SG , R (on the application of) v London Borough of Haringey & Ors

An appellate court should not decide an important question of statutory interpretation where it did not arise on the facts, was not determined by the court below, and would therefore be considered in a vacuum. A court may entertain an appeal that has become academic through events, but this does not justify an appeal founded solely on observations that were unnecessary to the decision below.

Comments made for completeness, after the judge has stated that the issue is not an appropriate basis for deciding the claim, are obiter. They neither determine the issue nor create precedent. The scope of section 18 of the Care Act 2014 was consequently left open.

The appellant was an asylum seeker with severe mental-health difficulties who received accommodation and financial assistance under asylum-support arrangements. She sought accommodation from the local authority under the former statutory scheme and, subsequently, under the Care Act 2014.

The Administrative Court quashed the authority’s May 2015 assessment because it had failed to provide an independent advocate and had not properly considered accommodation. It refused, however, to declare that the authority was obliged to provide accommodation. The appellant appealed that refusal, contending that observations in the first-instance judgment raised the wider question whether section 18 imposed a duty to provide accommodation for accommodation-related eligible needs.

The central issue was whether that question had in fact been determined below and could properly be decided on appeal.

1. Appeal dismissed. The court unanimously held that the proposed issue concerning section 18 of the Care Act 2014 did not arise from the findings or decision below.

2. Section 18, whether it imposes a duty or confers a power, is engaged only after a section 13 determination that the adult has accommodation-related care and support needs. The local authority had failed to consider accommodation in its assessment. The first-instance judge therefore quashed that assessment, with the consequence that a fresh assessment was required. No relevant section 13 determination had triggered the section 18 stage.

3. The first-instance judge’s remarks on accommodation at paragraphs 52 and 53 had to be read with his express statement that this was not an appropriate way to determine the proceedings. They were passing commentary made for completeness. They did not find that the appellant had accommodation-related needs, nor did they contain a reasoned ruling on whether section 18 created a duty or a discretion.

4. Although an appellate court may exceptionally hear an appeal that has become academic because events have overtaken the parties, this appeal was academic in a further sense: the statutory issue had not been decided below and did not arise on the facts. It would be unsatisfactory to determine it without a factual and judicial foundation. Paragraphs 52 and 53 were obiter dicta and could not be treated as authority on section 18. Any future court considering that provision should do so on a clean sheet.

• Court of Appeal (Civil Division): Appeal dismissed: [2017] EWCA Civ 322. The court held that the section 18 issue had not been determined below and that the relevant first-instance remarks were obiter.

• High Court, Administrative Court: The Deputy High Court Judge quashed the local authority’s May 2015 decision because of the absence of an independent advocate and the failure to consider accommodation. He refused further declaratory relief and dismissed the challenge concerning the earlier January 2015 decision.