Late homeless appeals and legal aid cuts – key guidance from the Court of Appeal
Published: by Jo Underwood
Today, the Court of Appeal handed down an important judgment on homelessness, in which Shelter intervened. It hammers a welcome stake in the ground regarding access to justice for people struggling with homelessness, highlighting the importance of legal aid in ensuring that people can appeal decisions under the Homelessness Reduction Act about whether they will be housed.
In Al Ahmed v London Borough of Tower Hamlets [2020] EWCA Civ 51, Mr Al Ahmed suffered from a number of medical conditions and had been sleeping rough after his eviction. He made a homeless application to the council but was found not to have priority need for rehousing. He requested a review of their decision. The council’s review upheld the finding of no priority need.[1]
Mr Al Ahmed then appealed to the county court requesting permission to bring his appeal out of time, as he had filed it at court almost a month later than the 21 day deadline. He explained this was because he’d experienced difficulty finding legal advice and assistance to file the appeal. He’d sought help from Crisis, who had tried to find him a solicitor but had serious difficulties finding a firm with capacity. When they eventually found one, it was later than the 21 days, but the solicitors acted promptly and filed the appeal as soon as they could.
At the first county court hearing, the judge found there were good reasons for granting Mr Al Ahmed permission to appeal out of time:
‘I am satisfied that on the particular facts of this case….it was reasonable for him to wait for Crisis to find him a legal representative because without a legal representative this appeal was never going to go anywhere.’
However, the council appealed successfully to the High Court and Mr Al Ahmed was refused permission to appeal out of time. The judge considered that the requirements for bringing a homelessness appeal were ‘not especially sophisticated or taxing’ and he was ‘unable to accept the contention that it is necessary for a lawyer to be instructed before adequate grounds of appeal, sufficient to bring the appeal before the court, can be drafted.’
Mr Al Ahmed then appealed to the Court of Appeal and Shelter was granted permission to intervene in his case. Our intervention focused on our concerns that legal advice and representation must be acknowledged as vital for homeless applicants who are likely to struggle with navigating complex housing law, procedure and the court system by themselves, and that online resources can only assist to a limited extent.
Our evidence outlined ‘the practical difficulties involved in a homeless applicant issuing a notice of appeal in person; the wider difficulties and circumstances that homeless persons often have to contend with; and the difficulties that homeless applicants face in finding solicitors who are able to advise and represent them in homeless appeals, and the lack of capacity in the housing advice sector’. The full witness statement from Polly Neate can be found here.
It’s very welcome that the Court of Appeal reinstated permission for Mr Al Ahmed to appeal out of time. The judgment is careful not to give carte blanche to late appeals, but it does recognise the myriad of difficulties that homeless applicants face if required to represent themselves in homeless appeals and accepts that being unable to find a solicitor can be a good reason for delay.
Importantly, the judgment also reflects wider concerns raised by Shelter about legal aid cuts and the dwindling provision of housing advice. Referring to the legal aid cuts made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the judgment notes: ‘Homeless applicants should still qualify for a full legal aid certificate to cover the work necessary for a County Court appeal…But many housing cases were taken out of the scope of legal aid, and the resulting shrinkage in the number of providers means that there are now areas of the country where it is almost impossible to get face to face legal advice in housing law – there are housing advice deserts throughout the country…. Those housing advice providers that are still left are facing increased demand and often do not have the capacity to assist everyone who approaches them for help.’
This is a key judgment for homeless applicants and access to the courts, providing welcome guidance and recognition of the difficulties faced by homeless applicants if required to bring an appeal without legal advice and representation. Importantly, the judgment also recognises the wider difficulties caused by cuts to legal aid and the subsequent shrinking of the housing advice sector.
[1] When faced with a negative review decision such as this, a homeless applicant can appeal further to the county court, on a point of law. Appeals must normally be filed in court within 21 days of the applicant being notified of the review decision. However, the Housing Act 1996 does give the Court discretion to grant permission for appeals to be brought after the 21 days, if there is ‘good reason’ for the delay.