Poorsalehy v London Borough of Wandsworth

Under section 204(2A)(b) of the Housing Act 1986, permission to appeal out of time requires both a good reason for the original failure and a good reason for delay in seeking permission. Whether good reason exists is a fact-sensitive value judgment based on the evidence, including direct and properly supported inferential evidence.

There is no inflexible rule that a claimant is fixed with a solicitor’s default, or that a claimant may always shelter behind it. Relevant considerations include the length and quality of the delay, the nature of the claim, and the claimant’s knowledge and involvement. Speculative inferences cannot fill an evidential gap.

The appellant sought homelessness assistance under Part 7 of the Housing Act 1986. An adverse review decision was notified on 9 March 2012. His notice of appeal was filed out of time on 2 April 2012, without an application for an extension. A formal extension application was not made until 27 July 2012, and evidence did not explain the intervening delay.

The Wandsworth County Court struck out the appeal as out of time. The issue was whether the judge had wrongly attributed the solicitors’ default to the appellant, or should have inferred that the appellant personally bore no responsibility.

1. The appeal was dismissed. The county court judge had correctly treated section 204(2A)(b) of the Housing Act 1986 as requiring both a good reason for failing to appeal in time and a good reason for delay in applying for permission. The first criterion was satisfied, but the second was not.
2. Whether there is good reason is a question of fact and value judgment. It depends on all the circumstances known to the court from direct and inferential evidence. The conclusion cannot rest on speculation. Clear evidence that solicitors were at fault does not exclude concurrent responsibility on the part of the claimant.
3. The authorities did not establish either an inflexible rule that solicitor defaults must be visited on the client or a general rule allowing a client to shelter behind them. In statutory appeals concerning publicly financed resources, reliance on apparently competent legal advisers will discharge the burden in many cases, but the result remains fact-sensitive. Relevant considerations include the length and quality of the delay, the nature of the claim, and the claimant’s knowledge or lack of knowledge.
4. The approach in R (Tofik) v IAT [2003] EWCA Civ 113 and the observations in Corbin v Penfold supported that analysis. Hi-Tech Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 arose in the materially different context of deliberate breach of an unless order and did not govern statutory housing appeals.
5. The appellant’s solicitors had been warned of the time issue but took no effective step for nearly four months. The evidence did not show what the appellant knew or did during that period. The judge was entitled to regard the evidential gap as material and was not bound to infer that the appellant could not personally have contributed to the delay. The relevant appellate question was whether the decision was wrong, not whether the appellate court would have reached the same conclusion.

• High Court (Queen’s Bench Division): On appeal, Mr Justice Jay dismissed the appeal against the Wandsworth County Court’s decision striking out the notice of appeal as out of time.