Reaffirming the Salem Discretion: Court of Appeal Declines to Determine Academic Appeal on NRPF Support and Article 8

Introduction

In LR, R (On the Application Of) v Coventry City Council [2025] EWCA Civ 1408, the Court of Appeal (Civil Division)—comprising Lord Justice Newey, Lord Justice Singh, and Lord Justice Bean—refused permission to appeal on a rolled‑up basis after concluding that the case had become academic between the parties. The appeal arose from a judicial review concerning the level of support provided by a local authority to a family with “no recourse to public funds” (NRPF), whose immigration status at the time restricted access to mainstream welfare benefits. The claimant, LR, a 16‑year‑old born in Nigeria and resident in the UK since 2012, challenged Coventry City Council’s assessment of financial assistance under section 17 of the Children Act 1989 (CA 1989) and the operation of paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (NIAA 2002)—the so‑called “human rights exception” to restrictions on eligibility for support.

While the Administrative Court had quashed the council’s assessment on grounds unrelated to the level of support (thus requiring reassessment), it rejected claims that section 17 or Article 8 of the European Convention on Human Rights (ECHR) mandated higher payments. LR sought to appeal aspects of that judgment. However, before the appeal could be determined, the Home Secretary granted the family leave to remain, enabling access to mainstream benefits; the Council confirmed it would continue supporting the family pending that transition. The Court of Appeal consequently applied the well‑known principle in R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450 to decline to determine issues that had become moot.

This judgment is significant for its reaffirmation of the Salem discretion, emphasizing caution in hearing academic appeals, even where a discrete point of statutory construction is raised, and underlining the court’s reluctance to issue advisory opinions on fact‑specific Article 8 challenges. It also leaves open, for a future case, important questions about the interpretation of paragraph 3 of Schedule 3 NIAA 2002 and its interface with section 17 CA 1989 for NRPF families.

Summary of the Judgment

The Court refused permission to appeal after a rolled‑up hearing (para 2), because the case had become academic: the family obtained leave to remain, removing them from Schedule 3 NIAA 2002’s restrictions (paras 13–14).
Article 8‑based grounds (Grounds 2 and 3) were not entertained as they were fact‑specific and, given mootness, unsuitable for adjudication (para 19).
Although Ground 1 raised a discrete question of statutory construction concerning paragraph 3 of Schedule 3 NIAA 2002, the Court declined to determine it under the Salem discretion: it was not evident that the point would need resolution imminently, and it should be decided in a case where it matters to the parties (para 20).
Additional factors underlining mootness included the absence of any live claim for damages on appeal (paras 15–16) and the absence of a challenge to the Council’s reassessment following the quashing order (para 15).
The Court reaffirmed the principled restraint in hearing academic appeals, relying on Salem, and distinguished the context in which the Court in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 proceeded to determine a discrete statutory point (paras 16–18).

Background and Procedural History

LR and her family entered the UK in 2012. Her parents’ visas expired and were not renewed; they became overstayers (para 3). In 2023, after domestic abuse led LR’s mother to leave the father, Coventry City Council provided emergency accommodation and financial support (para 4). Because the family lacked leave to remain, the Council treated them as ineligible for mainstream welfare benefits, relying on paragraph 1 of Schedule 3 NIAA 2002 (para 5). Paragraph 3 of Schedule 3, however, allows a public authority to act if necessary to avoid breach of a person’s Convention rights (para 5).

LR’s mother applied for leave to remain in November 2023; that application was undecided at the time of the Administrative Court hearing (para 6). As of mid‑2024, the Council paid £196.72 per week under a 24 April 2024 assessment (para 7). LR issued judicial review proceedings on 16 July 2024 challenging the level of support and the Council’s alleged fixation with asylum‑support levels, seeking declarations of unlawfulness and damages for ECHR breaches (para 7).

On 7 January 2025, the Administrative Court rejected arguments that section 17 CA 1989 or Article 8 ECHR required higher payments but quashed the assessment on other grounds (paras 8–9). After reassessment on 3 April 2025, the Council decided the support level should remain unchanged (para 9).

LR appealed, arguing three grounds: (1) misinterpretation of paragraph 3 of Schedule 3 NIAA 2002; (2) error in finding Article 8 was not engaged; and (3) misdirection in failing to find an Article 8 breach (para 11). A rolled‑up hearing was listed (para 13). Before it occurred, the Home Secretary granted the family leave to remain (12 August 2025), and the Council confirmed the family’s transition to mainstream benefits with interim support (15 August 2025) (para 13). At the hearing on 23 October 2025, the Court indicated permission would be refused; this judgment gives reasons (paras 1–2).

The Issues on Appeal

Ground 1: Whether the Administrative Court misinterpreted paragraph 3 of Schedule 3 NIAA 2002, effectively permitting Coventry to restrict support because LR’s mother was an overstayer. The appellant framed this as an issue of general importance affecting NRPF families (paras 11–12).
Ground 2: Whether the Administrative Court erred in concluding that Article 8 ECHR was not engaged on the facts (para 11).
Ground 3: Whether the Administrative Court misdirected itself in not finding a breach of Article 8 ECHR (para 11).

Precedents Cited and Their Influence

R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450

Salem is the leading authority on whether appellate courts should determine issues that have become academic between the parties. Lord Slynn’s formulation—endorsed by the House—establishes:

The court has a discretion to hear an academic appeal in public law cases involving a public authority.
That discretion must be exercised with caution.
Academic appeals should not be heard unless there is a good reason in the public interest, for example where a discrete point of statutory construction arises, does not require detailed factual inquiry, and is likely to recur in many cases needing resolution soon (para 16).

The Court of Appeal applied Salem directly. It noted that the case had become moot after leave to remain was granted (paras 13–14) and then assessed whether, notwithstanding mootness, any ground should be heard in the public interest. It concluded no: Grounds 2 and 3 were fact‑specific (para 19) and Ground 1, though a discrete construction issue, did not meet the threshold of likely imminent need for authoritative resolution (para 20).

The judgment also references that earlier authorities such as Sun Life and Ainsbury v Millington—once understood to preclude hearing academic disputes—must be read as limited to private law contexts, a clarification that Salem expressly provides (para 16).

R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; [2021] 1 WLR 2326

Dolan is cited as an application of Salem where the Court did hear a discrete point of statutory construction in the public interest, given its potential to arise in criminal proceedings and the need for an appellate resolution (para 18). The present Court of Appeal distinguished that scenario: Dolan involved a point both discrete and pressing (expected to recur imminently and in multiple fora), while here Ground 1 was not shown to require immediate authoritative determination; the Court preferred to defer to a case where the issue matters to the parties (para 20).

The Court’s Legal Reasoning

Mootness and the Salem Discretion

The logical sequence of the Court’s reasoning was as follows:

The claim had become academic because the grant of leave to remain removed the family from Schedule 3 NIAA 2002’s restrictions, thereby eliminating the practical need for the relief sought on appeal (paras 13–14).
There was no live claim for damages to keep the lis alive: although damages had been pleaded in the original claim, they were not pursued in the appellant’s notice or skeleton argument; nor had the reassessment been challenged (para 15). Absent a live remedy, an appellate determination would be advisory.
Applying Salem, the Court considered whether any ground nonetheless warranted adjudication in the public interest (para 16). It drew a sharp line between:
- Fact‑intensive questions under Article 8 (Grounds 2 and 3): unsuitable for determination in an academic appeal (para 19).
- Discrete statutory interpretation (Ground 1): theoretically capable of entertaining in a moot case, but not justified here because it was not shown that the point was likely to require an imminent appellate ruling; hence better reserved for a case where it directly affects the parties (para 20).

The Court’s approach underlines two complementary concerns at the heart of Salem:

Institutional restraint: the avoidance of advisory opinions, particularly on fact‑sensitive issues.
Public interest threshold: only discrete, pressing points of law that will likely recur and need swift resolution justify proceeding in a moot case.

The Unresolved Construction Issue: Paragraph 3 of Schedule 3 NIAA 2002

Ground 1 challenged the Administrative Court’s interpretation of paragraph 3 of Schedule 3 NIAA 2002, which allows public authorities to act despite paragraph 1’s exclusions “if, and to the extent that, [doing so] is necessary for the purpose of avoiding a breach of … a person’s Convention rights” (para 5). The appellant contended that the Judge had wrongly treated that provision as permitting restriction of support to a “human‑rights minimum” simply because the parent was an overstayer (para 11), arguing that the interpretation affects many future NRPF family cases (para 12).

The Court of Appeal formally took no position on the merits of this construction debate. Its refusal to hear Ground 1 rested entirely on Salem’s cautionary discretion and the absence of pressing public interest need (para 20). Practitioners should note: the correct calibration between section 17 CA 1989 duties to children and the paragraph 3 exception remains a live and important question for a future, live controversy.

Article 8 ECHR Grounds: Fact‑Specific and Unsuitable Once Moot

Grounds 2 and 3 alleged error in Article 8 engagement and breach. The Court accepted that these arguments were too fact‑specific to warrant appellate adjudication where the matter had become academic (para 19). This is a clear signal that, absent a live issue or a discrete point of principle, the Court will not use moot appeals to opine on proportionality or minimum support thresholds under Article 8.

Case Management Considerations Strengthening Mootness

The absence of any live damages claim on appeal (para 15) meant no outstanding legal consequence turned on the Court’s decision.
The Council’s reassessment after the quashing order maintained the same support level; LR did not challenge this further decision (para 9, para 15). That undercut any argument that a live controversy persisted.
The rolled‑up hearing vehicle did not alter the analysis: the Court could still refuse permission given mootness and the Salem thresholds not being met (para 2).

Impact and Practical Significance

Immediate Effects

No new binding appellate authority now clarifies the reach of paragraph 3 of Schedule 3 NIAA 2002 in NRPF family support cases; the debate remains open.
The Administrative Court’s quashing of the original assessment stands but without appellate endorsement of higher mandatory payments under section 17 or Article 8 on these facts.
Local authorities may continue to rely on individualised human‑rights assessments under paragraph 3, but this judgment does not approve any rigid practice of capping support to asylum‑support levels; that question awaits a live appellate determination.

Longer‑Term Practice Points

For claimants: To avoid mootness in fast‑moving immigration/welfare contexts, consider:
- Maintaining a pleaded and pursued claim for damages where appropriate, so that a live remedy remains even if status changes.
- Challenging any post‑quashing reassessment if the same alleged unlawfulness persists.
- Framing any appellate point of construction with concrete evidence of recurrence and pressing need for resolution.
For public bodies: Ensure careful, case‑specific assessments when applying paragraph 3 Schedule 3; do not treat asylum‑support rates as an automatic ceiling. Demonstrate reasoning showing why the level provided is necessary and sufficient to avoid Convention breaches, and how children’s welfare has been addressed under section 17.
For courts and practitioners: The judgment re‑centres Salem as a gatekeeping principle. Even discrete statutory points will not be determined in academic appeals unless the court is persuaded of imminent need and wider public interest.

Complex Concepts Simplified

Overstayer: A person who remains in the UK after their visa has expired without obtaining new leave to remain.
NRPF (No Recourse to Public Funds) and Schedule 3 NIAA 2002:
- Paragraph 1 restricts eligibility for various forms of support—including under section 17 CA 1989—for certain categories, including some overstayers.
- Paragraph 3 is the “human rights exception”: it permits support despite paragraph 1 where necessary to avoid breaching ECHR rights.
Section 17 Children Act 1989: Imposes general duties on local authorities to safeguard and promote the welfare of children in need in their area, including provision of services (which can include financial assistance) to meet the child’s needs.
Article 8 ECHR: Protects the right to respect for private and family life, home, and correspondence. In welfare contexts, whether Article 8 is engaged and breached is often fact‑sensitive and assessed by proportionality.
Rolled‑up hearing: A procedure in judicial review where permission to appeal (or to apply) and the substantive hearing are listed together; the court first decides permission, and if granted, proceeds immediately to the merits.
Academic (moot) appeal: An appeal where there is no longer a live dispute affecting the parties’ rights or obligations. Courts generally decline to determine academic issues unless the Salem public‑interest criteria are met.
Discrete point of statutory construction: A pure question about the meaning of legislation that can be resolved without extensive fact‑finding.

What the Court Did Not Decide

The proper interpretation of paragraph 3 Schedule 3 NIAA 2002 in NRPF family cases—specifically, whether once the human‑rights exception is triggered, the local authority’s power/duty is constrained to a “minimum necessary” level or whether broader section 17 considerations apply—is left open.
Whether Article 8 was engaged or breached on the facts of LR’s case. The Administrative Court’s rejection of those grounds was neither endorsed nor overturned.
The lawfulness of any alleged local authority policy of pegging section 17 support to asylum‑support rates. The Administrative Court quashed the assessment on other grounds; the Court of Appeal expressed no view on whether a rigid policy would unlawfully fetter discretion.

Key Takeaways

Salem reaffirmed: The Court will not generally entertain academic appeals; caution is the rule, and public interest must be clear and pressing.
Fact‑sensitive Article 8 issues are ill‑suited to determination in moot appeals.
Discrete statutory construction points may be heard if they meet Salem’s public‑interest threshold (as in Dolan), but not otherwise.
In NRPF child‑support cases, the legal boundaries between paragraph 3 Schedule 3 NIAA 2002 and section 17 CA 1989 remain unsettled at appellate level; a live case is needed for authoritative resolution.
Litigation strategy matters: pursuing damages where appropriate and challenging subsequent reassessments can preserve a live controversy for appellate review.

Conclusion

LR v Coventry City Council is a measured restatement of appellate restraint. The Court of Appeal declined to convert a moot case into an occasion for advisory guidance, even where one ground presented a discrete issue of statutory construction with apparent systemic ramifications. The Court’s reliance on Salem—tempered by its contrast with Dolan—signals that the threshold for adjudicating academic appeals remains high: the question must be purely legal, fact‑sparse, and pressing in the public interest because it will recur imminently across many cases.

For practitioners in NRPF child‑support matters, the judgment preserves the status quo: paragraph 3 Schedule 3’s scope and its interaction with section 17 CA 1989 await authoritative appellate clarification in a live dispute. Until then, local authorities must continue to conduct individualized assessments that are human‑rights compliant and sensitive to children’s needs, while claimants should structure litigation to avoid mootness where a precedential ruling is sought. The case thus stands as an important procedural waypoint, refining not the substance of NRPF support law but the circumstances in which appellate courts will pronounce upon it.