London Borough of Sutton v Betts

Factual and Procedural Background

On 6 March 2024, a judge gave an extempore judgment in a homelessness appeal brought under section 204 of the Housing Act 1996. The appellant, referred to here as Appellant, challenged a decision by a local authority, referred to as Company A, which held that its housing duty had been discharged because the Appellant had voluntarily ceased to occupy accommodation procured by Company A. The judge found deficiencies in the original decision and the subsequent review process, allowing the appeal and ordering Company A to pay the Appellant's costs. Company A then applied for permission to appeal, which was considered by a higher judge who found some grounds arguable but noted the appeal appeared academic, leading to an adjournment for further consideration.

Legal Issues Presented

1. Whether the original decision and the review process properly considered the reasonableness of the Appellant’s continued occupation of the accommodation.
2. Whether permission to appeal should be granted despite the appeal appearing academic.
3. The applicability of the test for permission to appeal in cases where the substantive issues are academic and only costs remain live.

Arguments of the Parties

Appellant's Arguments

• The appeal is academic because the Appellant has found alternative accommodation and no longer requires assistance from Company A.
• The Appellant does not consent to the appeal proceeding and objects to it.
• Company A has not offered to indemnify the Appellant against costs.
• Public funding would not be available for the appeal, so arguments supporting the judgment would not be advanced.
• Even if the appeal is academic, the court should still hear it because the costs order imposes onerous duties on local housing authorities.
• The Appellant is an assured shorthold tenant with tenuous occupation, and potential future homelessness might make the circumstances relevant to Company A’s duties.

Company A's Arguments

• Some grounds of appeal are not arguable.
• The points raised are ill-founded.
• The appeal is academic and permission to appeal should be refused.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the background of the homelessness appeal and the procedural history, noting the initial judge found deficiencies in the original decision and review process. Permission to appeal was discretionary and subject to the "second appeals test" under CPR rule 52.7.

The court applied the principles from Hutcheson v Popdog Ltd, emphasizing that even if an appeal raises important points, it should not proceed if no real issues remain between the parties. All three criteria from that case must be satisfied before an academic appeal is allowed: (i) general importance of the point, (ii) respondent’s consent or indemnity, and (iii) proper ventilation of arguments.

While the first criterion was met, the court found the second and third were not satisfied because the Appellant objected to the appeal proceeding and no costs indemnity was offered, nor was there evidence that both sides would fully argue the case. The court also highlighted the public interest in avoiding unnecessary costs, especially where the only live issue is costs and no clear evidence of the quantum was presented.

The court distinguished this case from others where permission had already been granted and full argument had been heard, noting the present appeal was academic and the relationship between the parties was speculative and contingent.

Given the lack of precedential value of the lower court’s decision and the disproportionate costs likely to be incurred, the court exercised its discretion to refuse permission to appeal.

Holding and Implications

Permission to appeal is refused.

The direct effect is that the appeal will not proceed, and the costs order against Company A remains in place. The decision does not establish new legal precedent, as the court emphasized the lack of precedential value of the lower court's decision and the academic nature of the appeal. The ruling underscores the importance of the Hutcheson v Popdog criteria in managing academic appeals and highlights the court’s discretion to prevent disproportionate litigation costs where substantive issues are no longer live between the parties.