High Court grants leave for “out of time” appeal

Applicants who wish to review or appeal a negative homelessness decision must observe certain time limits.  These limits are set out in the Housing (Northern Ireland) Order 1988 (as amended). Carmel Ferguson, solicitor with Housing Rights Service, discusses our recent successful case at the High Court, where we were granted leave to lodge an appeal outside of these time limits.

Time limits

Although the Housing Executive will usually allow applicants 40 days from the date of the decision letter to request a review, the legislation states that a request must be made within 28 days.

If an applicant is dissatisfied with a decision on review, or is not notified of the decision on the review within eight weeks, s/he may appeal to the county court on any point of law arising from the review decision or the original decision. An appeal in the county court must be lodged within 28 days of the applicant being notified of the decision.

Although the Housing Executive does not have the discretion to extend the time for lodging an appeal in the county court, the court may give leave for an appeal to be brought after 28 days.   An application may be made for leave to bring an appeal outside the 28 day period either before the period has expired or after the time has expired.

The court will only grant permission if satisfied that:

• there is a good reason for the applicant to be unable to bring the appeal in time, where leave is sought before the end of the 28 day period; or
• that there was a good reason for the applicant's failure to bring the appeal in time and for any delay in applying for leave where leave is sought after the 28 day period ends.

We recently acted for a client who needed leave to lodge an appeal outside of the time limit.  Permission was granted as we were able to show that there were good grounds for the delay in making an application.

Our case

Our client, Ms Razna made a homelessness application to  the Housing Executive. At the time, Ms Razna was homeless and was staying temporarily in hostels or with friends. She was struggling with addiction issues.  Mr Justice Stephens described her circumstances as “…(living) in permanent chaos and her personal, physical and emotional health is in continual turmoil”.

She received a negative decision and requested a review.  The original decision was upheld and Ms Razna was sent a letter explaining that the Housing Executive had no further duty towards her.  Another agency asked us to help Ms Razna lodge an appeal at County Court.  The combination of Ms Razna’s chaotic lifestyle and office closures over the Easter holidays meant that the appeal was lodged 3 days outside the 28 day time limit.

Requesting permission for an out of time appeal at County Court

Our initial application for leave to make an out of time appeal was rejected by a County Court judge, who decided that there was insufficient good reason for the delay and that the court should not exercise its discretion to allow the appeal out of time.

Housing Rights appealed that decision to the High Court. The appeal was successful.

When was applicant “notified” of the decision?

The 28 day period for appeal runs from the time that the applicant is notified of the decision (Article 11C (2)) It is essential for an adviser to be able to ascertain the applicable date. 

In Ms Razna’s case, the decision letter was sent to a homeless support worker in a hostel where the applicant sometimes stayed and was received by the support worker on 4th April 2014. The support worker could not locate Ms Razna until the 18th April. Ms Razna was briefly told of the decision on that date, but, due to the Easter holiday, an appointment could not be made to discuss the matter fully until Wednesday 23rd April.

Delay in lodging Appeal

The support worker referred the applicant to Housing Rights on 23rd April. An appointment was made to see a housing adviser on 29th April who arranged for the client to meet with our solicitors on 6th May in order to complete legal aid forms.

A legal aid application requires detailed financial and other information which clients cannot always readily produce. The forms required amendment and were resubmitted on 13th May. Legal aid was granted on 16th May. The Notice of appeal was lodged on 19th May.

The High Court accepted that the review decision was notified to the applicant on 18th April, when the support worker told her about it. The appeal therefore should have been lodged on 16th May and therefore was three days out of time.

Good reason for delay?

The court considered whether “good reason” should be construed in the same way as in the test for extending time for judicial review.

The Judge remarked that

“In the context of social housing the fundamental purpose is to provide for individuals who are deprived or who have difficulty in managing their own affairs. The nature of the reasons which could be held to be good is bound to be wider than in judicial review applications. Inevitably the circumstances held to amount to a good reason in a judicial review application will also be held to amount to a good reason in relation to this type of application but it should be anticipated that a good reason may be more readily found in the context of social housing so that the purpose of the legislation is not undermined”. The Honorable Mr Justice Stephens  [2015] NIQB 13

He stated that good reasons can include

• delays in obtaining legal aid
• the applicant having no funds to support the appeal
• the applicant's socially disadvantaged position
• whether the applicant suffers from alcohol or drug addiction
• whether the applicant is chaotic in her lifestyle
• whether the applicant needs to obtain and rely on advice
• whether that advice comes from charitable organizations who rely on legal aid or other funding
• lack of a permanent address where the applicant can receive letters
• lack of money to top-up mobile phone
• lack of a telephone landline

The Judge emphasised that;

“All those are matters which it might be decided in a particular case amounts on the facts of that case to a good reason for the purpose of Article 11C. In listing out those potentially good reasons I make it clear that there is no definitive list of such reasons but rather there is an assessment on the facts of each individual case.”  The Honorable Mr Justice Stephens  [2015] NIQB 13

Conclusion

The judge considered that the applicants personal circumstances, coupled with the other factors involved, such as the holiday period, were all individually and/or cumulatively good reasons with Article 11C of the Housing (Northern) Ireland Order 1988, as amended.

In deciding whether he should exercise his discretion to give leave out of time, the Judge took in to account that:

• the delay was just three days
• there was no suggestion that the appeal was hopeless 
• there was no prejudice to the Executive by reason of the three day delay and
• there would be substantial prejudice to the applicant if she was entitled to accommodation and that accommodation was not provided

Appeal successful

The judge allowed the appeal and granted leave for the Appeal to the County Court to be brought outside the 28 day period. The case has now been referred back to the County Court for a full hearing on the appeal against the negative homelessness decision