Clitheroe, R (on the application of) v London Borough Of Lewisham

On a renewed application for permission to appeal, the court may direct that the application be heard on notice with any appeal to follow where the proposed challenge raises an arguable point of principle requiring consideration by a full court. The court identified, but did not decide, the proper threshold for exercising the discretion under section 203(4) of the Housing Act 1996 to extend time for requesting a homelessness review.

Michelle Clitheroe sought permission to appeal against Maurice Kay J’s refusal of permission for judicial review. The underlying challenge concerned the council’s refusal to extend the statutory 21-day period for requesting a review of an intentional homelessness decision. The request had been made approximately six and a half months out of time.

The council had relied on the applicant’s failure to act promptly and had also considered that the proposed review did not have a good prospect of success. The renewed application raised whether that was the correct threshold for exercising the discretion under section 203(4) of the Housing Act 1996, and whether the refusal was Wednesbury unreasonable.

1. Disposition. The renewed application for permission to appeal was adjourned to be heard on notice. The appeal was to follow if permission were granted.
2. The court was not prepared to say that the application had a real prospect of success. Nevertheless, it was satisfied that the proposed challenge raised a matter which should be argued before the full court.
3. The council’s decision stated that the requested review would not have a good prospect of success, while also relying on the substantial delay and the previous consideration of the extension application. The applicant argued that this imposed too high a threshold by requiring an applicant to establish the merits before obtaining a review.
4. The court treated the issue as an unresolved question of principle concerning the proper threshold for exercising the discretion under section 203(4) of the Housing Act 1996. It noted that there was no decided case on the exercise of that discretion.
5. The applicant also alleged Wednesbury unreasonableness because the council had refused an extension for delay said not to have been properly explained. That issue was left for argument before the full court.

• Court of Appeal (Civil Division): On 4 November 2002, the renewed application for permission to appeal was adjourned for an inter partes hearing, with the appeal to follow if permission was granted.
• High Court, Administrative Court: Maurice Kay J refused permission for judicial review on 12 August 2002.
• Permission stage: Buxton LJ refused permission on paper before the renewed application was made.