Fertre v Vale of White Horse District Council

Factual and Procedural Background

The Appellant, a French national who moved to the UK before the end of the Brexit transition period and was granted pre-settled status, applied for housing assistance under Part 7 of the Housing Act 1996, which deals with homelessness. Her application was refused on the basis that she was not residing in the UK under the EU-UK Withdrawal Agreement and was not habitually resident for housing allocation under Part 6. The initial judge dismissed her application, concluding she was not entitled to assistance under Part 7. The Appellant accepted she was neither homeless nor threatened with homelessness at the time, rendering the application academic.

Subsequent developments included the Appellant’s children being taken into local authority care, her compulsory detention under the Mental Health Act 1983, discharge to step-down accommodation, and a renewed housing assistance application, which was again refused. She was later granted a six-month assured tenancy in supported accommodation but withdrew her application as she was not homeless or threatened with homelessness. The Appellant’s mental health and housing situation remained precarious, with ongoing difficulties securing suitable accommodation.

The Appellant sought permission to appeal the refusal of housing assistance eligibility. The Respondent opposed the grant of permission on the grounds that the appeal was academic. The court considered the discretionary nature of granting permission to appeal, the relevance of academic appeals, and the involvement of interveners supporting both sides. The court ultimately granted permission to appeal with conditions relating to costs and intervention.

Legal Issues Presented

1. Whether the Appellant is eligible for assistance as a homeless person under Part 7 of the Housing Act 1996.
2. Whether the appeal is academic given the Appellant’s current housing status and mental health circumstances.
3. Whether permission to appeal should be granted despite the appeal potentially being academic.
4. The application of the legal test for granting permission to appeal in cases where the issues may be academic, particularly referencing the criteria from Hutcheson v Popdog Ltd.

Arguments of the Parties

Appellant's Arguments

• The Respondent should not be permitted to argue the appeal is academic again, as this was already decided by the lower court and raising it constitutes an abuse of process.
• The Appellant contends that the appeal has a contingent but real benefit, as a determination on eligibility may assist if she becomes homeless or threatened with homelessness between March 2025 and when she obtains indefinite leave to remain.
• The Appellant emphasizes the precariousness of her housing and mental health situation as relevant to the appeal’s importance.

Respondent's Arguments

• The appeal is academic because the Appellant is currently neither homeless nor threatened with homelessness, and this status has persisted for over six months.
• The Respondent objects to the grant of permission to appeal on this basis and does not intend to actively participate if permission is granted.
• The Respondent declined to indemnify costs for the appeal, and the appeal should not proceed without such indemnity.

Interveners' Position

• Four interveners have applied to intervene, two supporting the Appellant and two opposing her appeal, including the Secretary of State.
• The interveners will present arguments opposing the appeal, potentially relieving the Respondent of the burden of participation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the discretionary nature of granting permission to appeal and the necessity of satisfying the second appeals test under CPR 52.7. It considered the legal framework for academic appeals as established in Hutcheson v Popdog Ltd, emphasizing the three criteria: general importance of the point, respondent’s agreement or indemnity, and full ventilation of arguments.

The court noted the absence of indemnity from the Appellant or interveners and the Respondent’s intention not to participate. It analyzed prior judicial consideration by Constable J, who found the appeal was not academic due to the risk of future homelessness and the benefit of a threshold eligibility determination, especially in light of the Appellant’s mental health condition and precarious housing.

Subsequent factual developments did not materially alter the academic nature of the appeal, as the Appellant remained neither homeless nor threatened with homelessness. The court weighed the contingent benefit of a successful appeal against the Respondent’s concerns about public expenditure and accepted that interveners could adequately represent opposing arguments.

Ultimately, the court exercised its discretion to grant permission to appeal but imposed conditions limiting cost orders against the Respondent and allowing interveners to participate under agreed terms.

Holding and Implications

The court GRANTED PERMISSION TO APPEAL subject to conditions that the Appellant is not entitled to any order requiring the Respondent to pay costs of the appeal or the hearing below, and that interveners may participate under the terms of the draft order provided.

The direct effect of this decision is to allow the appeal to proceed despite its academic nature, recognizing a contingent benefit to the Appellant in establishing eligibility for housing assistance in future circumstances. No new legal precedent was established; rather, the court applied established principles to the specific facts and procedural posture of this case.