Konodyba v Royal Borough of Kensington and Chelsea

Dr Konodyba, who is a Polish national, appeals from the decision of His Honour Judge McMullen QC sitting in the Central London County Court to affirm the decision of the respondent’s Housing Review Officer, Mr Dominic Stack, of 23^rd November 2010 that Dr Konodyba was not eligible for housing assistance under Part 7 of the Housing Act 1996, because she was subject to immigration control pursuant to section 185(2) of that Act. She challenges that decision on the grounds that she was a migrant worker at the Thistle Hotel in Kensington between January and July 2006 and thereafter self-employed while her son was attending school; she says therefore, that she is not subject to immigration control.

The starting point of Dr Konodyba’s case is Article 12 of EEC Regulation No. 1612/68 which provides:-

“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training of that State, if such children are residing in its territory.”

In Baumbast & R v Secretary of State for the Home Department [2002] 2 CMLR23 (“Baumbast”), the European Court of Justice (“ECJ”) held that in order to promote mobility within the Union, Article 12 should be interpreted as meaning that children of EU nationals who install themselves in another Member State during the exercise in that State by a parent of the rights of residence of migrant workers are entitled to reside there in order to attend general education courses, even if the parent ceases to be a migrant worker. Further, in order to enable the children to exercise this right, the parent who is their primary care-giver must be entitled to remain with them, irrespective of that person’s nationality or status as a migrant worker.

The case for the respondent (“the Council”) is that what I will call Baumbast rights were not initially available to Polish migrant workers during the accession period with the UK due to derogations from Free-Movement rights contained in the Treaty and Act of Accession made between eight of the accession States (“the A8 States”), including the Republic of Poland, and the existing Member States including the UK. For an accession State worker to derive such rights, he or she had to complete at least twelve months’ continuous employment in accordance with “national measures” which, in the UK, took the form of the Worker Regulation Scheme (“WRS”), and it is common ground that Dr Konodyba did not achieve that.

The rights contained in Regulation 1612/68 appear in three parts or “Titles”. The derogations upon which the Council rely are contained in Annex XII to the Act of Accession and they refer only to Title I rights. However, in Zalewska (AP) v Department for Social Development (Northern Ireland) (“Zalewska”) [2008] 1 WLR 2602 the House of Lords held that by necessary implication those derogations extend to Article 7 which is contained in Title II. It is the case for the Council that by a similar process of interpretation, and by looking at all three Titles as constituting a single and coherent scheme, the derogations further extend by implication to Title III rights which include Article 12. Consequently, the Council contends, Baumbast rights were caught by the derogations and were therefore initially unavailable to A8 nationals during the accession period and could only be acquired by them upon completion of at least twelve months’ employment in the UK under the WRS.

This litigation has a history. In 2008 Dr Konodyba applied to the Council for homelessness assistance and, on 22^nd August of that year, a decision was made that she was ineligible for assistance. That decision was upheld on review and Dr Konodyba’s appeal to the Wandsworth County Court on Baumbast grounds was dismissed by His Honour Judge Behar. Permission to appeal to the Court of Appeal was granted by Rix LJ and the hearing was fixed for 29^th June 2009. Dr Konodyba, who with the assistance of public funding had retained solicitors and two counsel, dismissed her lawyers by telephone on or shortly before the morning of the hearing, and after a short adjournment so that she could attend in person she addressed the court on different grounds saying that she no longer wished to rely on her Baumbast grounds and submitting, amongst other things, that she wished to argue that she had retained her worker status and/or that she had a self-employed status; she also asked for an adjournment so that she could pursue these contentions and that her case should be referred to the ECJ. Rix LJ, with whom Wall & Aikens LJJ agreed, said this:-

“… it is clear to me that the present appeal has been abandoned and therefore the order of this court which I would propose to my Lords is that this appeal is dismissed. In the circumstances there is nothing which this court could possibly refer to the European Court of Justice.”

The Court accordingly ordered that Dr Konodyba’s application to adjourn the appeal was refused, her appeal was dismissed and her application to refer questions to the ECJ be refused.

Dr Konodyba thereafter obtained privately rented accommodation. When she was required to leave that accommodation she made another application to the Council for accommodation under Part 7 of the Housing Act 1996. A decision made pursuant to section 184 of that Act concluded that she was ineligible for assistance. A review was requested, and, on 23^rd November 2012, Mr Stack upheld the earlier decision. He found that whereas Dr Konodyba had been in registered employment at the Thistle Hotel during 2006 following which she has been self-employed for a period, she did not enjoy on-going rights of residence in the UK and was accordingly ineligible for housing assistance. On this occasion, and in response to representations made on behalf of Dr Konodyba, Mr Stack additionally found that Dr Konodyba did not enjoy retained worker status because she could not show temporary illness (he accepted that she was ill but made findings of fact that the illness was not temporary and in any event not causative of the loss of her employment at the Thistle Hotel) and further, that while Dr Konodyba had engaged in self-employment for a short period in 2006, for similar reasons she did not have or retain the status of a self-employed person. In the course of his decision Mr Stack made reference to, and relied upon, the decision of Mr Briggs QC (now Briggs J) in Putans v London Borough of TowerHamlets [2007] HLR 10 (“Putans”) to the effect that “retained” worker status did not extend to A8 nationals during the Accession period. Dr Konodyba appealed.

Judge McMullen heard arguments relating to res judicata, estoppel and abuse of process, and dismissed the appeal, without making any decision on Dr Konodyba’s retained worker status or self-employment status. With the permission of Patten LJ, given on 24^th February 2012, Dr Konodyba appeals to this court.

Mr Westgate QC for Dr Konodyba submitted that the judge was wrong to have held that she was prevented from re-asserting her Baumbast claim, because she had made a new housing application as a result of a fresh incident of homelessness; on such new application she could re-argue old matters see Rikha Begum v TowerHamlets Borough Council [2005] 1 WLR 2103 and, in any event, her claim to have retained her worker status or to have self-employment status had never been adjudicated upon. He said that doctrines of res judicata and issue estoppel did not apply in public law; to the extent that the court could control abuse of its process, there was no abuse in seeking to re-argue points on successive applications.

Mr Rutledge submitted that not only was it a clear abuse of process to seek to re-argue a point which had already been before the Court of Appeal and dismissed but it was also an abuse to seek to introduce new arguments about retained worker status and self-employed status which could have been raised before the Court of Appeal and which could have been determined by that court. The rule in Henderson v Henderson (1843) 3 Hare 100 should apply in such a case in public law as much as in private law to enable the court to prevent abuse of its process.

By way of riposte Mr Westgate pointed out that Rix LJ, on the occasion when the matter was previously before this court, said:-

“… if there is any validity in Dr Konodyba’s new point, it is one which may be (but I am not to be thought of as encouraging her) she can put anew to the Royal Borough with whatever consequences might ensue from that.”

We heard argument from both sides on what I may call res judicata/issue estoppel/abuse of process and, having heard that argument decided that it was clearly abusive for Dr Konodyba to seek to argue the same Baumbast point which she had expressly abandoned on 29^th July 2009 in the face of the Court of Appeal. We did not therefore hear argument on that. We were not able to decide at once whether it would be abusive for Dr Konodyba to argue the points about retained worker and self-employed status which she could have argued but did not argue in her earlier appeal, so argument on those points did take place.

The extent to which res judicata or issue estoppel apply in public law is a somewhat vexed question, see Wade and Forsyth, Administrative Law, 10^th ed (2009) pages 204-210. But in my view there can be no doubt that in public law, as much as in private law, the Court must be able to stop abuse of its own process, see O’Reilly v Mackman [1983] 2 A.C. 237 especially 285 D-E per Lord Diplock. One of the most obvious forms of abuse is to attempt to re-litigate matters which have already been disposed of by a final judgment which is unappealed. As far as the Baumbast point is concerned that is exactly what Dr Konodyba is trying (but should not be permitted) to do.

All that Rikha Begum decided was that, on any application for housing assistance, the local authority, if satisfied that the applicant was or might be homeless or threatened with homelessness, were obliged to make enquiries as to the applicant’s eligibility. There was no further requirement for the applicant, before inquiries were made, to show a material change of circumstances since the last application. If, however, no new (or only fanciful or trivial new) facts are revealed, the local authority can (and normally should) reject the application. That was the position in this case. Dr Konodyba’s second application, so far as the Baumbast point was concerned, relied on exactly the same facts as her previous application which was concluded against her by this court’s dismissal of her appeal.

Mr Westgate submitted that since Baumbast and Zalewska, the ECJ had decided the cases of Harrow London Borough Council v Ibrahim and Teixeira v Lambeth London Borough Council (Cases C 310 and 480/08) and that, although those cases related to Denmark and Portugal which were original Member States of the EU, there were comments in the judgments which would assist Dr Konodyba in asserting her rights as a national of an acceding State. Quite apart from the obvious difficulty of sustaining such submission as a matter of law, that cannot alter the fact that the point has actually been decided against Dr Konodyba and that it would be an abuse to permit re-litigation of the point. If a change in the law shows that a final decision of this court is actually wrong, the proper course is to apply for permission to appeal out of time in the light of the subsequent development of the law. Such an application is, for obvious reasons, only rarely granted.

As to the points which could have been (but were not) taken about retained worker and self-employed status, the modern private law is contained in Johnson v Gore Wood & Co [2002] 2 A.C. 1 in which Lord Bingham said (para 31 C-D):-

“It is… wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of all the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

I see no reason why this general approach should not apply as much in public as in private law with the possible qualification that a public body with statutory obligations to provide, for example, housing assistance or a home from, no doubt, scarce housing stock should not be over-protected from addressing points which are truly new, even if they arise on facts which have already been subject to a determination.

Applying that approach in the present case, one observes that Mr Stack did deal with the new points and it seems to me that, on the broad approach adopted by Lord Bingham, it would be right for us to do so also. Rix LJ did not, of course, intend to rule out the possibility of the abuse argument now made by Mr Rutledge; but equally he indicated that the court’s decision was not necessarily the end of the road for the new points now sought to be raised.

These points turn out to be the same point because the question whether Dr Konodyba had retained her worker status or acquired a self-employed status both depend on the question whether she was at the time of the decision on eligibility

“temporarily unable to work as the result of an illness or accident,”

see regulations 6(2) and (3) of the Immigration (EEA) Regulations 2006 implementing Article 7 of Directive 2004/38/EC.

On this question Mr Stack considered the evidence before him and in his letter of 23^rd November 2010 came to the following conclusions:-

“In making a finding of fact I have considered whether you are currently unable to work as a self-employed person due to illness or accident and further whether, if you are, such illness or accident has been the reason why you have not worked as a self-employed person since October 2006 and that it is “temporary”. I have considered your solicitor’s contention that you have numerous qualifications that would make it highly likely that you would be able to obtain employment in the UK once you are well enough to seek work. However, I am not satisfied your illness is “temporary”.

In reaching this conclusion I have had regard to the medical information which supports the conclusion that your condition, a combination of mental and physical health conditions, is permanent. The medical information indicates that you suffer, and continue to suffer, from a serious mental health condition, diagnosed as a paranoid personality disorder as well as depressive illness and anxiety, and that your health problems have been considered sufficiently incapacitating to entitle you to an award of Disability Living Allowance. I note in particular that a community care assessment dated 2^nd June 2008 stated that your “…ongoing beliefs that others are against [her] are making employment difficult”. I also consider that reports dating between 2006 and 2010 do not note any improvement in your condition, and that your GP wrote on 19^th October 2010 that your “prognosis is not good and she won’t engage with secondary care”. Further I note that the First Tier Social Security Tribunal concluded in December 2009 that you “remain sick”. The Tribunal also noted that you have received incapacity credits from 24^th July 2006. All of that, in my opinion, supports the conclusion that your illness is not temporary as you have experienced it for 4 years now, without any indication from medical practitioners of a positive prognosis. And central government benefits agencies appear to concur that you are unlikely to be able to work in the foreseeable future.”

Mr Westgate submitted that Mr Stack had erred in law because in holding that Dr Konodyba was “unlikely to be able to work in the foreseeable future” he had applied the wrong test; he should have asked whether Dr Konodyba had permanently exited the job market.

We were referred to the case of De Brito v SSHD [2012] EWCA 709 in which it was said in a case where the relevant regulation referred both to “permanent incapacity to work” and a person who is “temporarily unable to work” that the concepts were effectively opposite sides of the same coin. That is not this case where the relevant question is merely whether Dr Konodyba was temporarily unable to work but this court also quoted Blake J in the Upper Tribunal in Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC) as saying in that case that the question which the Tribunal in that case needed to consider was whether:-

“there were realistic prospects of [Mr De Brito’s] being able to return to work and therefore remaining engaged with the labour market.”

That seems to me the test which Mr Stack was applying. If a person is unlikely to be able to work in the foreseeable future there are no realistic prospects of her being able to return to work. Mr Stack went on to say

“I cannot concur with your solicitor’s view that your prospects of becoming self-employed in the foreseeable future is a realistic one”

I cannot think that Mr Stack’s use of the words “foreseeable future” connotes any error of law. After all as Mr Rutledge pointed out no one can be expected to peer into the unforeseeable future. It is also important that decisions of housing reviewing officers are not combed over to find errors of law when the same legal concept can be expressed in varying ways.

Ultimately the question whether Dr Konodyba was temporarily unable to work is a question of fact. Mr Stack carefully considered the evidence and there is no legal flaw in his reasoning.

The judge was not asked to consider this question but it is necessary for us to do so. I would confirm Mr Stack’s decision and dismiss this appeal.

I agree.

I also agree.