A compelling appeal

An applicant for assistance under part 7 of the Housing Act 1996 (duties to the homeless) has the right to a review of most decisions that a local authority may make on his application (see section 202).


If dissatisfied with the review decision, he has the right to appeal on a point of law to the county court (section 204). It is well-established that this includes not only matters of legal interpretation but also the full range of issues akin to those which would otherwise be the subject of judicial review: for example, challenges on the basis of procedural error, irrationality and adequacy of reasons (see Begum v Tower Hamlets LBC [2000] 1 WLR 306, CA).


Despite the fact that the county court appeal is the first time that a court considers the matter, for the purposes of the Civil Procedure Rules 1998 it is a second appeal (Azimi v Newham LBC (2001) 33 HLR. 51, CA). Accordingly, any appeal is to the Court of Appeal and permission to appeal may only be granted where the appeal court considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for it to hear it (CPR rule 52.13).


The difficulty in overcoming this threshold was emphasised in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60. The appeal court held that the first part of the test is only satisfied where an important point of principle or practice has not yet been determined; a misapplication of an important point of principle or practice is not sufficient.


As to 'compelling reason', the court held that, usually, the prospects of success must be very high, but this is not necessarily determinative. Despite very high prospects of success, permission may not be granted, for example, where the appellant's conduct contributed to his failure below; conversely, even in the absence of very high prospects of success, permission may be granted, for example, where the hearing below was tainted by procedural irregularity.


In Cramp v Hastings BC and Phillips v Camden LBC [2005] EWCA Civ 1005, the appeal court considered the effect of CPR rule 52.13 in the context of the 1996 Act. In each case, the county court had quashed the authority's review decision on the basis that the authority had failed to make adequate inquiries into the circumstances of an applicant who contended that he had a priority need as a result of vulnerability. The authorities submitted detailed evidence of the costs occasioned by the appeals.


The Court of Appeal adopted an admirably practical approach. Lord Justice Brooke, giving the lead judgment, observed: 'In view of the amount of public money that is in issue in cases like this ... it would in my judgment be quite wrong for this court to feel that the judgment in Uphill represented a fetter on its power to put things right if it has occasion to believe that things are going wrong in an important way in the practical operation of the statutory scheme.'


In Cramp, permission to appeal had already been granted; but the court granted permission in Phillips on the basis that an important point of practice was involved, namely, the nature of the authority's duty to make inquiries under the 1996 Act.


Both appeals were allowed on the ground that neither judge at first instance could have held that no reasonable council could have refrained from making further inquiries.


By Andrew Dymond, Arden Chambers, London