Ms Castro’s solicitors requested a review of the council’s decision, made on 5 April 2018, that the property provided to her was suitable accommodation. The 56-day time limit for completion of that review expired, without any agreement to extend it. Later, on 22 June 2018, the council purported to notify its review decision.
On 10 July 2018, an appeal was issued pursuant to both HA 1996 s204(1)(a) and (b) seeking to appeal against both the 5 April 2018 suitability assessment and the 22 June 2018 ‘review decision’.
The council took the preliminary point that the appeal could not be pursued against both decisions. Ms Castro argued that she could pursue the two appeals and elect, post-judgment, in which to seek a remedy.
HHJ Monty QC stated that:
I have no doubt that the use of the word ‘or’ between [HA 1996 s204(1)] subsections (a) and (b) as well as the use of the phrase ‘or, as the case may be’ means as a matter of the true construction of this section that where an appellant receives both the original decision and an out-of-time review prior to issuing the appeal, such appeal can be against the review or the original decision; it cannot be against both (para 27).
Following and applying William v Wandsworth LBC  EWCA Civ 535 (per Chadwick LJ at para 55) and Jobe v Lambeth LBC February 2018 Legal Action 45, he held that an applicant is free to elect to validate an out-of-time review decision and to appeal from it. If such election is made, an appeal cannot also be brought against the original decision. He stated that:
By bringing this appeal against the out-of-time review decision the appellant has elected to treat that review decision as valid, even though it was out of time, and that having done so it is no longer open to the appellant to appeal the original decision. The position might have been different had the appeal been brought before the out of time review decision was notified to the appellant, as was the case in Muloko v Newham LBC [June 2018 Legal Action 35] (para 30).
This summary is from Legal Action Magazine
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