Ismail & Anor v London Borough of Newham

An appeal that has become academic between the parties should ordinarily be dismissed. The Court of Appeal retains a narrow discretion to hear it in exceptional circumstances, especially where a public-law issue of general importance may recur. The issue’s importance, or a reasonable prospect of success, is not enough where the result cannot affect the parties’ rights or obligations. Relevant safeguards include the respondent’s consent or full costs indemnity without prejudice, and confidence that both sides’ arguments will be fully ventilated. The court must exercise the discretion cautiously. It may decline to determine an underlying statutory-construction question and leave it for a case in which it has a real effect. A later change in circumstances giving the appellant the relief sought will generally make the appeal academic.

Mr and Mrs Ismail applied to the Council for housing assistance under Part VII of the Housing Act 1996. The Council treated Mr Ismail as subject to immigration control and therefore ineligible under section 185. The County Court dismissed their appeal under section 204 and held that the children did not alter the family’s eligibility.

Permission for a second appeal was granted on whether the children were persons from abroad under section 185. Before the appeal was heard, Mr Ismail obtained limited leave to remain, made a new application, and became eligible for assistance. The Council said that the appeal was academic. The appellants relied on the general importance and merits of the issue. The central question was whether the Court should exercise its discretion to determine an appeal which could no longer affect the parties.

The appeal was dismissed as academic. Patten LJ refused a further adjournment and declined to determine the underlying merits.

1. The appellants’ position had changed materially. Mr Ismail’s grant of limited leave to remain meant that he and his family were eligible for housing assistance and had a housing duty owed to them. The appeal could not alter their immigration status or improve their legal position. Complaints about the quality or discharge of the accommodation had to be pursued through the review and appeal machinery under sections 202 and 204 of the Housing Act 1996.
2. The Court applied the principles in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580, also reported at [2012] 1 WLR 782. An academic appeal should proceed only in exceptional circumstances. The usual safeguards were a point of general importance, the respondent’s consent or complete costs indemnity without inappropriate prejudice, and proper ventilation of both sides’ arguments.
3. The discretion exists in public-law cases but must be exercised cautiously. That approach was reflected in Hamnett v Essex County Council [2017] EWCA Civ 6 and the principle stated in R v Home Secretary, Ex p Salem [1999] 1 AC 450. General importance and a reasonable prospect of success were accepted, but neither justified continuation where the outcome could make no difference to the parties.
4. Patten LJ noted the contrary approach expressed in Haringey v Simawi [2018] EWHC 290 (QB), but doubted its compatibility with the Court of Appeal’s guidance. In any event, the Council was justified in refusing to incur further time and expense, and there were no other pending appeals or significant cost savings requiring resolution of the point.
5. The Court therefore left unresolved whether the children were persons from abroad under section 185 of the Housing Act 1996. The appeal was dismissed.

• Court of Appeal (Civil Division): Permission for a second appeal was granted on the children’s status under section 185 of the Housing Act 1996. After Mr Ismail obtained limited leave to remain, the Court refused a further adjournment and dismissed the appeal as academic.
• County Court at Central London: The court dismissed the appeal under section 204 of the Housing Act 1996, holding that the parents were subject to immigration control and that the children did not make the family eligible for assistance.