Deborah Bhatti v Bury MBC
| Jurisdiction | England & Wales |
| Judge | HH Judge Pelling |
| Judgment Date | 14 October 2013 |
| Neutral Citation | [2013] EWHC 3093 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 October 2013 |
| Docket Number | CO/10171/2012 |
[2013] EWHC 3093 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT (Manchester)
Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
CO/10171/2012
The Queen on the application of
Mr Adam Fullwood (instructed by Stephensons Solicitors LLP) for the Applicant
Ms Joanne Clement (instructed by Bury Council Solicitor) for the Defendant
Hearing date: 11 th October 2013
HH Judge Pelling QC:
Introduction
This is the hearing of an application by the Claimant to reinstate Judicial Review proceedings commenced by a Judicial Review Claim Form issued as long ago as the 25 th September 2012; for permission to amend the Grounds by reference to a decision taken after the issue of the Claim Form and for permission to continue the proceedings on the basis of the amended Grounds.
Background
The Claimant suffers from a number of very serious chronic medical conditions that have resulted in her being assessed as needing community care services. The Defendant local authority ("the Council") carried out a financial assessment, it is alleged at the request of the Claimant, for the purpose of ascertaining the maximum contribution that she would be required to make for the provision of care services by the Council to her. This assessment was carried out prior to an assessment of her care needs. The Council maintain that this exercise was unusual, would not normally be carried out until after a full assessment of need had been completed and was done on this occasion only because the Claimant had requested it. The result was that the Council assessed the Claimant's maximum contribution at £132.27 per week.
The Claimant's case is that she cannot afford such a contribution. This led to a request by her for a review of the assessment which led in turn to (a) confirmation of the maximum contribution in the sum originally assessed and (b) a decision that personal indebtedness not directly related to the Claimant's disabilities would not be taken into account for the purpose of reducing the contributions that the Claimant was otherwise required to make. It was this last mentioned decision that led to the commencement of these proceedings.
An Acknowledgement of Service was filed by the Defendant on 19 October 2012 and the application for permission to continue the proceedings came before me as a paper application on 12 November 2012, when I gave permission to continue them on one ground. I gave detailed case management directions for the future conduct of the claim that contemplated a substantive hearing lasting 3 hours a minimum of 11 weeks after the date of service of that Order. In the ordinary course of events that would have led to final determination of these proceedings (subject to any appeal) in February 2013.
On or shortly after 23 January 2013, the parties submitted a Consent Order to the ACO in Manchester ("the Consent Order"). It was approved on 5 February 2013 by an official acting under delegated powers. The recitals referred to my earlier order expressly as one " … granting … permission", to correspondence that was not produced when the Order was submitted for approval and to an agreement by the Claimant to " … cooperate fully with the Defendant's assessment process …" before then providing:
"IT IS ORDERED THAT:
1. The Claimant's claim for judicial review … be stayed until 26 th March 2013.
2. The Defendant is to commence re-assessment of the Claimant's needs on 29 th January 2013, to be completed by 26 th February 2013 and complete a fresh financial assessment of the Claimant's contribution towards care provision, if needed, by 12 th March 2013
…
4. The Claimant is to inform the Court by 4 p.m. on 26 th March 2013 if she wishes to reinstate her claim, in the event that the matter is resolved then a further consent order … be provided by the same date
5. In the event that the Claim is reinstated:
(a) The Claimant do file and serve any amended grounds by 4 p.m. on 2 nd April 2013 if so advised;
(b) The Defendant do file and serve any response to the amended grounds by 4 p.m. on 16 th April 2013;
(c) The Claimant do file and serve a trial bundle ot less than 21 days before the date of the hearing for judicial review
(d) The Claimant do file and serve a skeleton argument not less than 14 days before the date of the hearing of the Judicial Review;
(e) The Defendant do file and serve a skeleton argument not less than 7 days before the date of the hearing of the Judicial Review;
(F) The Claimant do file and serve an agreed bundle of authorities not less than 3 days before the date of the hearing of the Judicial Review …"
A particular feature of the Consent Order is that if and to the extent that it contemplated a challenge being made in these proceedings to any of the fresh decisions referred to in Paragraph 2, it entirely circumvented the permission stage by ignoring the fact that permission had been granted only in relation to a decision that would become of historical interest only once the further decisions referred to in Paragraph 2 had been taken. This somewhat startling result would not arise if the power to restore was limited to restoration in the event it became necessary to continue with the challenge to the original decision.
On 8 April 2013, the Claimant purported to file amended Grounds. This was 6 days after the date referred to in Paragraph 5(a) of the Consent Order. Paragraph 1 of the amended Grounds states that they " … should be read in substitution for those previously filed and served by the Claimant". This is not surprising since the further decision making contemplated by Paragraph 2 of the Consent Order had occurred and thus the challenge to the original decision by reference to which these proceedings had been commenced had become entirely academic. The proposed amended Grounds relate solely to the decision contemplated by Paragraph 2 of the Consent Order. This is common ground between the parties. The court then listed the claim for a substantive hearing in accordance with the directions contained in the Consent Order.
On 7 May 2013, the Council's solicitor wrote to the court suggesting that the listing of the claim for a substantive hearing was " misconceived". The letter continued:
"The Council … withdrew the decision challenged indicating the maximum possible financial contribution … This rendered the Claimant's challenge to the Council's alleged failure to consider debt when calculating the Claimant's financial contribution … academic.
This is accepted by the Claimant. Her amended … grounds … challenge a new decision namely the Council's recent community care assessment and care plan. Unsurprisingly, there is no challenge to the now withdrawn decision that was the subject of the initial challenge as such a challenge is now wholly academic not least because in light of the new assessment the Council has determined that Mrs Bhatti is required to make no financial contribution to the services provided.
The Council is of the view that permission to challenge the new decision should be refused because the grounds are not arguable and Mrs Bhatti has an adequate alternative remedy available to her in the form of a complaints procedure… Mrs Bhatti does not have permission to challenge the new decision by way of judicial review. Therefore there is no basis for having a substantive hearing to consider the new grounds. The Council is of the view that the new challenge should be considered in the normal way …"
The papers were referred to me by the ACO on 10 May 2013, when I directed:
"1. These proceedings be stayed;
2. Unless within 14 days of the date hereof either party files written notice of objection, these proceedings are to be dismissed with no order as to costs;
3. If either party objects to the dismissal of these proceedings pursuant to 2 above, then they are to be listed for a disposal hearing on the first available date thereafter with an ELH of 30 minutes;
…
5. Any claim by the Claimant for judicial review of the decision taken on 13 th March 2013 is to be commenced in new proceedings"
I gave as my reasons for making this order that:
"The consent order … contemplated that the claim could be reinstated. It did not contemplate that the Claimant would be able to use these proceedings as a vehicle for a challenge to a fresh decision taken after the commencement of these proceedings; much less did it contemplate that she could thereby avoid the requirement to obtain permission. The Consent Order contemplates merely that the existing proceedings could be reinstated if for any reason it became necessary to continue the challenge to the original decision. It did not and could not reasonably be construed as entitling the Claimant to challenge a new decision.
The correct practice to be adopted where the original decision challenged has been withdrawn with a view to a new decision being taken is that the existing proceedings should be stayed withdrawn or dismissed by consent … leaving the Claimant to commence fresh proceedings if so advised in relation to any subsequent decision – see Rathakrishnan [2011] EWHC 1406 (Admin)per Ouseley J at Paragraph 9. The practical reasons for this approach are clearly and cogently set out there and are amply illustrated by what the Claimant has sought to do in these proceedings.
If the Claimant wishes to challenge the decision of the Defendant identified in Paragraph 12 of the amended Grounds, then she can and should issue a new claim. The question of whether permission to continue any such proceedings will then be considered by a Judge on paper as provided for by part 54 of the CPR."
By a letter to the Court dated 17 May 2013, the Claimant's solicitors exercised the power conferred by...
To continue reading
Request your trial
-
Myrie v Secretary of State for the Home Department
...been applied on many occasions in the Administrative Court: we were referred also to R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin) (HHJ Pelling QC), R (Aminzada) v Secretary of State for the Home Department [2015] EWHC 4024 (Admin) (Walker J) and R (Yousuf) v Secre......
-
The Queen (on the application of Mohammad Asif) v Secretary of State for the Home Department
...v Secretary of State for the Home Department [2014] EWCA Civ 1633 (" Hysaj"). ii) Applying the principles in Bhatti v Bury MBC [2013] EWHC 3093 (Admin) (" Bhatti") it was not an appropriate case for the judicial review proceedings to remain on foot, where the original decision challenged ......
-
The Queen (on the application of John Dalton) v The Crown Prosecution Service
...9.2.4. The Court retains a discretion as to whether to permit amendments. In R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin) the Court warned that, where the defendant intended to reconsider the original decision challenged, it may not be appropriate to seek a stay ......
-
The Secretary of State for the Home Department v R Emiljano Spahiu
...decision is withdrawn. Here the earlier decision (to set removal directions) was withdrawn. There is therefore no issue. Secondly, R (Bhatti) v Bury MBC [2013] EWHC 3093 (Admin), at [27], is authority for the proposition that matters such as funding cannot dictate the procedure that a cour......