outcome.
22. The court was properly informed by Mr Vanhegan that in a case last week before Supperstone J, Dragic v London Borough of Wandsworth, the judge reached the same conclusion on the construction of the statute after referring to a number of authorities to which I have not felt it necessary to refer. He concluded that notice is sufficient to comply with the Act if given to the applicant himself or to his agent, provided that the agent is authorised to receive it on his behalf or may be presumed to have such authority. I concur.
23. In addition to the fact that in this case the request for review was made by the applicant's solicitors, there was also a letter of authorisation signed by the applicant permitting the local authority to write to his solicitors on matters relating to the application. In my view, both that letter and the fact that the application for review was made by solicitors on his behalf would, independently, lead any reasonable authority to suppose that the solicitors had his authority to receive notification of the review decision.
24. Mr Vanhegan submitted that it was necessary in the interests of justice to adopt a stricter approach, because there was always a risk that an applicant might not receive information about the decision from his solicitors for some time. 21 days is not a lengthy period for appealing, and there could be a real risk that an applicant might find that the time for appeal had expired before he had himself had sufficient time to consider it. The court has a discretion to extend the period of time for appealing and, if there were a case where an applicant claimed not to have received notice and to be prejudiced as a result, he would be able to raise that matter before the court.
25. On the basis that notification to the solicitors was notification to the applicant, it follows that the letter correctly informed the appellant of the period in which an appeal had to be brought. The period of 21 days from the date of the letter and from the date of notification of the decision were one and the same. I would not construe Section 203(5) as imposing a linguistic requirement that the decision letter must use the precise language of Section 204(2); what matters is the substance of the information required to be supplied rather than the precise form of words in which that information is conveyed. However, even if I were to construe Section 203(5) as requiring the local authority to use the form of words "within 21 days of his being notified" of the decision, I would reject the argument that use of an alternative expression which would have the same practical effect would vitiate the letter. The modern approach towards breach of a statutory procedural requirement is to consider the underlying purpose of the requirement and whether it follows from consideration of that legislative purpose that any departure from the precise letter of the statute, however minor, should amount to the document being regarded as a nullity.
26. Secondly, I accept the local authority's argument that the purpose of Section 203(5) and (6) is to ensure that the applicant has knowledge of his rights of appeal and to preserve his time for appealing until such time as he has been properly informed of his right to appeal. To go further and to prevent him from being able to appeal to the county court under Section 204 against a review decision which he knows all about would not advance the purpose of the relevant provisions; on the contrary, it would run counter to the statutory purpose. Section 204(1) set out above provides that if an applicant, who has requested a review under Section 202, is dissatisfied with the decision on the review he may appeal to the county court on any point of law. In this case the applicant had requested a review, he was dissatisfied with the reviewing officer's decision and he did issue a notice of appeal against it. The court had jurisdiction to entertain it, as the judge rightly held.
27. The other ground of appeal is a repetition of the appellant's argument that the reviewing officer failed to take all relevant considerations into account. It was not this ground which led Mummery LJ to grant leave of appeal, and it is debatable whether his grant of leave includes it, but I think that we ought to proceed on the basis that he does have leave to argue the point, since the grant of leave was not specifically limited to the first point.
28. The argument goes as follows. It is a prerequisite of a finding of intentional homelessness that the applicant must have given up possession of the premises which it was reasonable for him to have occupied. See Section 191(1) provides:

"A person becomes homeless intentionally 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."

29. There were therefore two matters for the reviewing officer to consider, according to Mr Vanhegan's submission. The first was whether it would have been reasonable for the appellant to have continued to occupy the premises, having regard to the various complaints which he made about their condition. The second question was whether he had deliberately failed to do something in consequence of which he ceased to occupy them. The reviewing officer's decision focussed on the second question but not on the first. She therefore failed to give proper consideration to all the matters which she ought to have considered.
30. The difficulty with that argument is a factual one. As I have said, the thrust of the case made by the appellant on his application for a review was that the reason for his eviction had nothing to do with non-payment of rent; indeed he was not in arrears of rent, but he had been evicted because he was proving to be a tiresome tenant, constantly complaining about matters relating to the state of the property. That was the ground put forward by the solicitors in their letter requesting review. It was in that context that he referred to his history of complaints. I accept that if an applicant for review sets out facts which would give rise to an arguable case that the premises were not reasonably fit for his occupation, that is a matter which the reviewing officer ought to take into account. Often an applicant who is homeless, or claims to be homeless, will be in desperate circumstances and may be ignorant of the statutory structure. It would be wrong for reviewing officers to confine their attention only to legal points which are explicitly articulated. They must have regard to the facts put forward. But this was a case of an applicant who was being represented by solicitors. I do not consider that any reviewing officer reading his statement would have taken it as giving rise to a real question whether the premises were reasonably fit for his occupation. Matters such as the absence of a lock on his door were far removed from the sort of matters which might make the premises unfit for occupation. The reviewing officer considered, in my judgment, the matters raised by his statement and request for review as needing consideration. She dealt with them in detail and reached a conclusion which was properly open to her on the evidence.
31. For those reasons I would dismiss this appeal.

Lord Justice Wilson:

32. I agree.

Lord Neuberger, MR:

33. I also agree. The only difficult issue, which does not strictly arise, concerns the effect of a notification of a decision under Section 203, which gives no or defective information as to the period within which "such an appeal must be made". If the letter in the present case of 28 September 2009 had only been received by the applicant's solicitors a day or two after it was sent, it would in my view have "complied with" Section 203(5) within the meaning of Section 203(6), as Mr Broatch contended in his brief submissions on behalf of the respondent. In my opinion, in such a case, the notification would have been effective notice, because there would have been substantial compliance with the requirements of Section 204(5). It may be that, as Mr Vanhegan submitted on behalf of the appellant, determination of substantial compliance may occasionally require investigation of the factual background by the court. However, if this is ever necessary it would, I think, be only on very rare occasions. If it is sometimes necessary, I see nothing wrong with the fact that, in some rare cases, a brief investigation of the factual issue may be required.
34. The essential point is that in my view, as my Lord has said, it makes much better practical sense to give Section 203(6) the effect for which Mr Broatch contends. If notification is given to an applicant which informs him of his right of appeal, and misinforms him by a couple of days as to the period within which he must appeal, there are three possibilities. The first is that he appeals within time. If he does so, it would be little short of absurd if the appeal could nonetheless be ineffective. Secondly, he appeals out of time. In such an event, given that time can be extended under Section 204(2)(a), it seems to me that it would be extended effectively as a matter of course, if the court was satisfied that the fact that the appeal was out of time was attributable to the misinformation in the notification.
35. The third possibility is that the applicant does not appeal but proceeds on the basis that the decision in the notification is effective. In those circumstances it would be a little surprising if, after the notification was then understandably treated as valid by both the applicant and the housing authority, it could then be argued on behalf of the applicant at some later stage that he had never been notified of the decision.
36. Mr Broatch accepted that if the notification gave no notice of the right to appeal, or contained no information as to the time within which an appeal could be brought by the applicant, then there would have been no notification under Section 203. That may well be right; a point must come when the notification falls so far short of the requirements of Section 203(6) that notice is not treated as having been given. In those circumstances, as Mr Broatch says, it is not the case that the decision is null or ineffective; it is merely the consequence that notification of this decision is treated as not having been given.
37. It is neither necessary nor appropriate -- indeed I think it would be dangerous -- for us in this case to try and spell out in general terms at what point notification would fall short of satisfying Section 203(6). All I would say is that, although it is strictly obiter in this case, in my view if the notification in the present case had been received by the solicitors a couple of days after it was sent, so that the appellant was misinformed as to the period within which he must appeal by some two days (albeit in good faith) that would constitute valid notice for the purpose of Section 203(6).
38. In my view, for the reasons given by my Lord, Toulson LJ, this appeal should be dismissed.

Order: Appeal dismissed