C v Lewisham

A housing authority has a wide discretion under section 202(3) of the Housing Act 1996 to extend the period for requesting a homelessness review. It may consider the delay, the explanation for it and the review’s prospects of success. The weight given to each matter is for the authority, subject to ordinary public law principles.

The statutory scheme permits one review and, where the time limit has expired, one application to extend time. An authority may entertain a further request as an extra-statutory indulgence, but is not obliged to do so. A refusal will be susceptible to judicial review only in exceptional circumstances.

The claimant was evicted for rent arrears. Lewisham decided under section 191 of the Housing Act 1996 that she had become intentionally homeless. She did not request a review within the 21-day period prescribed by section 202(3).

The authority rejected her subsequent requests for an extension of time, including a renewed request supported by psychiatric evidence. Maurice Kay J refused permission to seek judicial review of the authority’s decision of 4 March 2002. The claimant appealed after permission was granted by the Court of Appeal.

The principal issues were whether an authority considering a late review request could assess the proposed review’s prospects of success, whether the refusal was irrational, and whether a second psychiatric report should have been admitted. The court also considered whether the renewed request fell outside the statutory review scheme.

1. The appeal was dismissed unanimously. In a joint judgment delivered by Ward LJ, the court held that the discretion conferred by section 202(3) of the Housing Act 1996 is wide because Parliament prescribed no checklist of relevant factors. The decision must nevertheless be made in good faith, for proper purposes, without unlawfully fettering the discretion, and consistently with the statute’s purpose. It remains subject to ordinary Wednesbury review.

2. An authority may take account of the length of and reasons for delay and the prospects of success on the proposed review. Assessing prospects does not usurp the reviewing officer’s function. A provisional assessment of whether the case is hopeless, arguable or has a strong prospect of success is a permissible part of deciding whether to grant an extension. The materiality of fresh evidence may reasonably be assessed as part of that inquiry.

3. No fixed balancing exercise is required. The authority determines the weight given to each relevant consideration, subject to irrationality review. It may refuse after a short and well-explained delay because the underlying case is hopeless. Conversely, it may extend time despite a long and unexplained delay where the merits are powerful. It may also refuse solely by reference to the delay and its explanation without forming a view on the merits.

4. The decision of 4 March 2002 was sufficiently reasoned and rational. The authority was entitled to find the psychiatric evidence insufficiently compelling and to give substantial weight to the absence of a satisfactory explanation for the delay. Maurice Kay J was also entitled to exclude the later psychiatric report.

5. The statutory scheme envisages one review and, after expiry of the 21-day period, one application to extend time. The renewed request therefore fell outside section 202(3). An authority may voluntarily entertain a further request, but is not bound to do so. That extra-statutory discretion, concerning housing management and further indulgence, is close to absolute. A refusal will attract judicial-review intervention only exceptionally. The authority was entitled to refuse any further reconsideration.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was dismissed unanimously: [2003] EWCA Civ 927.

2. Administrative Court: Maurice Kay J refused permission to apply for judicial review of Lewisham’s decision of 4 March 2002. No neutral citation is stated.

3. London Borough of Lewisham: The authority refused to extend time for a review of its decision that the claimant was intentionally homeless and declined any further extra-statutory reconsideration.