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Court of Appeal hands down ruling in housing case on where authorities issue late reviews

The Court of Appeal has ruled on two points of law that arose over a case where an applicant first wished to establish a local connection with Milton Keynes but later did not.

In Ngnoguem v Milton Keynes Council [2021] EWCA Civ 396 Lord Justice Stuart-Smith, with whom Lord Justice Arnold and Lady Justice Macur, gave rulings in a case brought by Audrey Ngnoguem against Milton Keynes Council.

He said the case raised two points of law. The first was where an applicant who is dissatisfied with a decision made pursuant to s.184 of the Housing Act 1996 requests a review of that decision pursuant to s.202 of the Act, what is the legal status of the requested decision if the authority issues and notifies the applicant of the review decision outside the time specified by applicable regulations?

The second was where a review decision has been issued and notified to the applicant late, is it open to the applicant to commence an appeal to the County Court against the original s.184 Decision relying upon the terms of s.204(1)(b) of the Housing Act 1996?

HHJ Melissa Clarke had two appeals brought before her by Ms Ngnoguem at the County Court and held that the review decision, despite being issued late, overtook the original s.184 decision and became the decision she could appeal.

She then dismissed the appeal against the s.184 decision without further consideration of the merits and considered but dismissed the appeal against the review decision.

From about September 2017 Ms Ngnoguem and her young daughter lived in a refuge in Merton, having fled their family home because of domestic violence.

She approached Milton Keynes because she felt she would be safe there from her ex-partner and this application was successful.

But even before the s.184 decision was made, Ms Ngnoguem had decided instead she preferred to live permanently in London at a suitable distance from her ex-partner but she did not withdraw her application to Milton Keynes before the date of the s.184 decision.

She wished to establish a local connection with a London borough instead of Milton Keynes.

Stuart-Smith LJ said: “In my judgment, HHJ Melissa Clarke was right and [the] appeal to this court should be dismissed.”

The Court of Appeal judge concluded (at paragraph 40) that:

i) Where an applicant is dissatisfied with a s. 184 Decision, their primary remedy is to request a Review Decision;

ii) 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;

iii) 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;

iv) 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;

v) 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);

vi) 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.

Mark Smulian

Fraser Public Sector 600

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