England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Newman)

		Royal Courts of Justice Strand London WC2 Friday 21st December, 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal to this court in respect of what was originally a decision of the London Borough of Hackney as to whether the applicant, Miss Ediri Ayiwe, should receive student support. She was told by Hackney in a letter of 10th January 2001 that she was not eligible for support, inter alia because during the three-year qualifying period immediately before her course she had been here wholly or mainly for the purposes of receiving full-time education. Miss Ayiwe says that that simply was not the case. She had moved here for the purpose of permanent residence.
2. Miss Ayiwe sought judicial review of the decision of Hackney and in those proceedings she had the benefit of being represented by counsel. The matter was considered by Newman J, who said this at paragraph 7 of his judgment:

"... I am entirely satisfied that on the facts which are not in dispute and, in particular, her attendance at the course for the whole of an academic year on a full-time basis in order to study for her GCSEs, there is a one period of a year, in the period of three years which is relied upon as a period of ordinary residence, in which the local authority were entitled to conclude that her residence here, namely her ordinary residence here for that period, had, for some part of it, been wholly or mainly for the purpose of receiving full-time education."

3. The judge then referred to the Education (Student Support) Regulations 2000 which identified that as a category that excludes eligibility for student support.
4. There were further legal submissions made to him by counsel then representing Miss Ayiwe, which I will revert to in a minute. But the essence of the case, as the judge identified, was whether it was open to the local authority to reach the conclusion that it did as to the facts of the case.
5. Miss Ayiwe does not agree with that conclusion. She has appeared before me in person today and has very courteously explained that she still contests the decision of Hackney. She says she has always been here with the object of permanent settlement or permanent residence, which is the purpose that she stated when she first entered this country. I have sought to explain to her, and I think she understands, that the purpose of the hearing before Newman J and the purpose of the hearing before me is not to revisit the actual factual argument decided by Hackney, but to consider whether it was open to Hackney for them rationally come to the conclusion that they did. It seems clear to me that it was. Recourse to the courts in these circumstances is only available in very limited circumstances, and those circumstances are not fulfilled in this case.
6. Before the judge, and in a supplementary skeleton argument which he has been good enough to provide to the court yesterday, Mr Pipi, who has acted for Miss Ayiwe during the currency of these proceedings up to this time, has sought to draw conclusions from the case in the House of Lords of R v London Borough of Barnet ex p Shah [1983] AC 309, contending (if I understand it right) that one of the appellants in that case, Mr Nilish Shah, would succeed under the new regulation because the purpose of his residence in the United Kingdom during the relevant period was settlement. I do not find it easy to follow that argument. I have looked at what the Divisional Court said in the case of Mr Nilish Shah. It seems to me that in his case, as in that of Miss Ayiwe, the question would still be one of fact, in respect of which this court cannot intervene.
7. I should also say that drawing conclusions from the 1983 case in this area is likely to be unreliable in any event, because of course the law has been changed in order to meet the criticisms that the House of Lords addressed in that case to the then state of the Student Support Regulations.
8. For all those reasons, therefore, it would not be appropriate for this case to go forward to the Court of Appeal. I do not grant permission. I am sorry for the position that Miss Ayiwe finds herself in, but I am afraid that cases of this type, except in exceptional circumstances, have to stop at the decision taken by the London Borough of Hackney.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)