Judge finds fresh application for housing assistance did not automatically constitute abandonment of prior application that was subject to appeal

Vale of White Horse District Council (VWDC) has failed in a bid to convince the High Court to strike out an appeal against a housing application that it argued had been superseded by a further application.

The case of Gwladys Fertre had been before the court in February when it ruled that she could amend her statutory housing appeal application after she wrongly named South Oxfordshire District Council on it rather than VWDC; the two share services.

In Fertre v Vale of White Horse District Council [2024] EWHC 1234 (KB) Mr Justice Constable heard that Ms Fertre, the appellant, is a French national admitted to the UK on in November 2020 and later granted pre-settled status until 4 November 2025 after which she would become eligible for indefinite leave to remain.

In September 2021, Ms Fertre applied to go on VWDC’s housing register but the council refused on the ground that she was not eligible for allocation.

A week later, Ms Fertre applied as homeless to VWDC, which again concluded that she was not eligible for assistance. Ms Fertre unsuccessfully sought a review of that decision.

While the court was deciding on the mis-naming of South Oxfordshire issue, Ms Fertre's children were taken into Oxfordshire County Council’s care and she was compulsorily detained under Mental Health Act 1983 but discharged in January 2024 to ‘step-down’ accommodation eventually extended to 22 April 2024.

She meanwhile made a fresh application to VWDC for housing assistance because of pending eviction from her stepdown accommodation and said her self-employment in 2023 and her subsequent incapacity for work were new facts relevant to her deemed right to reside in the UK and therefore for her eligibility for housing assistance.

VWDC again decided that Ms Fertre was a person from abroad who was not eligible for housing assistance and she again asked for a review.

She then sent the council a judicial review pre-action protocol letter concerning what she saw as its failure to provide accommodation under s. 188(3).

VWDC said the effect of her 2024 homelessness application was that Ms Fertre's earlier one was ‘overtaken', - given that it was based on a factual case which no longer applied - and the council considered that it was withdrawn. It said pursuing the appeal could bring Ms Fertre no benefit, in light of her fresh application and in particular the new facts to be considered on VWDC's review.

Ms Fertre replied that success in her appeal would mean that any local authority would be required to treat her as eligible so long as she holds settled status, regardless of her economic activity or capacity to work and so the original case should still be pursued.

VWDC then issued its application to strike out the appeal under CPR 52.18 on the basis that Ms Fertre had made a fresh application which superseded the application to which the appeal related.

It said the court should not entertain an appeal against an application which has been superseded because even if the court quashed it, the local authority would not be obliged to re-take the decision.

In April 2024, Ms Fertre was granted a six-month assured shorthold tenancy of supported accommodation and withdrew the 2024 application as she was no longer homeless.

Constable J said he had to decide had Ms Fertre abandoned her appeal and did the Court lose power to determine a pending s. 204 appeal if the respondent entertains a fresh application for housing assistance or the appellant accepts that they are not presently homeless or the respondent determines under s. 202 that the appellant is not homeless.

He also had to determine whether Ms Fertre was abusing the court's process by maintaining the appeal, and whether there was a power to strike out based upon section 31(2A) of the Senior Courts Act 1981.

The judge said VWDC contended that withdrawal of the homelessness application must be taken to mean Ms Fertre had also abandoned her appeal in respect of the eligibility decision.

“There is no suggestion that Ms Fertre has in fact communicated any such abandonment explicitly,” Constable J said.

“For what it is worth, any such contention would be incorrect. For example, the correspondence of 9 April 2024, following the 2024 homelessness application, made explicit reference to the effect of succeeding in the ongoing appeal. In withdrawing the 2024 homelessness application, no suggestion was made that the appeal was being abandoned.”

VWDC argued a person can only have one application to a local authority at any one time, and so the court cannot entertain the appeal against a decision which no longer regulates the relationship between it and Ms Fertre.

Constable J said: “In my judgment, the mere fact of making a fresh application does not, automatically or impliedly, constitute the abandonment of a prior application subject to an extant appeal.

“It might be that the effect of a successful fresh application renders the appeal pointless, and liable to be struck out as academic…but it cannot, without some clear expression of intention or unequivocal conduct, amount to an abandonment of the appeal on the part of an appellant.”

VWDC contended that it was an abuse of the court's process to seek to establish by this appeal that she was eligible in 2022, whilst at the same time ceasing to assert that she is eligible in 2024.

“This plainly misstates Ms Fertre's position,”the judge said. “Ms Fertre has not ceased to assert that she was 'eligible' in 2022. Indeed, Ms Fertre is not ceasing to assert that she remains eligible…she merely accepts that presently she is no longer homeless. This change of circumstances does not of itself render the appeal abusive.”

Constable J also rejected the argument that the matter had become academic. He explained: “I am entirely satisfied that Ms Fertre has a strong and legitimate ongoing interest in the resolution of the appeal.”

He said the risk that Ms Fertre is made homeless again “is not fanciful” as her present status is the first time she has been in this situation since 2021 and her tenancy was only for six months.

Constable J said the point at issue was “of considerable public importance” as was illustrated by three intervener applications.

These were from the Secretary of State for Levelling Up, Housing and Communities, the3Million - which describes the issue as one potentially affecting a large cohort of European Union citizens - and the Independent Monitoring Authority, which said the case as being “of significant public importance and they may have considerable implications for other cases and situations, beyond this appeal”.

Mark Smulian