Rehoune v London Borough of Islington

An appeal which has become academic may be determined, particularly in public law, but the discretion is narrow and must be exercised cautiously. The court should ordinarily proceed only where there is a good reason in the public interest.

Relevant considerations include the general importance of the issue, the respondent’s consent or protection from prejudice, and whether both sides can be fully heard. A fact-sensitive, unpleaded issue should not be determined in an academic appeal where the evidence was not directed to it and the lower court made no relevant findings.

A local authority awarded the appellant a discretionary housing payment but initially required her to contribute £15 each week towards her rent shortfall. Nicklin J dismissed her judicial review challenge in [2019] EWHC 371 (Admin), finding that the authority operated a flexible starting-point policy rather than an inflexible requirement.

After judgment, the authority removed and backdated the contribution. A disability living allowance award also restored the appellant’s full housing benefit, and she later obtained permanent local authority accommodation. Her appeal was consequently academic.

The Court of Appeal considered whether the alleged lack of transparency surrounding the unpublished contribution policy nevertheless presented a sufficiently important public-interest issue to justify determining the appeal.

1. The appeal was dismissed unanimously as academic. The court had jurisdiction to determine an academic public law appeal, but the discretion was narrow and had to be exercised cautiously. There had to be a good reason in the public interest for proceeding: R v Secretary of State for the Home Department, ex parte Salem [1991] 1 AC 450 (HL) applied. Save in exceptional circumstances, relevant requirements included an issue of general importance, the respondent’s consent or adequate protection from prejudice, and the full and proper ventilation of both sides: Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party) (Practice Note) [2012] 1 WLR 782 applied. [18–19, 24, 27]

2. The challenges based on material considerations and indirect sex discrimination could not usefully be decided. They had been formulated against an alleged inflexible £15 policy, whereas the judge had found a flexible policy. Determination of the reformulated arguments would require a factual basis which had neither been investigated nor established. [21]

3. The transparency issue had wider importance because many people were affected by the discretionary housing payment policy. The appellant’s decision letter did not explain that £15 was only a starting point dependent upon individual circumstances, or that the contribution could be challenged by review. Other cases raising the issue could therefore be anticipated. [25]

4. Nevertheless, transparency was fact- and context-specific rather than a discrete question of statutory construction. The issue had not been pleaded and arose only during argument below. The authority had therefore lacked a fair opportunity to investigate the decision letters and its arrangements for communicating the policy. Nicklin J had made no findings about the relevant steps or their sufficiency. Those evidential omissions prevented full and fair determination of the issue in an academic appeal. Any issue of wider application should await litigation in which the facts were properly investigated and live rights were at stake. [24–27]

5. The ordinary rule that costs follow the event applied. The respondent was the successful party, had objected before permission was granted that the appeal was academic, and had been required to address all three grounds until the hearing. The appellant was ordered to pay the respondent’s costs on the standard basis, to be assessed if not agreed. [28–30]

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 2142, the court unanimously dismissed the appeal as academic and ordered the appellant to pay the respondent’s costs on the standard basis.

2. High Court, Administrative Court: Nicklin J dismissed the judicial review claim in [2019] EWHC 371 (Admin). He found that the authority used £15 for families and £5 for single people as starting points, but that its policy was flexible and permitted reduced or nil contributions.