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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ismail & Anor v London Borough of Newham [2018] EWCA Civ 665 (28 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/665.html Cite as: [2018] EWCA Civ 665

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH Judge Mitchell
B02BO417

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 March 2018

Lord Justice Patten:

1. On 23 October 2014 the appellants, Mr and Mrs Ismail, applied to the respondent local authority ("the Council") for housing assistance under Part VII of the Housing Act 1996 ("HA 1996"). Mr Ismail is a Sri Lankan national. Mrs Ismail is a national of Mauritius. They have three children all born in the UK. By the time of the application they were threatened with eviction from their accommodation at [an address in] London. Mr Ismail stated in his application form that he had made an application for asylum to the Home Office which was still pending and therefore had no right to remain in the UK. The Council took the view that as a person subject to immigration control he was not eligible for housing assistance and was owed no housing duty under Part VII regardless of whether he could otherwise establish a priority need: see HA 1996 s. 185.
2. On 3 December 2014 Mr Ismail requested a review of the decision under s.202 HA 1996. The Council contacted the Home Office and was informed that both Mr and Mrs Ismail's application for asylum had in fact been rejected and that their rights of appeal had also been exhausted. The reviewing officer confirmed the original decision that Mr Ismail was not eligible for assistance by virtue of the provisions of s.185. In relation to the children, the officer said that although they were born in the UK they were not British nationals and could not be relied on to qualify the family Ismail for assistance under Part VII. I should add that because they had children, Mr and Mrs Ismail had been offered accommodation under s.95 of the Immigration and Asylum Act 1999 but they had rejected this because the accommodation was unlikely to be in the London Borough of Newham.
3. Mr and Mrs Ismail appealed against the review decision to the County Court under s.204 HA 1996. The judge, HH Judge Mitchell, refused to join the children as parties to the appeal or to transfer the appeal to the High Court so that Mr and Mrs Ismail could seek a declaration that s.185 is incompatible with Article 8 of the European Convention on Human Rights. On the substantive issue of whether Mr and Mrs Ismail were eligible for housing assistance under Part VII, the judge held that they were both subject to immigration control and accordingly were excluded from being eligible by s.185. He then turned to consider the position of the children.
4. The children, the judge held, are not British citizens because they do not satisfy the conditions set out in s.l of the British Nationality Act 1991. This requires the father or mother to be either a British citizen or to have been settled in the UK at the time of their birth. Since neither Mr nor Mrs Ismail is a British citizen and neither have a right to remain in the UK, these conditions are not made out. That left the question whether the children could themselves qualify for assistance under Part VII because they were not "persons from abroad" within the meaning of s.185(1) HA 1996. So far as material, s.185 provides:

"(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.

(2) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.

….

(3) The Secretary of State may make provision by regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance.

(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether a person falling within subsection (5)—

(a) is homeless or threatened with homelessness, or

(b) has a priority need for accommodation."

5. On one view of s.185 the exclusion depends upon the appellant being a person from abroad and someone who (by virtue of being subject to immigration control) is not eligible for assistance. This explains why in s.185(2) there is no reference to the applicant being from abroad. But in Ehiabor v Royal Borough of Kensington and Chelsea [2008] EWCA Civ 1074 Arden LJ said (at [25]):

"[25] In my judgment Mr Luba was correct to accept that the expression "a person from abroad" must mean a person who is ineligible for housing assistance under sub-s (2) to sub-s (4) of s 185 such a person may have physically come to this country from a foreign country. However, he need not necessarily have done so. Persons who, unless excluded under sub-s (2A) or sub-s (3), are subject to immigration control will be treated as if they were from abroad."

6. Judge Mitchell said that he should apply this construction of the Act, although obiter, and accordingly dismissed the appeal. The appellants and the children did not fall within any of the categories for re-inclusion under the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (as amended) and were therefore ineligible for housing assistance.
7. Mr and Mrs Ismail sought permission for a second appeal to this Court on a number of grounds but were granted permission by Floyd LJ on 17 October 2016 only on the issue of whether the children were persons from abroad within the meaning of s.185 HA 1996. Skeleton arguments were filed by Mr and Mrs Ismail (acting in person) and by the Council.
8. On 26 January 2017 the Court was informed by the Council that Mr Ismail had recently been granted limited leave to remain and was therefore now eligible for assistance under Part VII. He had made a new application for housing assistance and would be accommodated by the Council with his wife and children. In these circumstances, the Council notified the Court that it considered that the appeal had become academic. The appellants, however, maintained that it raised an issue of some general importance and should be heard.
9. The parties' respective observations were passed to Henderson LJ, the Supervising Lord Justice, who took the view that the appeal has become academic and should not be re-listed for hearing. A provisional hearing date fixed for 9 February 2017 had been vacated. Henderson LJ said:

"In my view, the appeal is now academic and it should not be relisted for hearing.

Since Mr Ismail has now been granted limited leave to remain, he is eligible for assistance under Part VII of the Housing Act 1996 for himself and his dependent family members. He and his wife are therefore in as good, if not better, a position than they would be if their appeal were to succeed. In my view there is no wider public interest which would justify the exceptional course of permitting their appeal to proceed, not least because the respondent has adduced powerful arguments in support of the view that "persons from abroad" in section 185(1) includes children born in England who are subject to immigration control, and the contrary was not argued by very experienced leading counsel in the Ahiabor case.

As to the three "Popdog" criteria:

(a) I am prepared to accept that the appeal would raise a point of some general importance, although I would rate its chances of success as low; but

(b) The second condition is clearly not satisfied (Newham does not agree to the appeal proceeding, and is not indemnified on costs); and

(c) Since the Appellants are litigants in person, the court cannot be satisfied that their side of the argument will be fully and properly ventilated with the same confidence it would feel if they were legally represented, although I have no doubt that they would do their best to assist the court.

In their letter of 30 January 2017, Mr and Mrs Ismail complain that the accommodation they have been offered is unsuitable, but it is only interim temporary accommodation, and in any event this issue is irrelevant to the legal issues raised by the appeal.

I am therefore satisfied that the balance comes down clearly in favour of dismissing the appeal on the ground that it has become academic."

10. The Popdog criteria are a reference to what was said by Lord Neuberger of Abbotsbury MR in his judgment in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580 at [15]:

"15. Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

11. Mr and Mrs Ismail indicated in correspondence that they wished the Council to engage with them in ADR before they were prepared to consider agreeing to the dismissal of their appeal. But this request was refused and the matter was referred back to Henderson LJ in June 2017 for directions. On 9 August 2017 Henderson LJ directed that the matter be listed for a hearing before a single Lord/Lady Justice to reconsider whether the appeal was academic and to give further directions accordingly. Mr and Mrs Ismail wrote to the Court on 7 September 2017 stating that they were not agreeable to the hearing being listed before a single judge and that there was no proper procedural basis for this. In the letter they also said that they had sufficient knowledge of the law to be able to represent themselves as litigants in person.
12. The Court wrote to Mr and Mrs Ismail on 19 September 2017 to explain that under s.54(2) of the Senior Courts Act 1981 the Court of Appeal can be composed of a single judge and that for an application for permission to appeal or for other procedural orders it was usual for the application to be dealt with in this way. A hearing was listed for 13 February 2018 and both the appellants and the respondent Council filed skeleton arguments. But shortly before the hearing Mrs Ismail notified the Court that her husband had been taken ill and requested an adjournment. I ordered the hearing to be vacated and it was re-listed for today.
13. On 19 March 2018 the Court received a further letter from Mrs Ismail in which she re-iterated a complaint that the CPR have not been followed and asked for the question of whether the appeal has become academic to be referred to the Supreme Court. She has also now requested a further adjournment of the hearing to enable professional representation to be obtained. I have refused that application. This matter has already been adjourned once and it is now more than two years since Judge Mitchell made the decision under appeal. Mr and Mrs Ismail have previously maintained that they are capable of conducting the hearing themselves and have had ample time to obtain professional assistance if that is required. They are not eligible for legal aid and Mr Ismail says that they do not have the means to pay for counsel to attend. It is therefore very unclear whether they would in fact be able to secure professional representation even if an adjournment were to be granted. The respondent has instructed counsel and I am satisfied that the Court has been provided with all of the relevant authorities. I have also to take into account the effect on other court users and on the Council itself of any further postponements of what is, at the end of the day, a relatively short issue. In all the circumstances, a further adjournment of the matter would not be justified.
14. I can turn therefore to the issue of whether the appeal should be dismissed because it is now academic. Mr and Mrs Ismail's argument can be summarised quite shortly. They say that the issue of whether their children (and others in a similar position) are persons from abroad is a question of some public importance which merits being determined at a full appeal. That much is evident from the fact that permission has been given for a second appeal by Floyd LJ. The appeal also, they say, has a real prospect of success.
15. Mr Ismail also submitted to me that he and his family would be in a better position than they currently are were the appeal to be heard and allowed. It is not clear to me how that can be the case. He accepts that the appeal, however, decided, will have no impact on the immigration status of the family including the children. Insofar as it operates to remove s.185 as a barrier to the provision of housing assistance, it will at best establish a housing duty which is owed to the family but that now exists as a result of Mr Ismail being given leave to remain. Although Mr and Mrs Ismail have complained about the quality of the accommodation they have been provided with, that is not an issue which arises in or could be resolved by the present appeal. Any issues relating to how the Council now discharges its duty under Part VII can and must be dealt with under the statutory machinery for review and appeal contained in ss. 202 and 204 HA 1996. They do not depend on whether the children are to be treated as persons "from abroad" under s.185.
16. I accept that the point of law raised by the appeal is of general importance and I am prepared also to accept that the appeal has a reasonable prospect of success. I do not, however, propose to go further into the merits because neither of those factors is sufficient in my view to justify the continuation of the appeal in circumstances where the result can make no difference to the position of the appellants. This Court has made it clear on a number of occasions that the importance of the issue raised by the appeal is not a bar to it being treated as academic. The conditions set out by Lord Neuberger in Hutcheson v Popdog Ltd were followed in the more recent case of Hamnett v Essex County Council [2017] EWCA Civ 6 where Gross LJ said:

"33... In a case involving a public authority and raising a question of public law, the Court has a discretion to hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: R v Home Secretary, Ex p Salem [1999] 1 AC 450, at p.456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise (at p.457) that discretion was to be exercised with caution:

" ... .and appeals which are academic should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

34. Just how narrow this discretion is, was underlined in this Court, in Hutcheson v Popdog Ltd [2012] 1 WLR 782. Lord Neuberger of Abbotsbury MR said (at [12]) that "the mere fact" that a projected appeal may raise a point or points of significance did not mean that "it should be allowed to proceed where are no longer real issues in the proceedings as between the parties." At [15], Lord Neuberger formulated the following propositions:

"Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent."

17. Ms Lovegrove very properly referred me to the recent decision of Nicklin J in Haringey v Simawi [2018] EWHC 290 (QB) where the judge expressed the view that the absence of consent by the respondent and an indemnity for its costs was not necessarily a bar to an otherwise academic appeal proceeding and that the Court should consider carefully whether the position of the party which does not want the appeal to proceed is justified. I have some doubts whether this is compatible with what the Court of Appeal has said in the cases I have referred to, although I acknowledge that Lord Neuberger himself thought that there might be exceptional cases. But even if the guidelines should be departed from in appropriate cases, this is not in my judgment one of them. The Council, at a time of immense financial pressure on local authorities, is justified in my view in not wishing to incur further time and money in relation to an appeal which will have no effect on its housing duties in respect of the appellants. The point of principle, although important, can be left to be determined as and when it has a real impact on the legal rights of the parties concerned. There is no suggestion that there are other pending appeals where the same point arises and where a decision in this case will affect significant cost savings for other litigants and in respect of the use of court time.
18. Taking all these matters into consideration, I propose to dismiss the appeal.