EWCA Civ 116
A person with a statutory right to appeal against a decision and who has not done so in time cannot raise arguments appropriate to such an appeal in defence to a claim for possession.
The council provided T with temporary accommodation as a homeless person. Her tenancy was not therefore a secure tenancy (para 4 of Schedule 1 to the Housing Act 1985). She was subsequently offered permanent accommodation which she refused. The council took the view that the refusal was unreasonable and a decision letter was served on T. She did not appeal that decision and remained in occupation of the flat. The council then served a notice to quit and brought possession proceedings.
The Deputy District Judge refused to order possession. On appeal the Circuit Judge also refused the order on the basis that the decision letter had a defect and so was invalid. This meant, so the judge held, that the Council continued to owe T a duty to house her pursuant to Part VII of the Housing Act 1996 and that she was entitled to retain possession of the flat by virtue of her right to respect for her home under article 8 of the ECHR. The council appealed to the CA.
There was a minor breach in the procedure in that the decision letter did not quite satisfy the requirements of section 193(7)(b) of the 1996 Act. However, Ts remedy was to appeal the councils decision. That could have been dealt with on the claim for possession even though not formally made. However, it would inevitably have been dismissed as being out of time. There was no breach of Article 8. Neuberger LJ:
- 32 ... Where, as here, possession proceedings are brought by the authority, and the defence involves impugning a decision of the authority under Part VII of the 1996 Act, which could have been, but was not, appealed, and the time for appeal has long since expired, it appears to me to be wrong in principle that the court hearing the possession action should be able freely to reconsider, and if necessary to reverse, the authority's decision with regard to its duty.
- 33. Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case section 193, without taking the concomitant burden, namely the procedure and time limits in sections 202-204.
- 40. .. the judge could have properly proceeded with the hearing on the basis that he had an application (albeit not in the correct form, or even expressed as such) for permission to appeal out of time under section 204 against the Council's decision that it owed the respondent no further duty to house her under Part VII of the 1996 Act. Had he so proceeded, I consider that he would have been bound to conclude that it would be wrong to allow the respondent to appeal so long out of time, in the absence of any satisfactory, or, indeed, any, explanation for the delay. As a result, he would have dealt with the Council's claim for possession of the flat on the basis that their decision that they owed no further duty to house the respondent was correct, whereupon the whole basis for her defence to the claim would have fallen away.