WHEN A LITIGANT HAS “FAILED IN ITS DUTY AT EVERY POINT”: COUNCIL FOUND AT FAULT AND IN DEFAULT

In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin)  Mr David Lock QC (sitting as a Deputy High Court Judge) commented on the failure of the defendant council to comply with the obligations placed upon it as litigant in judicial review proceedings. The defendant needed relief from sanctions if it were to be able to take part in the proceedings.  This is an important reminder of the duty of public bodies in judicial review proceedings. Also it shows that judicial review proceedings cannot be “bought off” by settling a single case.

 

“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”

 

THE CASE

The claimant had an adult disabled child.  She was on the local authority housing waiting list and, after a long wait, near the top of the list.  However all her “bids” for housing were “skipped”, because of the way the scheme operated, which gave priority to those with minor children and because she was not permitted to bid for properties that were not adapted to meet her daughter’s needs. This put here in a “catch-22” situation.

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.”

 

THE JUDICIAL REVIEW PROCEEDINGS

The claimant brought judicial review proceedings. The judge was critical of the defendant’s response to those proceedings.   A public body that is a defendant to such proceedings has a particular duty to the court.

    1. This is an application for judicial review brought by the First Claimant, Mrs Habibo Nur (“Mrs Nur“), and by the Second Claimant, Ms Zakiya Abdulahi (“Zakiya“) against Birmingham City Council (“the Council“) arising out of decisions which were made by the Council in relation to the allocation of rented housing to the Claimants. Unfortunately, this case is an object lesson in how a public body should not respond to public law proceedings. 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, Mr Manning, 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.
    2. I do not underestimate the difficulties faced by local authorities, such as the Council, 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. 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. Whilst I am 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 is far outside any legitimate area of flexibility.
    3. 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.”
    1. It is 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.”
  1. 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.

 

NO ACKNOWLEDGEMENT OF SERVICE MEANS THAT DENTON PRINCIPLES APPLIED

The defendant argued that it was entitled to take part in the proceedings despite the fact that it had not filed an acknowledgment of service or grounds explaining its position.
    1. CPR 54.8 provides that any person served with the claim form who wishes to take part in the judicial review must file an Acknowledgement of Service within 21 days. Where a person served with judicial review proceedings wishes to contest the claim, that acknowledgement of service is required to set out a summary of the grounds relied upon by that person for doing so. The Council failed to serve an Acknowledgement of Service or provide Summary Grounds to explain its position to the Court.
    2. Despite the absence of any response by the Council, permission was refused by HHJ Worster, sitting as a High Court Judge, in a decision dated 16 September 2019. The essential reason given by the Judge for his decision was expressed at paragraphs (v) and (vi) as follows:
“(v) I assume that following the refusal of interim relief, the property has been let as D intended. In those circumstances no useful purpose is served by pursuing this claim. Considering whether or not D’s policy is flawed as C suggests would be an academic exercise if (as seems probable) the rights of the family to whom this property have been let effectively prevent the Court from making the mandatory order sought.
(vi) if I wrong in the assumption I make above, C may apply to the Court on paper for an order varying or setting aside this order”
    1. Unsurprisingly, Mrs Nur’s solicitors applied to renew their application pursuant to CPR 54.12. Mrs Nur’s 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”.
    2. Mrs Nur’s application for renewed permission came before Mr Justice Swift on 6 February 2020. It was supported by renewed grounds and a detailed Skeleton Argument.
    3. 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.
    4. Permission was granted to bring this claim on all grounds by Mr Justice Swift. The Claimant was given permission to apply to amend her grounds and the Council were required to serve Detailed Grounds and evidence 35 days from the date of any order granting the Claimant permission to amend. Amended grounds were duly served and permission was given. The amended grounds developed the case to be advanced by the Claimant but did not substantially change it. 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.
    5. The Council failed to comply with the terms of that order. No Detailed Grounds or evidence were served. Meanwhile, Mrs Nur’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 Mrs Nur. In a witness statement that was subsequently prepared, an officer of the Council, Ms Vicki Pumphrey, explained at §30 that the offer of the property had been made to Mrs Nur in order to avoid costly litigation. That appears to confirm that at least one of the reasons that Mrs Nur 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.
    6. 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”
    1. 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 Mrs Nur 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. Mrs Nur 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. I therefore consider 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 Mrs Nur.
    2. The Claimant’s solicitors prepared bundles for the hearing and served a Skeleton Argument. Last week, when this case was allocated to me, I made enquiries as to whether the Council were intending to continue to defend the proceedings given that no Acknowledgement of Service had been served and no evidence had been provided.
    3. On Friday 11 December the Council made an application to serve Detailed Grounds of Resistance and to serve evidence. There are 3 things about this application which are noteworthy. First, it contained no explanation as to why the Council had acted in breach of the terms of the orders made by this Court requiring it to file Detailed Grounds of Resistance and evidence on earlier dates, and contained no apology for failing to do so. Secondly, this application continued to advance the misconceived submission that the allocation of a property to Mrs Nur had rendered this claim academic. Thirdly, 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). The Council thus sought permission to file Detailed Grounds of Resistance a few days before trial and to rely upon evidence in the witness statement of Ms Pumphrey which sought to explain the Council’s perspective, without giving the Claimant any real opportunity to be able to respond to that evidence.
    4. In my judgment, this application was singularly ill judged. Judicial review proceedings are proceedings to which the rules under Part 8 CPR apply, as modified by CPR 54: see CPR 54.1(e). CPR 54.9 provides:
“(1) Where a person served with the claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he –
(a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but
(b) provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of –

(i) detailed grounds for contesting the claim or supporting it on additional grounds; and

(ii) any written evidence,

may take part in the hearing of the judicial review
(2) Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs.
(3) Rule 8.4 does not apply”
    1. Rule 54.9 defines the conditions which must be met by a party which fails to file an Acknowledgement of Service but nonetheless wishes to “take part” in a judicial review hearing. Rule 54.9(1)(a) refers to the position at a permission hearing and rule 54.1(b) refers to the position at a “hearing of the judicial review”. Accordingly, a party which fails to file an Acknowledgement of Service is still entitled to take part in a final judicial review hearing provided that that party complies with directions made by the Court concerning the filing of Detailed Grounds and evidence. There is no express power given to the Court to allow a party to “take part” in a judicial review hearing where that party acts in breach of either CPR 54.14 or in breach of the terms of a court order requiring it to file Detailed Grounds and evidence. I accept that the Court’s general management powers under CPR 3.1 would allow the Court to permit a party to appear by counsel in a judicial review notwithstanding that that party had failed to comply with the terms of CPR 54.9. Nonetheless, the absence of any express power to do so in CPR 54.9 suggest to me that the Court should be cautious before doing so.
    2. In R (XY) v Haringey LBC the Deputy Judge was faced with a situation where a local authority had filed an Acknowledgement of Service setting out its response to the judicial review challenge but had failed to file Detailed Grounds or evidence within the 35 days provided for within CPR 54.14 following the grant of permission. Rule 54.14 is not concerned with the right of a party to “take part” in judicial review proceedings but is concerned with the right of a party who has established a right to take part by serving an Acknowledgement of Service but also wishes to set out a case to contest (or support) the claim. It seems to me that CPR 54.9 involves the first stage of a party’s involvement in a judicial review case, namely setting the conditions which have to be satisfied in order to permit a party to “take part” in the case. Once a party has established the right to take part in the case, CPR 54.14 comes into play because it defines the terms upon which a party which is taking part can either contest the claimant or can advance other grounds supporting it. Accordingly, CPR 54.14 only becomes relevant to a party which has the right to take part in a case by complying with CPR 54.9. That position appeared to have been recognised by the Deputy Judge in XY at §42 because he looked at the interaction of CPR 54.9 and CPR 54.14 and said:
“The CPR therefore recognises that there are specific consequences for the failure to an acknowledgement of service”
    1. Accordingly, in my judgment, 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.
    2. Secondly, this application was incorrect in the sense that it suggested that Mrs Nur’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. 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.
    3. Thirdly, the evidence that the Council was proposing to rely upon to seek to respond to this challenge entirely failed to engage with the duty of candour resting on every public body against whom judicial review proceedings are brought. Paragraph 3 of the Allocation Scheme provided as follows:
“The Council’s Allocation Scheme takes into account the Allocation of Accommodation Code of Guidance for Housing Authorities 2012 and the 2013 guidance: Providing social housing for local people, which replaced all previous statutory guidance on social housing allocations. The Allocation Scheme is drafted and framed to ensure that it is compatible with the Council’s equality duties including the Equality Act 2010 and has been subject to an equalities analysis”
    1. The Council sought permission to rely upon a witness statement from Ms Vicki Pumphrey, a Senior Service Manager in the Neighbourhoods Directorate of the Council. This witness statement did not disclose any of the documents which explained the decision-making process undertaken by the Council leading up to the decision to adopt the Allocation Scheme in November 2018. Notwithstanding the fact that the challenge was based on an alleged breach of the PSED, the evidence did not disclose the equalities analysis prepared by the Council in advance of the adoption of the Allocation Scheme.
    2. The evidence explained that the Council’s approach was to give priority for houses to families with children under the age of 18 over households with no children under the age of 18. The evidence did not explain whether a situation ever arose where there were no families with children on the relevant waiting list who would have been accorded priority over a family with a disabled adult. Accordingly, it was impossible to tell whether the factual situation set out by the Council in its letter of 7 August 2020 was ever likely to arise in practice or had ever arisen in practice.
    3. Further, the witness statement provided no evidence to explain what proportion of 3 and 4 bedroomed properties were “houses” and what proportion were other types of property. It was thus impossible from this evidence to tell whether the de facto rule which gave priority to families with children for houses affected 50% of the available housing, 75% of the available housing or all of the available housing.
    4. This evidence provided no justification to meet the apparent “catch 22” situation faced by Mrs Nur in that her perspective every property she bid for was either deemed to be unsuitable because it was too small, unsuitable because it was not adapted or adaptable to meet her daughter’s disabilities or was removed from her because it was a “house”. It was unclear from this evidence whether there were any properties Mrs Nur could have bid for successfully and, if so, what proportion of available properties would have been open to her.
    5. Ms Pumphrey sought to advance a rationale at paragraph 10 of her witness statement concerning the reasons why the Council gave priority to families with children over families with disabled adults. However this evidence was not the evidence of the person who made the decision to adopt the policy and Ms Pumphrey did not refer to any document indicating any form of reasoning which had led decision-makers at the Council to adopt this policy. Any proper examination of the compliance by a public body with the PSED duty must demonstrate how the potentially discriminatory effects of policy decisions have been considered by effective decision makers at a public body. This evidence has not been led by the Council.
    6. The importance of evidence from decision makers in a PSED case was emphasised by HHJ Mackie QC sitting as a High Court Judge in R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) (2007) 11 CCLR 187. The Judge said of duties under the Disability Discrimination Act 1995 which were in a like form:
“These are important duties nonetheless including the need to promote equality of opportunity and to take account of disabilities even where that involves treating the disabled more favourably than others. There is no evidence that this legal duty and its implications were drawn to the attention of the decision-takers who should have been informed not just of the disabled as an issue but of the particular obligations which the law imposes. It was not enough to refer obliquely in the attached summary to ‘ potential conflict with the DDA ‘ – this would not give a busy councillor any idea of the serious duties imposed upon the Council by the Act.
It is important that Councillors should be aware of the special duties the Council owes to the disabled before they take decision. It is not enough to accept that the Council has a good disability record and assume that somehow the message would have got across. An important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance not only of respecting rights but also of doing so visibly and clearly by recording the fact”
    1. That approach was also emphasised in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) where the Court of Appeal explained that:
“… the “due regard” duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind”
    1. In those circumstances, the Claimant’s counsel Mr Nabi urged me to proceed with the hearing and to make findings concerning the discriminatory effect of the Council’s policy. He referred me to the decision of HHJ Walden-Smith (sitting as a Judge of the High Court) in R (AT) v Secretary of State for the Home Department [2017] EWHC 3210 which considered the appropriate approach in a case where a public body has entirely failed to engage with judicial review proceedings prior to the date of the trial. The Judge referred to the observations of Mr Michael Fordham QC, now Mr Justice Fordham, in R (Ademiluyi) c SSHD [2017] EWHC 935 (Admin) who said:

“It may well be that a judicial review court is likely in most cases to feel that it is in an invidious position and to be extremely reluctant to decide public law issues, knowingly shutting out assistance that could be provided by the executive. Apart from anything else, that undermines the court’s ability to get to the right answer. On the other hand, it cannot be the case that the Secretary of State can hold a gun to the head of the court, so far as default with the rules is concerned, knowing that there can be no sanction which goes to the way in which the legal merits of the case are resolved by the court”

  1. It seems to me that this properly describes the position in which the Council’s conduct has left the court in this particular case. In AT the Court declined a very late application by the Secretary of State to serve Detailed Grounds and evidence in order to support its claim concerning the lawfulness of immigration decisions taken in respect of the Claimant. The Court also awarded costs against the Secretary of State on an indemnity basis.
  2. If this case was solely concerned with a decision-making process which affected an individual, I would have had no hesitation in following the course laid down in AT. However, the Allocation Scheme affects the rights of a large number of different groups of individuals in Birmingham, many of whom have protected characteristics. Any decision by this Court concerning the discriminatory effects of the Allocation Scheme will thus have consequences for children, disabled people and potentially other groups with protected characteristics. The issues raised by the Claimant are important, as the Council has belatedly recognised. Accordingly, because it is important for the court to be informed of a proper factual basis before making decisions which have the potential to affect different groups of vulnerable individuals, I declined to proceed with the discrimination claims in this case notwithstanding the Court’s total disapproval of the way in which the Council has conducted this case. Accordingly, I propose 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. I will hear counsel concerning the terms of those directions.