Ngnoguem v Milton Keynes Council

Under Part 7 of the Housing Act 1996, a review requested under section 202 remains mandatory even if the authority notifies its decision after the regulatory deadline. A late review decision is effective and supersedes the original section 184 decision; it does not require the applicant’s validation.

The applicant may appeal the original decision under section 204(1)(b) only where no review decision has been notified before the appeal is brought. A subsequently notified late decision normally renders that appeal academic. If the late decision is notified first, the remedy is an appeal against the review decision. An original-decision appeal may exceptionally continue where an enduring benefit is shown.

The appellant had fled domestic violence and applied to Milton Keynes Council for accommodation. The Council made a section 184 decision accepting that it owed her a housing duty. She requested a review, which the Council accepted despite the request being late. The review decision should have been notified by 5 November 2018 but was issued and notified on 9 November 2018, upholding the original decision.

The appellant first appealed against the original decision and later appealed against the review decision. The County Court at Oxford dismissed the first appeal without considering its merits, holding that the late review decision had superseded the original, and dismissed the appeal against the review decision on its merits. The appeal concerned whether the late review decision was effective and whether section 204(1)(b) permitted an appeal against the original decision after late notification.

The appeal was dismissed unanimously. Stuart-Smith LJ gave the judgment, with Arnold LJ and Macur LJ agreeing.

1. Statutory scheme. A duly made request under section 202 of the Housing Act 1996 imposes a mandatory obligation on the authority to conduct and notify the review. Regulation 9(1)(b)(i) of the Homelessness (Review Procedure etc) Regulations 2018 prescribes the ordinary eight-week period, subject to written agreement extending time.
2. Effect of lateness. The legislation contains no provision making a late review decision void or merely purported. Section 203(5), which specifies when notice is treated as given, does not create an equivalent rule invalidating a decision notified late. The authority’s obligation to provide the review decision continues, and no applicant validation is required.
3. One operative decision. Once issued and notified, a review decision becomes the authority’s sole effective and operative decision. It supersedes the original section 184 decision, whether notified within time or late.
4. Appeal route. Section 204 creates a binary statutory scheme. If no review decision has been notified within time, the applicant may appeal the original decision under section 204(1)(b), within the period specified by section 204(2). If a review decision has already been notified, the proper challenge is under section 204(1)(a) against that review decision.
5. If an original-decision appeal was commenced before a late review decision was notified, the later decision will normally render the proceedings academic. They should ordinarily be compromised, stayed or dismissed, unless exceptional circumstances give the applicant an enduring benefit in maintaining the original challenge. No such circumstances existed here.
6. The Court agreed with the approach in Stanley v Welwyn Hatfield Borough Council [2020] EWCA Civ 1458, while recognising that its discussion of the second issue was obiter and qualifying its treatment of a continuing original appeal. The approach was consistent with Bellamy v Hounslow LBC [2006] EWCA Civ 535. Tactical manipulation by either party was deprecated.

1. Court of Appeal (Civil Division): dismissed the appellant’s appeal against the dismissal of her challenge to the original section 184 decision. [2021] EWCA Civ 396.
2. County Court at Oxford: HHJ Melissa Clarke treated the late review decision as superseding the original decision, dismissed the appeal against the original decision without considering its merits, and dismissed the appeal against the review decision on its merits.