Judicial review of service provision decisions
27.4Insofar as judicial review is used to supervise the lawfulness of decisions by public authorities about what services to offer, there is often a fundamental tension between what the claimant actually wants (better or different services) and what the Administrative Court can deliver (a review as to whether a particular decision was lawful). This can result in the claimant pushing the court to review the merits of service provision decisions and the public authority urging the court to resist such pressure. Several of the cases below illustrate this creative tension.
27.5It is trite to observe that the function of judicial review is limited to supervising the lawfulness of public conduct so that, consequently, it is no part of the function of the court to review the merits of public decisions or, even when unlawfulness has been established, to require a public authority to reconsider its decision in any particular way (unless, very exceptionally there is plainly only one conclusion that the public authority could possibly reach).
1R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 at [46]; R v Ealing LBC ex p Parkinson (1996) 8 Admin LR 281 at 287F; see also the statutory bar on substitutionary remedies, at section 31(5) of the Senior Courts Act 1981.Consistently with that, the court will almost never engage with factual disputes (in cases that do not involve EU or ECHR rights).
2R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, [2007] HLR 34; R v Board of Visitors of Hull Prison ex p St Germain (No 2) [1979] 1 WLR 1401 at 1410H; cf R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin); R (A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557.27.6Having said that, many judges do have regard to the underlying substantive merits of judicial review applications and may subject the lawfulness of public decision-making to more intense scrutiny, in cases where the decision seems aberrant, in particular the more that fundamental rights are involved.
3R (KM) v Cambridgeshire CC [2012] UKSC 23, (2012) 15 CCLR 374 at para 36.There are, however, no hard and fast rules: sometimes, the right approach is to apply the law in favour of a claimant no matter how unappealing the underlying merits; other times, the right course is to maintain the law as it is and resist deflecting it so as to remedy a hard case.
27.7The assumption of judicial review is that a public authority that has erred in public law has failed to see the question it has to decide clearly and in full and that, should it do so, there is a real possibility that it may reach a different decision. Judicial review has been used, very often successfully, to:
•require a local authority that has failed to complete a community care assessment to carry one out;
4See, for example, R (Patrick) v Newham LBC (2001) 4 CCLR 48. •secure emergency provision pending the completion of an assessment;
5R (AA) v Lambeth LBC [2001] EWHC 741 (Admin), (2002) 5 CCLR 36; R (Alloway) v Bromley LBC [2004] EWHC 2108 (Admin), (2005) 8 CCLR 61. •quash an unlawful assessment or re-assessment and require a local authority to undertake the process again;
6See, for example, R v Bristol CC ex p Penfold (1997–8) 1 CCLR 315. •challenge decisions about service provision, and changes to service provision;
7See, for example, R v Gloucestershire CC ex p Barry [1997] AC 584, (1997–8) 1 CCLR 7; R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341; R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] 15 CCLR 374. •challenge budgetary and other policy changes;
8See, for example, R (Hunt) v North Somerset Council [2013] EWCA Civ 1320, (2013) 16 CCLR 502 and then at [2015] UKSC 51. •achieve accommodation and support for persons subject to immigration control excluded from mainstream benefits;
9See, for example, R (M) v Slough BC [2008] UKHL 52, (2008) 11 CCLR 733; R (Clue) v Birmingham CC [2010] EWCA Civ 460, (2010) 13 CCLR 276; R (SL) v Westminster CC [2013] UKSC 27, (2013) 16 CCLR 161. •contest local authority charges for service provision.
10See, for example, in relation to residential accommodation, R (Beeson) v Dorset CC [2002] EWCA Civ 1812, (2003) 6 CCLR 5. 27.8One key feature of judicial review, which may become more important in cases under the Care Act 2014, is that it is a remedy of last resort and cannot be used where there is an adequate alternative remedy. A complaints/ADR (alternative dispute resolution) process will usually be an adequate alternative remedy where the complaint raises matters of fact and judgment.
11R (F, J, S, R) v Wirral BC [2009] EWHC 1626 (Admin), (2009) 12 CCLR 452.A complaints/ADR process can even be an adequate alternative remedy when a case raises some issues of pure law – since the public authority might change its mind about the law in the course of the complaints/ADR process or, nonetheless, change its underlying decision.
12R (Cowl) v Plymouth CC [2001] EWCA Civ 1935, (2002) 2 CCLR 42.27.9The government has created a power in section 72 of the Care Act 2014 to introduce an appeals procedure by way of regulations, in relation to all or many decisions made under Part 1 of the Care Act 2014. The government is currently undertaking a consultation about this.
13www.gov.uk/government/uploads/system/uploads/attachment_data/file/400757/2903104_Care_Act_Consultation_Accessible_All.pdf.If an appeals system is introduced then, depending of course on its scope, it is likely that judicial review will only be appropriate after the appeals process has been completed except, possibly, in some types of case where urgent relief is needed or the challenge includes a challenge to a macro policy. In other words, in future, judicial review challenges are likely usually to be focussing on the outcome of an appeal under a new appeals process.
27.10In addition, the Senior Courts Act 1981 now provides, at section 31(2A), that the High Court must refuse to grant relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief.
14The Bingham Centre for the Rule of Law, the Public Law Project and Justice have suggested that this duty will only arise exceptionally: Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4 at www.biicl.org/documents/767_judicial_review_and_the_rule_of_law_-_final_for_web_19_oct_2015.pdf. However, in R (Hawke) v Secretary of State for Justice [2015] EWHC 3599 (Admin), as a result of section 31(2A) of the Senior Courts Act 1981 Holman J declined to grant a declaration that the Secretary of State for Justice was in breach of the PSED (under section 149 of the Equality Act 2010); instead, he indicated that his judgment was a ‘declaratory judgment’, following the example of Blake J in Logan v Havering LBC [2015] EWHC 3193 (Admin). See also R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 (Admin) at para 106 (sometimes a witness statement is required from the public authority to establish that the outcome would not have been substantially different) and R (HA) v The Governing Body of Hampstead School [2016] EWHC 278 (Admin) at para 33 (these provisions may relate simply to ‘technical flaws’). In R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), Laing J found it hard to be satisfied that there was no chance of the council reaching a different decision on a reconsideration in case involving highly vulnerable children and, in any event, considered that in such a case there was an exceptional public interest in granting relief.