8.63R (B) v Lambeth LBC [2006] EWHC 639 (Admin), (2006) 9 CCLR 239
The function of judicial review is to pronounce upon the lawfulness or otherwise of public decision-making, not to investigate its merits
Facts: the claimant, a 15-year-old girl, brought judicial review proceedings against Lambeth after she became homeless, alleging that Lambeth had failed adequately to assess her needs or make suitable provision. After a number of hearings, she withdrew those proceedings without permission to apply for judicial review having been granted. Lambeth applied for costs on the grounds that the judicial review grounds had failed to identify clearly any error of law and that, despite repeated requests, that had not been done until the last moment.
Judgment: Munby J held that there would be no order for costs, but practitioners should be aware that costs and/or wasted costs might well be awarded in future when a judicial review application failed properly to identify any alleged errors of law: the whole of paragraphs 26–36 of the judgment, in particular, contain salutary advice to practitioners. These passages commence thus:
26. This is yet another case exemplifying problems about which I have had to complain on too many occasions already. As I said in R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin) at paragraphs [30]–[31]:
‘[30] The present litigation exemplifies a certain type of judicial review case which experience suggests can too often end up following a less than desirable course: I have in mind community care, housing and other cases involving either children or vulnerable adults, especially those where, as here, the first task of the local or other public authority is the preparation of an assessment.[31] This is not the first time that I have felt impelled to express my unease about this particular type of litigation: see R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, at paras [156]–[166], and CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paras [217]–[219]. There is, I think, a problem here that needs to be addressed. Too often in my experience inadequate thought is given to what precisely the court is being asked or can properly be asked to do.’
27. I then went on to set out what I referred to as a few basic principles, starting with some observations on the proper function of the court in a case such as this:
‘[32] What the claimants here seek to challenge are decisions taken by the County Council in pursuance of the statutory powers and duties conferred on it by Part III of the Act. So I am here concerned with an area of decision-making where Parliament has chosen to confer the relevant power on the County Council: not on the court or anyone else. It follows that we are here within the realm of public law, not private law. It likewise follows that the primary decision maker is the County Council and not the court. The court’s function in this type of dispute is essentially one of review – review of the County Council’s decision, whatever it may be – rather than of primary decision making. It is not the function of the court itself to come to a decision on the merits. The court is not concerned to come to its own assessment of what is in these children’s best interests. The court is concerned only to review the County Council’s decisions, and that is not a review of the merits of the County Council’s decisions but a review by reference to public law criteria: see A v A Health Authority, in re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, and CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 1 FCR 577, at paras [20]–[32]. Just as I pointed out in R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, at para [161], that it was the function of the local authority and not the court to make and draw up the assessments that were there in issue, so too in the present case it is for the County Council and not the court to make the initial and core assessments of these children.[33] Now this has two important corollaries. Although I am, in a sense, concerned with the future welfare of very vulnerable children, I am not exercising a ‘best interests’ or ‘welfare’ jurisdiction, nor is it any part of my functions to monitor, regulate or police the performance by the County Council of its statutory functions on a continuing basis. A judge of the Family Division exercising the wardship jurisdiction has a continuing responsibility for the day to day life and welfare of the ward, exemplified by the principle that no important or major step in the life of a ward of court can be taken without the prior consent of the court: see Kelly v British Broadcasting Corpn [2001] Fam 59 at p75. The function of the Administrative Court is quite different: it is, as it is put in CPR Part 54.1(2)(a), to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. In other words, the Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities: see in the context of community care R v Mayor and Burgesses of the London Borough of Hackney ex p S (unreported, 13 October 2000) at paras [8] and [11] and R v Mayor and Burgesses of the London Borough of Hackney ex p S (No 2) [2001] EWHC 228 (Admin) at para [4].
Comment: this really speaks for itself and is just as applicable to cases involving vulnerable adults as it is to cases involving children. Not only is it illegitimate to use the judicial review process to persuade the court to micro-manage a public authority’s decision-making process, or to interfere with substantive decisions that are lawfully made, blatant attempts to do so may result in adverse or wasted costs orders.