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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ngnoguem v Milton Keynes Council  EWCA Civ 396 (19 March 2021)
Cite as:  EWCA Civ 396,  WLR 5147,  WLR(D) 189,  1 WLR 5147
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ON APPEAL FROM THE COUNTY COURT AT OXFORD
HER HONOUR JUDGE MELISSA CLARKE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ARNOLD
LORD JUSTICE STUART-SMITH
| AUDREY NGNOGUEM
|- and -
|MILTON KEYNES COUNCIL
Mr Iain Colville (instructed by Milton Keynes Council Legal Department) for the Respondent
Hearing date: 11 March 2021
Crown Copyright ©
Covid-19 Protocol: This judgment will be handed down remotely by circulation to the parties or their representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down will be deemed to be 10.30 am on Friday 19 March 2021.
Lord Justice Stuart-Smith :
The factual background
Stanley v Welwyn Hatfield Borough Council
The legal framework
"(3) The authority 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, or
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 the 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."
"(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.
(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."
i) If an applicant who has requested a review under s. 202 is dissatisfied with the Review Decision, they may appeal to the County Court on any point of law arising from the Review Decision within 21 days of being notified of it: s. 204(1)(a) and s. 204(2); and
ii) If an applicant who has requested a review under section 202 is not notified of the decision on the review within the time prescribed under s. 203, they may appeal to the County Court on a point of law arising from the original s. 184 Decision within 21 days of the date on which they should have been notified of the requested Review Decision: s. 204(1)(b) and s. 204(2);.
The judgment of HHJ Melissa Clarke
"28. Of course, I accept that the effect of section 204(1)(b) is that if a section 202 review has not been completed within time, the applicant may appeal the original section 184 decision to the county court. Once that has been filed, it is an appeal proceeding in the county court like any other, and the court will determine it unless the appellant withdraws it or settles it by reaching a compromise with the local authority. This is so even though it may be that an appeal may become academic, because a review decision is made out of time after the appeal of the s184 decision has been made. Whether or not the appeal becomes academic will depend on whether there is any additional benefit to the appellant in pursuing the appeal (per Deugi).
29 If an appellant chooses to withdraw or compromise a section 184 appeal because a later out of time review decision is made, then she will also have the right to appeal that out of time review decision, pursuant to section 204, within the statutory time limits. However I do not consider that 'validates' the decision. In my judgment that out of time review decision is a decision whether or not the s184 appeal continues or is withdrawn.
30. However, all of this envisages that the Section 184 Appeal has been filed before the out of time review decision has been made, .
31. Chadwick LJ considered these circumstances in Bellamy v Hounslow. The facts are that the local authority issued a s184 decision on 4 August 2004 and a s202 review was completed in time on 14 September 2004. The appellant appealed the review decision. Whilst the appeal was proceeding, but before it was heard, the respondent withdrew the review decision and carried out a further review, which was completed out of time on 15 November 2004. The appellant appealed both the s184 decision and the out of time review decision. The judge at first instance treated the appeal as one only from the out of time review decision. Chadwick LJ stated at para 55:
"For my part, I doubt whether s. 204 of the 1996 Act confers a right of appeal from the original decision in circumstances where there has been a review decision under s.202 of that Act. The reference in s. 204(1) to an appeal from the original decision - in the context of the phrase "an appeal... arising from the decision [on the review] or, as the case may be, the original decision" - is, as it seems to me, included in order to make it clear that there can be an appeal from the original decision in the case (for which para.(b) of that subsection provides) where the decision on the appeal has not been notified within the period prescribed under s.203 of the Act. Be that as it may, when the appeal came before H.H. Judge Marcus Edwards, on September 6, 2005, he treated it (correctly, as I think) as an appeal from the review decision of November 15, 2004".
32. I have already set out that I do not see any statutory basis for the concept of an Appellant validating an out of time review decision before it becomes a decision, and there is nothing in the judgment of Chadwick LJ that suggests any such concept was before him.
33. It seems to me, as Mr Colville submits, that Chadwick LJ is endorsing the first instance judge's decision that there can only be one decision, namely the review decision, even though it was issued out of time.
34. For those reasons I agree with Mr Colville that on the facts of this case, the out of time Review Decision, properly notified to and received by the Appellant, overtook the Initial Decision and became the decision in relation to which the Appellant has a right of appeal. Accordingly, I will not go on to consider whether the s184 Appeal was rendered academic by the Review Decision, since it should never have been brought in the first place, having been superseded by the Review Decision albeit that it was notified out of time. I dismiss the s184 Appeal, and will go on to consider the s202 Appeal."
The decision in Stanley
"36. The Act requires that, once a request for review has been made, the authority shall review its decision: s. 202(4) and once made it must be notified to the applicant: s. 203(3). Section 203(4) envisages that if the earlier decision is confirmed against the applicant's interest, the reasons for it must be given. Nothing is said in the Act to suggest that the obligation to review lapses upon expiry of the time, under the regulations, within which it is required to be provided. If it is late, the applicant has the remedy of appealing the original decision, instead of a cumbersome alternative of applying to the High Court on judicial review for an order requiring the decision to be made and notified.
37. It would be surprising if Parliament had intended that, in a case such as the present, if a review decision is made, the parties and the court should ignore it, and then go through an argument as to the adequacy of the original decision and potentially start the whole procedure all over again. This seems a strange result in a case in which the review decision is in the applicant's hands even before he/she begins an appeal against the original decision. In all the time since the passing of the Act, it does not seem to have been said, in any fully reported decision, that a late review decision is no decision at all - which is also surprising, if that were so."
"49. As I have said, the Act envisages that a review once requested must be carried out and the decision must be notified to the applicant. There is nothing to suggest that a review carried out pursuant to this obligation is of no effect. Nor is there anything in Bellamy's case (supra) to suggest that the review decision under appeal was a nullity, . Therefore, I do not see the bringing of the appeal against the s.202 decision in this case as "validating" an otherwise invalid decision.
50.. In the passage quoted above from the judgment of Chadwick LJ in Bellamy , the learned Lord Justice expressed the view that the County Court judge had been correct to treat the appeal before him as being against the later review decision of 15 November 2004; it was a route to dealing with the case on its merits and on an up-to-date basis. This and the wording of s.204, , indicate that once the authority fails to notify a review decision in time, but produces a late review decision, the applicant has a choice of an appeal against the original decision or the review decision but not both. If he/she does appeal against both, as Judge Clarke said in Ngnoguem, the first appeal will remain an appeal before the County Court, but the review decision will not be a nullity; unless there is some distinct factor giving rise to a legitimate interest in pursuing a quashing of the first decision (Deugi), the court (as in Bellamy) will treat the composite case as an appeal against the review.
51. I also think that Judge Clarke was correct to say in Ngnoguem that, as at the date of the review decision, that decision replaced the original decision of the authority and there would be no legitimate interest in doing other than addressing such legal challenge as there might be to what was decided on the review.
52. I do not see that seeking the quashing of the original decision simply in the speculative hope of a more favourable decision from a different officer would be legitimate in the relevant sense. Nor would the mere hope of fresh evidence be of use, provided the reviewing officer had had all the material evidence. A desire to preserve the interim housing duty under s.188 would seem to be simply an attempt to play the system which is not what the public housing system is for. "
The submissions on the present appeal
i) If successful the Appellant would have achieved a further s. 184 Decision and a possible further review, and would be given a further opportunity to draw attention of the decision maker/reviewer to the prolonged correspondence pre-dating the review indicating that it was never the Appellant's choice to reside in Milton Keynes;
ii) Pending those reviews the Appellant would continue to enjoy secure accommodation provided by the Respondent under section 188(1) of the Act;
iii) The s. 184 Decision was less robust and open to challenge than the review decision;
iv) With reference to the facts of the Appellant's particular case she had good prospects of demonstrating compellingly on review of the s. 184 Decision that she had no local connection to the area - therefore obtaining the relief that she has been seeking from the outset of these proceedings.
i) If the applicant issues an appeal in the County Court against the s. 184 Decision before a Review Decision has been received, that is a proper exercise of the right of appeal provided by s. 204(1)(b). However, if a (late) Review Decision is subsequently provided, it becomes the operative decision and the appeal against the s. 184 Decision becomes academic and should be compromised, stayed or dismissed; but
ii) If the applicant receives the (late) Review Decision before proceedings have been issued in the County Court then, as a matter of statutory interpretation, the right to appeal against the s. 184 Decision is lost and the applicant is confined to their remedy under s. 204(1)(a) i.e. to challenge the Review Decision.
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.
Lord Justice Arnold
Lady Justice Macur
Note 1 The word within is not present in the regulation: but the sense is clear. [Back]
Note 1 The word within is not present in the regulation: but the sense is clear. [Back]