Konodyba v Royal Borough of Kensington and Chelsea

In public law, a fresh application does not permit re-litigation of an issue finally determined by an unappealed judgment where the new application relies on the same facts. Such re-litigation is an abuse of process. A local authority may reject an application if no new facts, or only fanciful or trivial new facts, are revealed. Abuse remains a broad, merits-based assessment where genuinely new issues are raised, even against previously determined facts. For retained worker or self-employed status under the Immigration (EEA) Regulations 2006, temporary inability to work because of illness or accident is ultimately a question of fact. Realistic prospects of returning to work and remaining engaged in the labour market are relevant.

Dr Konodyba challenged a review decision that she was ineligible for housing assistance under Part 7 of the Housing Act 1996 because she was subject to immigration control under section 185(2). On an earlier application, her Baumbast appeal had been dismissed after she abandoned that ground. On a later application, the review officer also rejected claims that she had retained worker status or acquired self-employed status. His Honour Judge McMullen QC dismissed her appeal on res judicata, issue estoppel and abuse-of-process grounds without deciding those new status issues. The central questions were whether the Baumbast issue could be reopened, whether the new arguments were abusive, and whether the illness-related test for residence status was satisfied.

Appeal dismissed. The Court of Appeal unanimously upheld the review officer’s decision and the county court’s dismissal.

1. Finality and abuse of process. In public law, as in private law, the court must be able to prevent abuse of its own process. Re-litigating a matter disposed of by a final unappealed judgment is an obvious form of abuse: O’Reilly v Mackman [1983] 2 A.C. 237. The second application relied on the same facts as the earlier Baumbast application and could not reopen that issue.
2. Fresh housing applications. On a new application for housing assistance, the authority must inquire into eligibility if satisfied that the applicant is or may be homeless or threatened with homelessness. The applicant need not first establish a material change of circumstances. However, where no new facts, or only fanciful or trivial new facts, are revealed, the authority may normally reject the application, applying Rikha Begum v Tower Hamlets Borough Council [2005] 1 WLR 2103.
3. New issues. Whether a point which could have been raised earlier is abusive requires the broad, merits-based assessment described in Johnson v Gore Wood & Co [2002] 2 A.C. 1. The court must consider all the public and private interests and the facts, focusing on misuse of its process. A public body with statutory housing obligations should not be over-protected from addressing points that are genuinely new, even if they arise from previously determined facts. The retained-worker and self-employed arguments were therefore considered.
4. Temporary inability to work. Both arguments depended on regulations 6(2) and 6(3) of the Immigration (EEA) Regulations 2006, implementing Article 7 of Directive 2004/38/EC. The relevant question was whether the applicant was temporarily unable to work because of illness or accident. The discussion in De Brito v SSHD [2012] EWCA 709 concerned a different statutory formulation. The realistic-prospects approach identified in Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC) was applicable.
5. Application. The review officer had carefully considered the medical and other evidence. His conclusion that the illness was not temporary, expressed partly by reference to inability to work in the foreseeable future, involved no error of law. Review decisions should not be combed for verbal differences where the same legal concept has been applied. The decision was confirmed and the appeal dismissed.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 982, dismissed the appeal and confirmed the review decision and the dismissal below.
2. Central London County Court: His Honour Judge McMullen QC dismissed the appeal from the housing review decision, relying on res judicata, issue estoppel and abuse of process.
3. Earlier Court of Appeal: A previous appeal was dismissed after the appellant abandoned her Baumbast grounds; no citation for that decision was stated.