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Court of Appeal rules as "academic" proceedings on discretionary housing payments and contributions

The Court of Appeal had dismissed as academic a case brought against the London Borough of Islington over its discretionary housing payments (DHP) policy and a requirement for a claimant to make a contribution to a shortfall in rent.

Lady Justice Simler ruled that there was no longer any purpose in the case since it concerned facts specific to the circumstances of Zahia Rehoune, which had changed since it began.

Nothing in it merited using the exception where courts may determine an academic case because of some wider significance, she said.

Ms Rehoune, a lone parent of three young children, had had her benefits reduced under s96 of the Welfare Reform Act 2012 and s13 of the Welfare Reform and Work Act 2016 to the point where her total benefit entitlement, including housing benefit, was £442.31 per week, making her rent of £405 a week unaffordable.

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Islington agreed to pay a DHP but required Ms Rehoune to pay £15 per week towards that shortfall out of her benefit income.

Her lawyers challenged this but before any review could be conducted, she began an action for judicial review, challenging as unlawful what Ms Rehoune described as the blanket policy requiring DHP recipients to make the weekly £15 payment.

Islington said it expected those awarded DHP to contribute to their rent but said there was no blanket policy as contributions were individually considered.

Nicklin J dismissed her claim for judicial review, holding the policy was lawful because it was not inflexible and indeed one-third of applicants were assessed at a nil contribution.

Ms Rehoune appealed on the grounds that:

  1. Nicklin J failed and refused to determine the alternative bases on which the policy was challenged as unlawful;
  2. The judge was wrong to conclude that the unpublished policy was not unlawful;
  3. The policy was unlawful because of Islington’s failure to have regard to the impact of welfare reform and its obligations under the Children Act 2004 and discriminated against women on grounds of their sex.

After that judgment, Ms Rehoune had moved to permanent local authority accommodation and a disability living allowance awarded for her son had in any event removed the cap on her housing benefit.

In Rehoune v London Borough of Islington [2019] EWCA Civ 2142 the judge said these changes rendered the appeal “entirely academic”. She was asked though to rule on “important points of wider significance”.

Simler J said: “I do not consider this to be a case where the discretion to continue to hear this appeal…should be exercised notwithstanding that the appeal is academic.

“This is not a case where any discrete question of statutory construction or point of law arises for decision. Rather, the issue that arises in relation to the lawfulness of the transparency of the policy is fact and context specific.”

She would have accepted that an issue of wider importance existed over Islington’s “apparent lack of transparency of the contribution policy” but said that since this had not been pleaded Islington had had no opportunity fully to investigate and consider this point.

The appeal was dismissed with Ms Rehoune told to pay Islington’s costs as “the appeal was persisted in on all three grounds right up to the hearing, notwithstanding that it had become academic”.

Mark Smulian

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