Ismail v Newham LBC  

[2018] EWCA Civ 665, 28 March 2018

Patten LJ

The Court of Appeal has reiterated in the context of homelessness appeals that the discretion to allow an academic appeal to proceed where it raises a point of law of general importance is to be exercised exceptionally and in accordance with established principles.

Stephanie Lovegrove appeared for the Respondent.

Part 7, Housing Act 1996 governs local authority assistance for homeless persons. A person is not eligible for assistance under Part VII if he is a person from abroad who is ineligible for housing assistance: s.185(1). 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: s.185(2).

In Ehiabor v Kensington & Chelsea RLBC [2008] EWCA Civ 1074, unreported, Arden LJ held (at [25]) that counsel for Ehiabor had been right to concede that the expression ‘a person from abroad’, which appears in s.185(1) must mean a person who is ineligible for housing assistance under s.185(2)-(4).

Mr and Mrs Ismail were asylum seekers who applied to Newham LBC (“the authority”) as homeless having been evicted from NASS accommodation when their applications for asylum were refused. They had three children who were born in the UK.

The authority found both applicants ineligible for assistance as they were “persons from abroad” under s.185(1), Housing Act 1996. This decision was upheld on review and on appeal to the County Court.

Mr and Mrs Ismail appealed to the Court of Appeal contending that their children were not persons from abroad under s.185 because they were born in the UK. They argued that the decision in Ehiabor was obiter dicta and had been wrongly conceded by counsel.

The Court of Appeal granted permission to appeal but soon afterwards, Mr Ismail was granted limited leave to remain in the UK. Having been notified of the change in circumstances, the Court of Appeal listed the appeal to consider whether the appeal should be dismissed as academic.

In dismissing the appeal, Patten LJ applied Hamnett v Essex CC [2017] EWCA Civ 6 and expressed doubt that the approach in Haringey LBC v Simawi [2018] EWHC 290 (QB) was consistent with that prior authority. He held that whilst the appeal raised a point of general importance and had a real prospect of success, the authority was justified in not wanting the appeal to proceed in the absence of an indemnity for costs given the immense financial pressures on local authorities and the outcome of the appeal had no effect on its housing duties towards the Appellants. There were no appeals pending where the same point arose and where significant savings could be made by hearing this appeal now in terms of the authority’s and court’s resources.