CA-2025-000320 - [2025] EWCA Civ 1336

Was the point open to Mr Young in these proceedings?

Supposing that I am wrong and that the Council had a duty to tell him that he was entitled to another review, was it open to him to rely on that as a defence before District Judge Daley?

It was common ground before us that there can be circumstances in which a “public law” defence can be advanced in possession proceedings. In this connection, we were referred to Wandsworth LBC v Winder (No. 1) [1985] AC 461, Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367 and Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104. In the last of these cases, Lord Neuberger, giving the judgment of the Court, said in paragraph 81 that, “where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the county court”.

In the context, however, of Part VII of the 1996 Act, Parliament has established procedures for review and appeal. In general, accordingly, issues as to what duties are owed under Part VII are to be addressed through those procedures.

The cases to which we were taken in this connection included Tower Hamlets LBC v Rahanara Begum [2005] EWCA Civ 116, [2006] HLR 9 (“Rahanara Begum”), Godson v Enfield LBC [2019] EWCA Civ 486, [2020] HLR 1 (“Godson”) and Bano.

In Rahanara Begum, the defendant resisted possession proceedings on the ground that the claimant owed her the main housing duty. She won in the County Court, but the Court of Appeal decided in favour of the claimant. The Court considered that it had been open to the defendant to request a review under section 202 of the 1996 Act or to appeal under section 204, that the District Judge ought to have concluded that it was now too late for her to do so and that, as a result, he should have dealt with the claim on the basis that the claimant’s decision that it owed no further duty to house the defendant was correct.

Neuberger LJ, with whom Ward and Tuckey LJJ agreed, said this in paragraphs 32-33 of his judgment:

Part 7 of the 1996 Act requires a housing authority to be the initial decision-maker on questions concerning a person’s homeless status and housing rights, and it includes a tolerably clear appeals procedure, with relatively short and fairly strict time limits, for the benefit of a person dissatisfied with any decision of the authority. Where, as here, possession proceedings are brought by the authority, and the defence involves impugning a decision of the authority under Pt 7 of the 1996 Act, which could have been, but was not, appealed, and the time for appeal has long since expired, it appears to me to be wrong in principle that the court hearing the possession action should be able freely to reconsider, and if necessary to reverse, the authority’s decision with regard to its duty.

Where a statute provides that the entitlement to a right is to be determined by a particular entity, and further provides for a specific appeals procedure, including time limits, in relation to any such determination, I consider that it would be wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later. To hold otherwise would effectively enable a person such as the respondent to have the benefit of the statutory provisions, in this case s.193, without taking the concomitant burden, namely the procedure and time limits in ss.202–204.”

In Godson, Lewison LJ (with whom I agreed) quoted paragraphs 32-33 of Neuberger LJ’s judgment in Rahanara Begum and said in paragraph 24 that they were “plainly right”. That being so, it was not open to the appellant to dispute a conclusion reached in a review decision which he had not appealed.

In Bano, I referred in paragraphs 32-35 of my judgment to the principle that judicial review should be refused where an alternative remedy exists. In paragraph 70, I said:

“In my view, it is not appropriate to allow Mrs Bano to claim judicial review. I do not think that there are ‘pressing’ or ‘exceptional’ circumstances which would warrant permitting Mrs Bano to pursue her claim for judicial review notwithstanding the fact that she had available to her, but failed to invoke, the procedure (viz review and appeal) which was meant to apply in relation to decisions as to whether a duty under section 193 of the 1996 Act was owed. In Nipa Begum [2000] 1 WLR 306, Auld LJ said that, ‘save in the most exceptional circumstances, the residual jurisdiction of the High Court should not be regarded as a backstop for the appellate jurisdiction of the county court under section 204 where the applicant for housing assistance has failed to appeal a review decision within the 21 days’ time limit’. I do not consider such exceptional circumstances to exist in the present case ….”

There may, of course, be circumstances in which it is appropriate for a District Judge hearing a possession claim to have regard to the possibility of a local housing authority’s decision being wrong. If, for example, there were a pending appeal against such a decision, or the defendant had avowed an intention to appeal and was in time to do so, the District Judge could be expected to adjourn. That is by no means, however, to say that a District Judge should decide an issue in respect of which the review and appeal procedures are or were available. To the contrary, where the defendant was informed of an authority’s decision and failed to request a review of it, or failed to appeal a review decision of which he had been notified, it would (as Neuberger LJ said in Rahanara Begum) be “wrong in principle, at least in the absence of exceptional circumstances, to permit the determination to be challenged by a different procedure much later”.

In the present case, Mr Young was told by the Council in the letter of 20 July 2020 containing the review decision that the main housing duty had been discharged. The letter of 12 November 2020 enclosing the notice to quit also referred to Mr Young’s temporary accommodation coming to an end as a result of his signing the tenancy agreement for 25 Diprose Lodge.

In the context of the issue I am now addressing, it is to be assumed that, contrary to the conclusions I have reached earlier in this judgment, the Council ought to have informed Mr Young that he had a right to request a review of its conclusion that the main housing duty had ceased. Mr Bates argued that the Council’s failure so to inform him means that there were “exceptional circumstances” making it appropriate to allow him to dispute the point in the present proceedings.

I do not agree. There is no suggestion that Mr Young was not made aware of the Council’s understanding that the main housing duty had come to an end. Section 202(3) required him to request any review of such a decision within 21 days of notification unless the Council allowed a longer period, but he neither requested a review within 21 days nor has ever asked the Council to agree to an extension of time. As Mr Bates stressed, Mr Young was not told of any right to review at the time, but the Council did not issue its claim until more than five months after it had served the notice to quit and, by the date the matter came before District Judge Daley, more than three years had elapsed since Mr Young had been told of the review decision. Even taking account of the fact that Mr Young was not alerted to the possibility of a review by the Council, he had had ample opportunity to request one and the circumstances were not such as could, exceptionally, make it permissible for him to pursue any challenge to the Council’s view in the possession proceedings rather than via the review and appeal procedures for which Parliament has provided.