Judge rules claimant has capacity to bring claim for judicial review of decision by council not to award her 'medical points' under its Housing Allocation Scheme

The High Court has found that resident BL has capacity to bring a case against the London Borough of Islington as a litigant in person despite a doctor’s report to the contrary.

In BL, R (On the Application Of) v London Borough of Islington [2021] EWHC 3044 (Admin) Andrew Thomas QC sitting as a deputy High Court judge, said BL could seek judicial review of the council’s decision not to award her 'medical points' under its housing allocation scheme.

BL has been diagnosed with autistic spectrum disorder, emotionally unstable personality disorder, anxiety and depression.

It had been “entirely right and proper” for Islington to raise the issue of BL’s capacity given its knowledge of her medical history and events in the previous county court case, Judge Thomas said.

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Although three judges had decided on papers that BL lacked capacity, Judge Thomas said he had had the benefit of meeting her.

He said: “Until this hearing the orders made by the Administrative Court have all been based on the understanding that the County Court had found that the claimant lacked capacity to conduct court proceedings. It transpires that the contrary is true.”

BL said she had no-one available who could act as a litigation friend, but even with this disadvantage, the judge found  he was "satisfied that she has capacity to conduct the present claim”.

He considered a report by BL's general practitioner, which found she did not have capacity, but noted “the GP report does not address appropriate adjustments [in court].

“The judges and staff of the Administrative Court have considerable experience in dealing with vulnerable participants, including cases where they act as litigants in person.

“The court is familiar with the need to make adjustments to ensure that proceedings are taken at a pace which a vulnerable participant is able to follow and to explain information to ensure their understanding.”

BL had needed some assistance but had been able to respond to all his questions, the judge said.

Judge Thomas said a judge would now consider on the papers whether her claim contained an arguable ground for judicial review with a reasonable prospect of success.

He did not comment on the merits of the underlying claim but warned BL “that by issuing and continuing a claim for judicial review she is at risk of having to pay the defendant's legal costs.

“Whether or not permission is granted on the papers, she should consider carefully the financial risk of continuing her claim.”

Mark Smulian

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