RL & Ors v The London Borough of Croydon, Court of Appeal - Civil Division, April 11, 2018, [2018] EWCA Civ 726

Issuing Organization:Civil Division
Actores:RL & Ors v The London Borough of Croydon
Resolution Date:April 11, 2018
 
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Case No: C1/2016/1988

Neutral Citation Number: [2018] EWCA Civ 726

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Judge GILL Sitting As A Deputy High Court Judge

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/04/2018

Before :

LORD JUSTICE JACKSON

LORD JUSTICE UNDERHILL

and

LORD JUSTICE MOYLAN

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Between:

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Tim Buley (instructed by The Public Law Project) for the Appellant

Mark Tempest (instructed by The London Borough of Croydon) for the Respondent

Hearing date: Wednesday 24th January 2018

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JudgmentLord Justice Moylan:

Introduction

The Appellants appeal from the order for costs made on 20th April 2016 by Judge Gill sitting as a Deputy High Court Judge in the Administrative Court. The order was made following the settlement of the Appellants' judicial review claim. In substance, the judge made no order for costs

The Appellants contend that the judge should have awarded them their costs. The Respondent, the London Borough of Croydon, (``Croydon'') seek to uphold the judge's decision. At the centre of this appeal, therefore, is the question set out in R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 (para 13), namely whether the Appellants have established any of the grounds on which this court can interfere with a costs order.

I set out the background in more detail below but, in summary, there are two factual strands involved in the appeal. The first is the assessment which Croydon undertook under section 17 of the Children Act 1989 (``the 1989 Act'') which was commenced in the latter part of September 2015 and was completed on 4th November 2015. The second strand comprises the judicial review claim which the Appellants commenced on 28th October 2015. This concluded with a consent order dated 18th January 2016 after the application for permission had been refused on the papers by Garnham J but without the Appellants' renewed application being determined.

The two strands overlap because they both involved the issue of accommodation. In reality this is what the Appellants were hoping to obtain through the section 17 assessment. Also, the decision being challenged through the judicial review claim was expressed to be Croydon's ``Failure to accommodate the Claimants''.

Another feature of the background to the appeal is that, because permission was refused, the Appellants' lawyers have no entitlement to be paid by the Legal Aid Agency.

The Appellants advance two grounds of appeal:

(i) That the judge failed properly to apply the test in R (M) v Croydon London Borough Council [2012] 1 WLR 2607 as to whether the claim had in substance succeeded; and

(ii) That the judge had been wrong not to go behind Garnham J's order when that order could have been overturned on renewal and when the Appellants had ``very properly not pursued the challenge to that order ... to avoid a disproportionate use of court time and resources'' and/or the judge placed undue weight on that decision.

Background

RL is a Ghanaian national and the mother of three children aged between 6 and 12. The eldest child is a British national. The mother and the two younger children have leave to remain in the United Kingdom subject to a condition that they should have no recourse to public funds. The mother separated from the children's father in 2011. He is also a Ghanaian national but has leave to remain in the UK without any attached conditions. He lives and works in London.

The precise chronology is not entirely clear but, broadly, the relevant dates are as follows.

On 8th September 2015 RL attended a previously arranged appointment with Croydon's housing department. She told them that she and the children were facing eviction. She was informed that she was not eligible for assistance under homelessness legislation because of her immigration status. Her case was referred to another team within the council who wrote to her on 18th September 2015 advising her of the options she had for finding accommodation and also inviting her to contact the council again within 7 days if she had been unable to find accommodation and wanted to request an assessment under section 17 of the 1989 Act.

On 22nd September 2015 RL went to the council again and informed them that the family was due to be evicted on 15th October. Following this Croydon began a Child in Need assessment under section 17 on or about 30th September.

RL was seen at the council's offices on 30th September for an assessment interview when she was requested to provide documents. She was seen again on 6th October when further documents were requested. Subsequently, as part of the assessment process, a social worker visited the children's father, who was separated from the mother, on 9th October and visited the mother and the children on 12th October. The mother again went to the council's offices on 15th October. According to a letter from Croydon dated 15th October updated bank statements were still to be received.

There is a reference in the letter of 15th October to RL informing Croydon that she was unable to obtain the requested documents and would not be returning to the offices that day. The letter concluded by saying: ``It is very difficult for our team to make an informed decision regarding your children's needs if you are refusing to engage with us and provide us with all the requested documents which would enable us to conclude the child in need assessment''.

RL and the children were evicted on 15th October.

On 19th October 2015 RL's solicitors, the Public Law Project (``PLP''), sent Croydon a Pre-Action Protocol letter ``in relation to (the claimants') entitlement to support and accommodation'' from Croydon. The letter made clear that it had been sent although the solicitors did not consider that the Protocol applied because of the urgency of the situation. A response was requested by 5.00pm the next day, 20th October 2015.

The letter provided a number of documents including recent bank statements and details about the family's circumstances. The specific matter being challenged was said to be the ``failure of the Council to provide accommodation to the children together with the mother pursuant to its duties under section 17 of the'' 1989 Act. It was asserted that Croydon was acting unlawfully ``in failing to provide accommodation pending assessment'' under section 17.

Croydon's legal department replied on 20th October and ``strenuously'' objected to the approach taken ``particularly the ridiculous deadline''. It was contended that it was not ``unlawful not to accommodate your clients pending the completion of the assessment as the decision to provide accommodation is dependent upon the facts of the matter and your client's co-operation''. It was asserted that RL had not co-operated fully. The letter ended by saying: ``We further understand that the assessment will be completed by Thursday 22nd October 2015''.

By letter dated 22nd October, PLP pressed the urgency of the situation and said that, despite the indication in the letter of 20th October that the assessment would be completed by 22nd October, ``our client was told today when she attended social services yesterday that ``something has come up'' and that the assessment would not be concluded today''. Croydon were requested ``as a matter of urgency'' to give the timescale for the assessment. It was again maintained that the failure to accommodate the claimants was unlawful.

On 26th October 2015 PLP wrote saying that proceedings would be issued as soon as possible.

Judicial review proceedings were commenced on 28th October 2015. An interim order requiring the provision of accommodation was made the same day. I deal further with these proceedings below.

On 30th October Croydon sent an email indicating that they anticipated having the assessment by 3rd November.

Croydon next wrote to PLP on 3rd November stating that RL had been informed the previous day that the family would be accommodated from 4th November.

At the same time as steps were being taken in respect of the judicial review claim, Croydon was continuing to progress the section 17 assessment. There is reference to a social worker visiting the children's then home on 20th October; to the children's father providing documents on 27th October 2015; and to him being interviewed on 2nd November.

The Child in Need assessment was completed on 4th November 2015. It contained a comprehensive analysis and recommended that ``suitable temporary accommodation is provided to meet the needs of the children'', until the outcome of, what is called, the ``Change of Circumstances'' application to the Home Office (to remove the no recourse to public funds restriction). Pending the determination of that application the position would be ``reviewed regularly''. This recommendation led to Croydon deciding to provide temporary accommodation.

Judicial Review Proceedings

The Judicial Review claim was issued on behalf of RL and the children on 28th October 2015. As referred to above, the decision being challenged was the ``Failure to accommodate the Claimants''. This characterisation of the claim is repeated in the Grounds of Appeal which state that the ``costs issue arises out of a claim for judicial review challenging Croydon's failure to provide the Appellants with accommodation under section 17 of the Children Act 1989''. The interim relief sought was also the provision of accommodation. The final relief sought was a declaration that the children were in need for the purposes of the 1989 Act and an order that Croydon must draw up a plan lawfully to meet their needs.

It was asserted specifically that Croydon were behaving unlawfully: (a) by failing, in breach of section 17 of the 1989 Act, to provide accommodation for the children and RL when the children were clearly ``in need''; (b) by failing to...

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