Gwladys Fertre v Vale of White Horse District Council

The Appellant, Ms Fertre, is a national of France. She was admitted to the UK on 4 November 2020 under European Union law. On 18 November 2020, Ms Fertre was granted pre-settled status (‘PSS’) until 4 November 2025. At this date, Ms Fertre will become eligible for indefinite leave to remain.

On 21 September 2021, Ms Fertre applied to the Vale of White Horse District Council (“VWDC”) to be placed on the housing register for allocation of housing under Part VI 1996 Act (‘the 2021 Housing Application’). On 12 October 2021, VWDC refused that application on the ground that Ms Fertre was not eligible for allocation.

A week later, Ms Fertre applied as homeless to VWDC (‘the 2021 Homelessness Application’). On the same day, 19 October 2021, VWDC again concluded that she was not eligible for assistance. Ms Fertre sought a review of that decision pursuant to s.202 of the Housing Act 1996 (‘the 1996 Act’). Ms Fertre argued that that Article 23 of the UK-EU Withdrawal Agreement (‘WA’) precluded VWDC from deciding that she was not eligible, since she has PSS. In its letter dated 21 January 2022, VWDC upheld the decision (‘the s.202Eligibility Decision’). The basis of the decision included that Ms Fertre had not been economically active in the UK and that her right to equal treatment under Article 23 WA did not require her to be treated as eligible.

Ms Fertre lodged an appeal (‘the Appeal’) under s.204(1)(a) of the 1996 Act on 11 February 2022. This provides:

The Appeal mistakenly named South Oxfordshire District Council as Respondent. The substitution of VWDC as Respondent was finally resolved by the Order of Ellenbogen J for the reasons given at [2024] EWHC 112 (KB). The Appeal is presently set down for 1.5 days on 11 and 12 June 2024.

In the period during which the substitution issue was being resolved through the Courts, Ms Fertre’s children were taken into local authority care, and on 1 December 2023 she was compulsorily detained under Mental Health Act 1983 (‘the 1983 Act’). On 24 January 2024, Ms Fertre was discharged and placed in “step-down” accommodation by Oxford County Council under s.117 of the 1983 Act. The licence for that accommodation of 23 January 2024 stated that it was for a maximum of 8 weeks, i.e. to 19 March 2024. This was subsequently extended to 2 April 2024, and then to 22 April 2024.On 6 March 2024, Ms Fertre made a fresh application to VWDC for housing assistance (“2024 Homelessness Application”) in light of the threatened eviction from her stepdown accommodation. She contended that her self-employment in 2023 and her subsequent incapacity for work were new facts relevant to her deemed right to reside in the UK and therefore for her eligibility for housing assistance.On 11 March 2024, VWDC gave a decision under s. 184 of the 1996 Act to the same effect as its previous decisions, i.e. that Ms Fertre was a person from abroad who was not eligible for housing assistance.On 21 March 2024, Ms Fertre applied to VWDC under s. 202 of the 1996 Act for a review of this decision (‘the 2024 s.202 Application’), and asked VWDC to exercise its power under s. 188(3) of the 1996 Act to provide her with accommodation pending its review, in light of the threatened eviction.

On 28 March 2024, Ms Fertre sent VWDC a letter under the Judicial Review Pre-Action Protocol concerning what she saw as its failure to provide accommodation under s. 188(3). VWDC replied on the same day accepting that the conditions for the provision of accommodation pending s. 202 review were met but pointing out that Ms Fertre may be eligible for accommodation under s. 117 of the 1983 Act. VWDC also stated that the effect of the 2024 Homelessness Application was that Ms Fertre’s earlier one was ‘overtaken’, given that it was based on a factual case which is no longer the case, and VWDC considered that it was withdrawn,R (Konodyba) v RB Kensington & Chelsea [2011] EWHC 2653 (Admin) . VWDC said that, therefore, pursuing the Appeal could bring Ms Fertre no benefit, in light of her fresh application and in particular the new facts which fall to be considered on VWDC’s review.

Ms Fertre replied on 9 April, stating that Konodyba was, as relevant, only authority that a successful fresh application might render a pending appeal otiose, and the fresh application had not yet been successful. Ms Fertre also argued that, in any event, success on the Appeal would mean that any local authority would be required to treat her as eligible so long as she holds PSS, ie until 18 November 2025, regardless of her economic activity or capacity to work. It is clear that Ms Fertre considered the appeal ongoing, notwithstanding the 2024 Homelessness Application.

On 17 April 2024, VWDC issued its application to strike out the Appeal under CPR 52.18 (‘the Strike Out Application’). This provides:

The Strike Out Application was, at this point, advanced on the basis that Ms Fertre had made, and VWDC had accepted (in the sense of accepted that it was required to consider) a fresh application which, it argued, superseded the application to which the Appeal related. VWDC contended that the Court should not entertain an appeal against an application which has been superseded because even if the Court quashed it, the local authority would not be obliged to re-take the decision.

On 22 April 2024, Ms Fertre was granted a 6 month assured shorthold tenancy of supported accommodation for person with mental health issues.On 30 April 2024, Ms Fertre withdrew the 2024 s202 Application on the basis that she was no longer homeless. The letter to VWDC stated:

The letter did not refer to the ongoing Appeal.

On 3 May 2024, VWDC provided the review of its decision in respect of the 2024 Homelessness Application, deciding that Ms Fertre was not homeless. Following these developments, VWDC submitted further submissions in support of the Strike-Out Application, on the basis that the Appeal was unarguably academic, relying upon section 31(2A) of the Senior Courts Act 1981, and/or an abuse of process.

The matters before me are (1) the Strike Out Application (2) applications by the three proposed Intervenors, if the appeal is not struck out, to intervene at the hearing on 11 and 12 June 2024.

Mr Cox, for Ms Fertre, at paragraph 37 of his Written Submissions identified the following issues as arising from the two sets of VWDC written Submissions:

Mr Lane, for VWDC, helpfully clarified that he was not pursuing the sub-points to issue (2) as jurisdictional arguments, but they remained relevant to the questions of abandonment and/or abuse and/or the lack of interest. Similarly, his emphasis in argument did not focus on the section 31(2A) argument, and, for the reasons given in respect of issue (4) in particular, it has not been necessary for me to decide issues (5) and (6).

Abandonment

VWDC contends that the act of submitting the second application and/or its effective withdrawal (or determination) on the basis that Ms Fertre is not, presently, homeless has the effect that Ms Fertre must be taken to have abandoned her appeal in respect of the s.202Eligibility Decision.

There is no suggestion that Ms Fertre has in fact communicated any such abandonment explicitly. For what it is worth, any such contention would be incorrect. For example, the correspondence of 9 April 2024, following the 2024 Homelessness Application, made explicit reference to the effect of succeeding in the ongoing Appeal. In withdrawing the 2024 Homelessness Application, no suggestion was made that the Appeal was being abandoned.

It follows that VWDC relies upon a contention that abandonment is the automatic effect of, and/or to be implied from, the submission of the second application and/or the concession that Ms Fertre is no longer homeless.

VWDC advances its argument on the basis that, it says, a person can only have one application to a local authority at any one time, that the decision on review has been replaced by Ms Fertre’s fresh application, and that the court cannot entertain the appeal against a decision which no longer regulates the relationship between the Ms Fertre and the VWDC. Mr Lane refers by way of support to the decision of HHJ Robinson in Konodyba v RBKC [2011] EWHC 2653 (Admin). That case involved a local authority arguing the opposite of that which VWDC argue in this case, namely that the fact of an extant appeal in relation to an earlier application prevented an applicant from making a fresh application (not that the making of the fresh application had the effect of impliedly abandoning the previous one under appeal). Whilst the Court concluded that an authority cannot owe two different housing duties at the same time (a point which, for what it is worth, I find difficult to follow but which I do not need to decide for the purposes of this case), the authority was clearly inconclusive in respect of the question of whether a person could have two applications at the same item (i.e. one pending appeal and a further one based upon new circumstances). For my part, there was considerable force in the point made by HHJ Robinson when identifying the potential difficulty with the conclusion that an extant appeal and a later application based upon new circumstances were somehow mutually exclusive. The Judge said:

There was some debate between counsel as to whether the word ‘successful’ in this passage meant ‘successful’ as in accepted by the local authority as one which they would consider or ‘successful’ as in substantively successful. I have no doubt that the word was intended to mean substantively successful, not just that the applicant had successfully invoked the process by which their application would be considered. Merely having an application successfully accepted for consideration plainly does not, of itself, render the appeal otiose: that would only (potentially) be the case if the application was substantively successful.

I do not, therefore, consider that Konodyba provides VWDC with any assistance in the matter I have to decide.

In my judgment, the mere fact of making a fresh application does not, automatically or impliedly, constitute the abandonment of a prior application subject to an extant appeal. It might be that the effect of a successful fresh application renders the appeal pointless, and liable to be struck out as academic – which I consider in the context of this case further below. But it cannot, without some clear expression of intention or unequivocal conduct, amount to an abandonment of the appeal on the part of an appellant.

In the context of implied abandonment through the concession that Ms Fertre is now not homeless and/or the withdrawal of the 2024 Homelessness Application, Mr Cox relies upon London Borough ofTower Hamlets v Deugi [2006] EWCA Civ 159, [2006] H.L.R. 28. In that case, the applicant’s (D’s) request for assistance under Pt 7 of the 1996 Act was refused on the basis of ineligibility, because she was a person subject to immigration control, in January 2004. D requested a review of the decision and the authority upheld their decision.D appealed, as here, under s.204 on the basis that the ineligibility finding was wrong in law.The appeal was allowed and the authority’s review decision was quashed.The authority then failed to carry out a fresh review of the decision and eventually D appealed against the authority’s decision made in January 2004, asking the court to vary that decision to provide that she was eligible for assistance.The authority accepted that D had been eligible for assistance in January 2004 and that their decision had been wrong. They invited the appellant to withdraw her appeal on the basis that they would carry out a fresh review decision. The applicant refused to withdraw her appeal.The authority wrote again conceding that she had been eligible for assistance in January 2004 but purporting to withdraw their decision of that date. The authority then made a further decision in March 2005 concluding that D was no longer eligible for assistance because her son was no longer in full-time education. She requested a review of that decision but maintained her appeal against the January 2004 decision.At the appeal hearing, the authority argued that the appeal should be dismissed because the decision of January 2004 had been withdrawn and, in any event, the appeal had been overtaken by the decision in March 2005 and the pending review of it. Before the circuit judge, D accepted that she had ceased to be eligible for assistance by the time of the March 2005 decision, but nevertheless argued that the January 2004 decision should be varied to record that the authority owed her a duty because at that time she was eligible for assistance.The circuit judge allowed the appeal, varying the decision of January 2004 to record that the authority had owed the appellant a duty.The authority appealed to the Court of Appeal, where it was determined (albeit allowing the appeal in part in a respect not material for present purposes) that (per May LJ):

The case is a clear example of an appeal in relation to an earlier decision remaining extant notwithstanding a change in circumstances in terms of eligibility and/or a further application/decision/review by the authority. The concession as to the change of circumstances by an appellant is not an implicit abandonment of the earlier application or appeal: the proposition is contrary to the approach approved by Court of Appeal in Deugi. The case makes clear that the relevant analysis when there has been a change of circumstances (whether by reason of later application or a concession relating to present eligibility) is to consider whether the extant appeal has become academic. If so, the Court has the power to strike out, or stay, the appeal. This question is considered further below under issue (4).

Jurisdiction

For what it is worth, the judgment in Deugi is equally inconsistent with VWDC’s argument, albeit not pursued orally by Mr Lane, that by (a) their entertaining a fresh application or (b) Ms Fertre accepting that she is not presently homeless or (c) in response to that fresh application, VWDC determining under s. 202 that the appellant is not homeless, somehow deprives the Court, by way of jurisdiction, of the power to consider the s.204 appeal arising out of the first application.

Is A abusing the court’s process by maintaining the appeal?

The Court has an inherent power to strike out an appeal without determining it, where toallow it to proceed would be an abuse of the process of the court. Halsbury’s Lawsexpresses that power as follows:

In its written submissions, VWDC contended, firstly, that it was an abuse of the court's process to continue with an appeal under the firstapplication as she has made a second application which supersedes it. This is effectively just a restatement of the abandonment argument above. The second application does not supersede the first, which continues to regulate the position between the parties as at the date of that decision. Determining whether that historic position was right or wrong in light of a second application may have become academic (and thus liable to be struck out), but it is not abusive to continue an appeal in respect of that first determination pursuant to the statutory right to do so.

VWDC contended, secondly, that it was an abuse of the court’s process to seek to establish by this appeal that she waseligible in 2022, whilst at the same time ceasing to assert that she is eligible in2024. This plainly misstates Ms Fertre’s position. Ms Fertre has not ceased to assert that she was ‘eligible’ in 2022. Indeed, Ms Fertre is not ceasing to assert that she remains eligible (defined narrowly by reference to the PSS/WA eligibility issue); she merely accepts that presently she is no longer homeless. This change of circumstances does not of itself render the appeal abusive.

Mr Lane did not pursue in oral argument VWDC’s written submission that ‘it appears that [Ms Fertre’s] motivation for pursuing this appeal is to further a political agenda’. Having considered the evidence of Ms Fertre, had that submission been pursued I would have rejected it. There is nothing, in my judgment, about the continuing pursuit of the appeal which, of itself, is frivolous, vexatious orharassing or manifestly groundless or in which there is clearly no cause of actionin law or in equity so as to render its pursuit, in light of the changed circumstances, an abuse of process.

Academic

Notwithstanding the different ways in which VWDC articulated, in my view unsuccessfully, its case, this issue is really the nub of the dispute.

VWDC’s case is that the appeal has been rendered academic by the fact that Ms Fertre presently has the benefit of a 6 month assured shorthold tenancy, expiring in October 2024, and that whether Ms Fertre may become homeless or threatened with homelessness upon the expiry of that tenancy is speculation. It points out that in November 2025, Ms Fertre will in any event get indefinite leave to remain and the question of threshold eligibility for assistance disappears.

Mr Lane, conversely, accepts that even where there is no interest, a Court may nevertheless in its discretion, permit a matter to continue. In ‘Judicial Review’ (6^th Edition), the editors neatly encapsulate the position:

As to what may be relevant to the issue of whether a dispute was or had become academic, in Deugi, in the passage already quoted above, the Court of Appeal referred to ‘some benefit or advantage’ and ‘enduring benefit’. In Stanley v Welwyn Hatfield Borough Council [2021] H.L.R. 12 identified, by reference to Deugi, the identification of a ‘some distinct factor giving rise to a legitimate interest in pursuing the quashing of the first decision’. In Ugiagbe v London Borough of Southwark [2009] H.L.R. 35,Lloyd LJ (with whom Jacob and Sedley LJJ agreed) quashed the Council’s decision and then, in the context of remedy, stated at [30]-[31]:

This case makes clear that a risk of future homelessness can be a sufficient interest such the matter is not academic. In light of this, Mr Lane’s submission that the benefit or interest has as a matter of principle to be an actual, present benefit is not correct. There are plainly some matters which are so based upon speculation as to be fanciful, and such matters could not be legitimate interests for the purposes of persuading the Court that the matter pursued is not academic.

In the present case, I am entirely satisfied that Ms Fertre has a strong and legitimate ongoing interest in the resolution of the appeal. This assessment must, of course, be premised upon the necessary assumption that Ms Fertre is successful in the appeal, an issue in respect of which I plainly form no view whatsoever.

This is for the following combination of factors:

In the circumstances, I do not regard the Appeal as academic, nor that it should be struck out.

Even if I was wrong on my assessment of benefit, I remind myself that although the normal principle is that the Court does not decide hypothetical questions, the Court retains a discretion to determine an academic claim where there is public interest in doing so.

I consider that the point in issue is of considerable public importance. The importance of the case is underlined by the three intervener applications. The Secretary of State for Levelling Up, Housing and Communities, for example, describes the issue as one with ‘broader ramifications’ involving ‘legal issues of wider significance’ affecting most income-related welfare benefits. The3Million Ltd describes the issue as one potentially affecting ‘a large cohort of Union citizens’. The Independent Monitoring Authority describes the issues as being ‘of significant public importance and they may have considerable implications for other cases and situations, beyond this appeal. In this regard the IMA cites the most recently published UK Government statistics which note that as of December 2023, there are over 2 million citizens with pre-settled status with the UK’. There are two county court cases in which argument on the issue has been heard, but in respect of which judgments are awaited, although this would be the first time the issue is to be considered by the High Court.

Particularly given the proximity to the forthcoming hearing, even if, contrary to my findings above, Ms Fertre had been unable to identify an ongoing legitimate interest such that the issue was truly academic, I would depart from the normal position and, in light of the public interest in the point in issue, permit the appeal to continue.

In light of the foregoing, it is not necessary for me to consider the arguments relating to section 31(2A) Senior Courts Act 1981, which were not pursued with any vigour by Mr Lane in oral argument.

In the circumstances, I dismiss the application to strike out the Appeal.

It was, in the event, not necessary to hear orally from the proposed Intervenors, although I am grateful to Mr Cornwell (Counsel for the Secretary of State for Levelling Up, Housing and Communities), Mr Charles Bishop (Counsel for The3Million Ltd) and Ms Samantha Morrison (Senior Legal Advisor to Independent Monitoring Authority for the Citizens’ Rights Agreements) for their written submissions.

The applications by the Secretary of State for Levelling Up, Housing and Communities and the Independent Monitoring Authority for the Citizens Rights Agreements were, in the event, not opposed by either party. The application of The3Million Ltd was opposed by VWDC, but in oral argument fairly accepted in a light touch submission that its objection was tied up, at least to some degree, with its perception that the issue was academic and that intervening would not be proportionate. Having extended the time estimate from 1.5 to 2 days (to which neither party objected), the concern about timing fell away.

I am in no doubt that, given the nature and importance of the issue, efficient written and brief oral intervention by each of the three Intervenors from their different areas of expertise and experience will be of considerable assistance to the Court, and I grant the applications. I leave the parties to agree directions for the service of written submissions and the timetable for oral submissions, and to revert to the Court in writing if the matter cannot be agreed.