Konodyba v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 982

This was an appeal against a decision that a homelessness applicant was not eligible for assistance. It’s been on my blogging to-do list since July, for which I can only apologise. The appeal raised some unusual and interesting issues.

We’ve met the applicant, Dr Konodyba, a couple of times before. Most recently, RBKC succeeded in getting an ex parte interim injunction discharged for material non disclosure. More importantly, in the context of this appeal, she has already been to the Court of Appeal once before. It is fair to say that that trip did not end well.

Dr K is from Poland, an A8 country (that is, one of the countries that joined the EU in 2004 – the others are Estonia, Latvia, Lithuania, Czech Republic, Slovakia, Hungary and Slovenia). It had been argued on Dr K’s behalf in a s.204 appeal in Wandsworth CC that, as the mother of a child who had been introduced into a school in the UK while she was temporarily working in the UK (but not for the 12 months required under the UK’s transitional provisions for A8 nationals), she was entitled to reside in the UK as the primary carer of that child under the Baumbaust doctrine. Dr K lost in the county court and appealed to the Court of Appeal. Rix LJ granted permission to appeal in May 2009. Shortly before the Court of Appeal hearing in June 2009, Dr K parted company with her legal team. She told the Court of Appeal that she no longer wanted to rely on the ground for which Rix LJ had granted permission to appeal, but that she wanted to rely on a different ground and sought an adjournment to prepare properly for that. The Court of Appeal refused that request and dismissed the appeal.

After that appeal Dr K moved into private rented accommodation. In due course she had to leave that accommodation, at which point she made a fresh application to RBKC. She again said that she was eligible because of Baumbaust. She also argued that she had retained worker status because she had been employed for 6 months in 2006 in a hotel and she had been self-employed for about 4 months in the same year. Her argument went that she had stopped working because she had become temporarily ill and therefore art.7 of Directive 2004/38 gave her a right to reside, such that she was eligible for assistance. The authority found that Dr K was not eligible for assistance. A review was requested, which upheld the s.184 decision. Dr K appealed to the county court. That appeal was dismissed and so she ended up in the Court of Appeal.

Judgment was given by Longmore LJ, with whom Lord Neuberger and Gross LJ agreed.

RBKC argued that it was not open to Dr K to rely on the Baumbaust point as she had expressly abandoned it before the Court of Appeal in 2009. She was therefore barred by res judicata / issue estoppel / abuse of process (take your pick). Dr K had two answers to this. First, that res judicata and issue estoppel don’t apply in public law cases and, secondly, that since the 2009 case there had been the later decisions of the ECJ in Ibrahim and Teixeira, which should be taken into account.

Longmore LJ considered that the extent to which res judicata and issue estoppel applied in public law was a vexed question, referring to part of chapter 7 of Wade & Forsyth. However, even in public law proceedings the court could stop an abuse of process and the attempt to relitigate matters which had been disposed of by an unappealed judgment was an obvious form of abuse.

Ibrahim and Teixeira did not assist either. The proper course would have been to apply for permission to appeal the 2009 decision, out of time (good luck with that).

RBKC also sought to argue that the retained worker status point could not be entertained as it could have been taken in 2009. Longmore LJ thought that Lord Bingham’s well known general approach in Johnson v Gore Wood & Co should apply in public law as well, “with the possible qualification that a public body with statutory obligations to provide, for example, housing assistance or a home from, no doubt, scarce housing stock should not be over-protected from addressing points which are truly new, even if they arise on facts which have already been subject to a determination” ([16]).

Based on that approach, it would be right for the Court of Appeal to consider the arguments on retained worker status.

The remaining critical question was, therefore, to apply the Immigration (EEA) Regulations 2006, whether Dr K was “temporarily unable to work as the result of an illness or accident”.

The review officer considered the evidence and concluded that there was no realistic prospect of Dr K being able to return to work in the “foreseeable future”. That was held to be the correct test – the review officer could not be expected to peer into the unforeseeable future. Whether Dr K was temporarily unable to work was a question of fact. The evidence had been considered by the review officer and there was no flaw in his reasoning.

Appeal dismissed.

It does seem that there is a point missed here though – while I think that the Court of Appeal must be right in relation to self-employment, so far as retained worker status is concerned I don’t think Dr K could possibly have qualified. She would have needed to have worked for 12 months under the worker registration scheme. It appears that she had not done so, so there was no status for her to retain.