Following on from the Court of Appeal's judgement in the case of Stanley v Welwyn Hatfield Council [2020] EWCA Civ 1458 we now have the very important judgement from the same court of Ngnoguem v Milton Keynes Council (2020] EWCA Civ 396 which dealt with the issue of late S203 reviews.
A Reminder of the Law
If the applicant is dissatisfied with the review decision then, in accordance with Section 204, they can appeal to the county court on a point of law as follows:
(1) If an applicant who has requested a review under section 202 –
(a) is dissatisfied with the decision on 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.
In Stanley v Welwyn Hatfield Council [2020] EWCA Civ 1458 the Court of Appeal gave an obiter dicta view that a review decision which is reached late may still be valid.
The court said that it would be “surprising” if parliament had intended that, once a review decision has been made, the parties and the court should ignore it and go through an argument as to the adequacy of the original decision.
As this was an obiter dicta it was not legally binding but we did not have to wait long for a binding judgement from the Court of Appeal. The matter of late reviews was addressed in the case of Ngnoguem v Milton Keynes Council (2020] EWCA Civ 396.
Background
Ms Ngnoguem had applied to Milton Keynes Council as homeless and was issued with a Section 184 decision on the 10 April 2018. On 10 September 2018 the Applicant requested a review of the S184 Decision and her out of time review was accepted by the local authority. The review should have been notified to Ms Ngnoguem by 5 November 2018. However, the Review Decision, upholding the original decision, was issued on 9 November 2018, four days late. Ms Ngnoguem brought a s.204 appeal of the s.184 decision and then, and appeal of the s.202 review decision, stating “this appeal is brought without prejudice to the Appellant’s contention that the review was completed out of time and therefore of no effect.”
The County Court dismissed the appeal against the s.184 decision, on the basis that the review decision was valid despite it being late, and held against Ms Ngnoguem on the appeal of the review decision. Ms Ngnoguem appealed to the Court of Appeal the dismissal of the appeal of the s.184 decision.
Court of Appeal Judgement In an eagerly awaited judgment for every Reviews Officer the Court of Appeal found in favour of Milton Keynes Council. The Court of Appeal concluded:
Where an applicant is dissatisfied with a s. 184 Decision, their primary remedy is to request a Review Decision;
If such a request is duly made, the authority is under a mandatory obligation to review its s. 184 Decision and to notify the applicant of its decision in the light of that Review;
Where the authority provides a Review Decision, it becomes the authority's sole effective and operative decision whether the Review Decision is provided within time (as specified in the regulations or as extended by agreement in writing) or is provided late;
Where the applicant has requested a review and is not notified of the Review Decision within time then, provided a (late) Review Decision has not been notified before the appeal is brought, the applicant has 21 days from the date on which it should have been notified to bring an appeal to the County Court on any point of law arising from the original s. 184 Decision. If the authority provides a Review Decision after such an appeal to the County Court has been commenced, it will render the appeal academic save in exceptional circumstances;
Where the applicant has requested a review and is not notified of the Review Decision within time but a (late) Review Decision has been provided before the appeal is brought, the applicant's remedy is to appeal to the County Court on any point of law arising from the Review Decision (if so advised);
An appeal to the County Court against the s. 184 Decision should not be commenced after notification of a Review Decision, whether that notification was in time or late.
Conclusion
Unless there is an appeal to the Supreme Court it is now very clear that late s.203 review decisions are valid and supersede any appeal made against the original s.184 decision. There is, therefore, little or no merit for an applicant appealing against the original decision. They and/or their representative would be better off working with the local authority to ensure that the review decision can be concluded in a reasonable time period, which can often mean that the review period has to be extended e.g. due to further enquiries being made etc.
Costs of Original Appeal
If there had been an appeal against the original decision which later becomes academic then the only issue will be who is responsible for the costs of bringing such an appeal. The Court of Appeal concluded:
The proceedings should normally be compromised, stayed or dismissed on terms as appropriate. The position would be similar to that which obtains where a public body withdraws a decision in response to Judicial Review proceedings. Questions of costs sometimes loom large, but a principled approach will readily identify who is responsible for the (properly) issued proceedings having become academic.
