Gladwys Fertre v Vale of White Horse District Council

Permission to appeal in an academic case remains discretionary even where the second-appeal threshold is met. Applying Hutcheson v Popdog Ltd [2012] 1 WLR 782, the court considered general importance, protection of the respondent from costs or other prejudice, and whether both sides could be fully heard. A present practical benefit is unnecessary. A contingent benefit based on a real, non-fanciful risk of future homelessness can prevent an appeal being academic. Where interveners can present the opposing case, permission may be granted subject to conditions protecting an unwilling respondent from adverse costs. An earlier decision on academicity does not preclude reconsideration where the procedural question and factual circumstances have changed.

The appellant, a French national with pre-settled status, challenged the refusal of housing assistance under Part 7 of the Housing Act 1996. Jay J held that she was not eligible and dismissed her application. She accepted that she was neither homeless nor threatened with homelessness, and her application for permission to appeal was therefore said to be academic.

At an earlier stage, Constable J had held that the appeal was not academic, or alternatively that it should be heard. Subsequent changes to the appellant’s accommodation and mental-health circumstances led the Court of Appeal to reconsider the issue when deciding whether to grant permission for a second appeal. The central question was whether the appellant retained a sufficient contingent benefit or legitimate interest to justify permission.

Permission granted. Lord Justice Lewison granted permission to appeal and permission for the proposed interveners to intervene. The appellant was not entitled to seek an order requiring the respondent to pay the costs of the appeal or the hearing below.

1. The discretion to grant permission to appeal remained separate from the second-appeal test under the Civil Procedure Rules 1998, r 52.7. Under Hutcheson v Popdog Ltd [2012] 1 WLR 782, an academic appeal should generally proceed only where it raises a point of general importance, the respondent agrees or is protected against costs and other prejudice, and both sides’ arguments can be fully and properly presented.
2. The proposed appeal was not academic. Although the appellant was not then homeless or threatened with homelessness, success could give her an enduring determination of eligibility for assistance under Part 7 of the Housing Act 1996. That benefit was contingent, but real. The risk of future homelessness was not fanciful, given the temporary and potentially unsuitable nature of her accommodation and her mental-health circumstances. A present benefit was not required.
3. The respondent’s submission that the Part 7 inquiry involved several stages did not alter the conclusion. The actual decision under section 184 had turned entirely on eligibility, which was the sole issue in the proposed appeal. The point of general importance criterion was therefore satisfied.
4. The earlier decision by Constable J did not prevent reconsideration. That decision concerned strike-out under r 52.18, whereas the present application concerned permission for a second appeal. The factual position had also changed, the alleged legal error had since been determined against the appellant, and the appellate stages were different. Authorities concerning academic appeals after permission had already been granted were therefore not determinative.
5. The opposing arguments could be presented by interveners, so the respondent need not bear the burden of conducting the appeal. The respondent could withdraw from participation, and the permission order protected it from an adverse costs order as an unwilling respondent. Permission was granted on those conditions.

1. Court of Appeal (Civil Division). On 19 November 2024, Lord Justice Lewison granted permission to appeal, subject to a condition that the respondent would not be liable for the appellant’s costs of the appeal or the hearing below. Permission to intervene was also granted.
2. High Court of Justice (King’s Bench Division), Constable J. On 22 May 2024, the court declined to strike out the appeal under the Civil Procedure Rules 1998, r 52.18, holding that it was not academic and alternatively that it should be heard.
3. High Court of Justice (King’s Bench Division), Jay J. The court held that the appellant was not eligible for assistance under Part 7 of the Housing Act 1996 and dismissed her application.