Judges refuse council permission to appeal “academic” homelessness ruling

The Court of Appeal has ruled that it would be disproportionate to allow the London Borough of Sutton to pursue an appeal that had become academic in a housing case.

The respondent had brought an action under section 204 of the Housing Act 1996 to appeal against Sutton’s decision that its housing duty had been discharged because she had voluntarily ceased to occupy the accommodation that Sutton had procured for her.

HHJ Genn had allowed her appeal having found at Central London County Court that neither the original decision maker, nor the reviewing officer had considered whether it was reasonable for her to continue to occupy the accommodation.

If the reviewing officer was minded to uphold the original decision despite that deficiency, a ‘minded to’ find letter should have been given to the respondent. Sutton was ordered Sutton to pay her costs.

The council sought permission to appeal but the respondent objected that the appeal was academic because she had found accommodation and no longer needed Sutton's assistance.

She did not agree to the appeal proceeding and said Sutton had not offered to indemnify her against costs. Also, public funding would not be available for the appeal and so arguments in support of the judgment would not be advanced.

Sutton argued that the appeal was not academic because of the costs order against it and that HHJ Genn’s decision imposed onerous duties on local housing authorities.

When deciding to allow the appeal, Elizabeth Laing LJ considered there were three valid grounds concerning statutory construction. The appeal judge also "rather tentatively" concluded that the second appeals' test was satisfied. Elizabeth Laing LJ noted, however, that the appeal appeared to be academic and adjourned the application to court in order that the court could consider whether to grant permission to appeal despite the fact that, as between these parties, the appeal was academic.

Lord Justice Lewison said in his judgment: “I do not consider that on this application we can, or should, go behind Elizabeth Laing LJ's order. I accept therefore that the first of the Popdog criteria is satisfied.”

He said though two other criteria in Popdog were not satisfied and noted Lord Neuberger had said in that case: “The mere fact that a projected appeal may raise a point, or more than one point, of significance does not mean that it should be allowed to proceed where there are no longer any real issues in the proceedings as between the parties."

Lewison LJ said: “It seems, to me, to be highly unlikely that [the respondent] would obtain legal aid for an appeal which, from her perspective, is academic.”

It was also unlikely that even if successful, Sutton would obtain an enforceable order for costs against anyone.

He added: ”In practical terms, therefore, Sutton would have to incur its own, probably irrecoverable, costs of an appeal simply in order to discharge the costs order below. It would, in those circumstances, be disproportionate to grant permission to appeal on the question of costs alone.

Lord Justice Zacaroli agreed.

Mark Smulian