Deputy High Court judge criticises council over handling of judicial review challenge to housing allocation scheme

A recent judicial review case over decisions made by a council in relation to the allocation of rented housing was “an object lesson in how a public body should not respond to public law proceedings”, a Deputy High Court judge has said.

In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin) David Lock QC said: “The council have failed properly to engage in the proceedings, appear to have misunderstood the nature of public law proceedings and, when it finally started to engage with the issues at a very late date, completely misunderstood the duties on it as a public body.

“Further, when responding to the single issue on which I was able to hear argument today, counsel for the council..... found himself in the near impossible position of being required to advance submissions on the construction of the council's policy which were plainly in conflict with how his own solicitors had explained how they believe the policy operated.”

The judge said he did not underestimate the difficulties faced by local authorities, such as Birmingham, in the past year. “The pandemic has not only caused considerable disruption in the way that any large organisation functions but has also added additional pressures on the council as a result of increasing numbers of people coming to the council seeking public services as a result of the economic effects of the pandemic.”

He added: “Balancing all of the conflicting demands from a limited staff base, where that base has been affected by those who are off work due to Covid-19 or are working remotely, has placed considerable stresses on anyone working in local government. Those difficulties suggest that the Court should be sympathetic to a local authority which fails to respond to proceedings as promptly or as comprehensively as would be usually expected.”

However, Judge Lock said that whilst he was mindful of the need to give an appropriate degree of latitude to any public body in the present circumstances, the approach taken by the council in this case was “far outside any legitimate area of flexibility”.

He noted that the duty on public bodies against whom judicial review proceedings are brought is set out at paragraph 14.1.5 of the Administrative Court Guide as follows:

"Public authorities have a duty of candour and co-operation with the Court and must draw the Court's attention to relevant matters. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the Court in ensuring that these high duties are fulfilled. The Court will expect public authorities to comply with the duty of candour without being reminded of it – see R (Citizens UK) v The Secretary of State for the Home Department [2018] EWCA Civ 1812. Public authorities must provide full explanations of all facts relevant to the issues, and where necessary identify the significance of a document or fact. The public authority's duty of candour has been recognised as applicable at the permission stage and applicable to interested parties."

The judge said it was also important to note the observations of Lord Walker in Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] UKPC 6 who said at §86:

"It is now clear that proceedings for judicial review should not be conducted in the same manner as hard-fought commercial litigation. A respondent authority owes a duty to the court to cooperate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings."

The Deputy High Court judge said: “In this case, the council has failed in that duty at every point, up to and including the application which was made at the end of last week for permission to rely upon witness evidence and to file and serve Detailed Grounds of Resistance. There have been a series of lamentable failures in the conduct of this litigation on behalf of the council and, for the reasons I will set out below, it has left both the claimant and the Court in a near impossible position.

“Nonetheless, thanks to the sensible approach taken by counsel for both parties, some progress was possible with this claim today, albeit that other issues may need to be explored at a later date for reasons I will explain below. Nonetheless, I hope that the terms of this judgment will be drawn to the attention of those having responsibility for the operation of the Legal & Governance Department at Birmingham City Council so as to ensure that the Council fully understands its duties to the court when it is engaged in public law litigation.”

The background to the proceedings is that the first claimant lives with her three adult daughters including the second claimant, 28, who suffers from cerebral palsy and has learning difficulties.

The combination of a range of factors - all of which were introduced for entirely appropriate reasons, the judge said - meant that Mrs Nur considered that she was left in an invidious 'catch-22' position. “She was only entitled to bid for properties which met her daughter's disability needs but, whenever she did so, she found that her bid was ‘skipped’ because the property was a house and council officers considered that they were obliged to give priority to a family with children under the age of 18 in preference to a family who had a seriously disabled daughter who needed constant care but was over the age of 18.”

Judicial review proceedings were issued to challenge both the decision of the council in relation to a property in Wash Lane, South Yardley, and to seek declaratory relief in relation to the council’s Allocation Scheme.

The council failed to serve an Acknowledgment of Service or provide Summary Grounds to explain its position to the Court.

Permission though was refused by HHJ Worster, sitting as a High Court Judge, in a decision dated 16 September 2019.

The claimant's solicitors applied to renew their application. Her challenge was to the lawfulness of the Allocation Scheme operated by the council for the allocation of properties. As she had been unsuccessful in securing a tenancy of the Wash Lane property, she could only secure a property by doing so in accordance with the rules of the Allocation Scheme. If those rules were unlawful, she would have continued to face unlawful decisions being made to deny her properties. “In those circumstances, in my judgment, it was incorrect to suggest that her claim had become ‘academic’," Judge Lock said.

The application for renewed permission came before Mr Justice Swift on 6 February 2020. It was supported by renewed grounds and a detailed Skeleton Argument.

Judge Lock said that despite the fact that the council had failed to serve an Acknowledgement of Service, the council served a Skeleton Argument seeking permission from the Court under CPR 54.9(1)(a) to take part in the permission hearing.

“That Skeleton sought to defend the lawfulness of a policy which gave preference to families with children under the age of 18 when allocating houses. It did not engage with the argument that the Council had misunderstood the effect of its own policy in allocating an adapted property to somebody who did not have disabilities,” Judge Lock said.

Permission was granted to bring the claim on all grounds by Mr Justice Swift. As a result of an order made by Mr Thomas Hawarth, the council were required to serve Detailed Grounds and evidence in response to the claim within 56 days of that order, namely by 29 August 2020.

However, Birmingham failed to comply with the terms of that order. No Detailed Grounds or evidence were served.

The claimant’s efforts to secure appropriate housing for herself and her family continued. In September 2020, the council agreed to make an exception to its existing policy by letting a property to the claimant.

In a witness statement that was subsequently prepared, an officer of the council explained that the offer of the property had been made to the claimant in order to avoid costly litigation. “That appears to confirm that at least one of the reasons that [she] was able to secure a property in the months immediately before this trial was that the council made that decision in order to seek to avoid the Court being in a position to rule on the lawfulness of the council's Allocation Scheme,” Judge Lock said.

On 22 September 2020 the council's Legal & Governance Department wrote to the claimant's solicitors saying: "We confirm that your client has been made a final offer of accommodation which has been accepted. In the circumstances, we consider that the Judicial Review is now academic and look forward to receiving a draft Consent Order by return".

Judge Lock said: “This letter indicates a fundamental misunderstanding of the differences between private and public law litigation. Public law litigation seeks a review of the legality of the decisions of a public body on the request of the person with standing. In this case, permission had been granted to review the lawfulness of the council's Allocation Scheme and in particular to determine whether it was acting lawfully in preferring applicants with children over applicants with dependent disabled adults when allocating houses. That issue affected disabled people across Birmingham and was not limited to the personal circumstances of [the claimant] and her family.

“Further, the claim was being brought on her behalf by a firm of solicitors who represented a large number of vulnerable people in the Birmingham area who were affected by the Allocation Scheme. [The claimant] did not cease to have standing under CPR 54 as a result of this discretionary offer of accommodation. Further, she had an existing unresolved discrimination claim against the council.”

Judge Lock therefore considered that there was no proper basis on which the council could have considered that this claim had become "academic" as a result of a decision by a council officer to bypass the terms of the Allocation Scheme by making an offer of a house to the claimant.

The claimant's solicitors prepared bundles for the hearing and served a Skeleton Argument. The week before the hearing, when the case was allocated to him, Judge Lock made enquiries as to whether the council was intending to continue to defend the proceedings given that no Acknowledgement of Service had been served and no evidence had been provided.

On Friday 11 December the council made an application to serve Detailed Grounds of Resistance and to serve evidence.

Judge Lock said there were three things about this application which were noteworthy.

1. It contained no explanation as to why the council had acted in breach of the terms of the orders made by the Court requiring it to file Detailed Grounds of Resistance and evidence on earlier dates, and contained no apology for failing to do so.
2. The application continued to advance the “misconceived” submission that the allocation of a property to the claimant had rendered the claim academic.
3. It suggested that the council did not need to seek "relief from sanctions" in accordance with the principles set out in Mitchell v News Group Newspapers Ltd [2013] EWHC 2355 and Denton v TH White Ltd [2014] 4 Costs LR 752. That submission was made in the light of a decision by Mr Clive Sheldon QC, sitting as a Deputy Judge of the Court in R (XY) v London Borough of Haringey [2019] EWHC 2276 (Admin).

Birmingham thus sought permission to file Detailed Grounds of Resistance a few days before trial and to rely upon evidence in the witness statement of the officer which sought to explain the council's perspective, “without giving the claimant any real opportunity to be able to respond to that evidence,” the judge said.

Judge Lock said that in his judgment, this application was “singularly ill judged”.

He added that the council was “simply incorrect” to suggest that it was entitled to rely upon CPR 54.14 to file late Detailed Grounds and evidence without having, at any stage, either filed an Acknowledgement of Service or having complied with the terms of the directions order concerning the filing of detailed grounds and evidence.

The application was also incorrect in the sense that it suggested that the claimant's claim was academic because she had been allocated a property. “The council was facing an application which challenged the lawfulness of the Allocation Scheme. Permission had been given for that challenge and the fact that an exception had been made in favour of an individual who was seeking accommodation did not prevent the Court ruling on that challenge.”

Judge Lock said: “It cannot be right that public bodies can avoid legitimate examination of the lawfulness of their decision-making processes by making an exception in the case of an individual affected by that process, and then argue that the challenge to the decision-making process, which was previously applied to that individual claimant and continues to be applied to others in like circumstances, should not proceed because it is rendered 'academic' by a decision of the public body to benefit an individual claimant outside the terms of the challenged decision-making process.”

He added that the evidence that the council was proposing to rely upon to seek to respond to the challenge “entirely failed to engage with the duty of candour resting on every public body against whom judicial review proceedings are brought”.

In relation to the witness statement the judge said that evidence by a single council officer as to why she believed that the council might have operated its approach was, in his judgment, inadequate to form an evidential basis to demonstrate compliance with the public sector equality duty.

“Further, the duty of candour requires the council to make proper disclosure so that the decision-making process which led up to the adoption of a policy which had these effects can be examined by both the claimant and the Court,” he said.

The judge decided, “given the completely inadequate approach that the council had taken to the preparation of its evidence”, to decline to give permission to allow Birmingham to file and serve Detailed Grounds out of time and to rely upon the witness statement as evidence to attempt to respond to the discrimination case faced by the council.

However, because it was important for the court to be informed of a proper factual basis before making decisions which had the potential to affect different groups of vulnerable individuals, he declined to proceed with the discrimination claims in the case “notwithstanding the Court's total disapproval of the way in which the council has conducted this case”. He proposed to make directions for the future conduct of this matter so as to bring the discrimination claims back before the Court at the earliest practicable opportunity.

The judge did go on to consider ground 1 of the claimant’s case - that the council acted unlawfully in misunderstanding the effect of its own policy - as it did not concern discrimination.  He upheld this challenge and said he would make an appropriate order containing declarations that the council had misunderstood the terms of its own Allocation Scheme and had acted unlawfully in the implementation of the Allocation Scheme.