R Iffat Naureen and Another v Salford City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Etherton,Lord Justice Moore-Bick |
| Judgment Date | 15 January 2013 |
| Neutral Citation | [2012] EWCA Civ 1795 |
| Docket Number | Case No: C1/2012/1028 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2013 |
[2012] EWCA Civ 1795
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN's BENCH DIVISION
HIS HONOUR JUDGE STEWART QC
CO126262010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Etherton
Lord Justice Jackson
Case No: C1/2012/1028
Mr. Ian Wise QC and Mr. Stephen Broach (instructed By Irwin Mitchell Solicitors Llp) for the Appellants
Mr. John Howell QC and Mr. Hilton Harrop-griffiths (instructed By Salford City Council) for the Respondent
Hearing Date: 13th December 2012
This judgment is in five parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The appeal to the Court of Appeal,
Part 4. The law,
Part 5. Decision
This is an appeal by claimants in judicial review proceedings against the court's refusal to award costs in their favour following settlement. The settlement was an agreement that the claimants would withdraw their claim, because of a change in circumstances.
The claimants are failed asylum seekers. The second claimant obtained exceptional leave to remain at a late stage of the proceedings and it was clear the first claimant would also be granted leave to remain. The defendant is the Salford City Council, to which I shall refer as "the council".
I shall refer to the Pre-Action Protocol for Judicial Review as "the pre-action protocol".
I shall refer to the National Assistance Act 1948 as "the 1948 Act". Section 21 of the 1948 Act provides:
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —
(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute."
I shall refer to the National Health Service and Community Care Act 1990 as "the 1990 Act". Section 47 (1) of the 1990 Act provides:
"Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall decide whether his needs call for the provision by them of any such services."
Having set out the relevant statutory provisions, I must now turn to the facts.
The claimants are a married couple from Pakistan. They applied for asylum in this country, but those applications were refused and in due course their appeal rights were exhausted. Thereafter the claimants remained in this country as failed asylum seekers. They both made fresh claims for asylum.
On 16 th August 2010 the UK Border Agency withdrew the accommodation which it had previously provided to the claimants. The claimants then went to live in a hostel provided by a charitable organisation called the Boaz Trust. I shall refer to this accommodation as "the Boaz hostel". Both claimants had health problems. The first claimant, the wife, had osteoarthritis. The second claimant, the husband, had prostate problems and needed to urinate frequently.
The claimants maintained that the Boaz hostel was unsuitable accommodation in view of their poor health. They applied to the council, as their local authority, to assess their needs pursuant to section 47 of the 1990 Act and to provide them with accommodation and support pursuant to section 21 of the 1948 Act.
The council duly carried out assessments pursuant to section 47 of the 1990 Act. Having done so, the council rejected the claimants' claims for accommodation and support.
After sending appropriate pre-action protocol letters, the claimants commenced judicial review proceedings against the council on 7 th December 2010. The substantive relief which the claimants claimed in their claim form was the following:
"(a) A Declaration that the Claimants are in need of care and attention for the purpose of s.21 (1) (a) NAA 1948;
…
(c) A Mandatory Order requiring the Defendant to provide the Claimants with suitable accommodation and support until such time as the Claimants' needs are re-assessed and the Defendant finds that circumstances have changed such that the Claimants are no longer 'in need of care and attention';
…"
The essence of the claimants' pleaded case was as follows. They accepted that, as failed asylum seekers, they had to overcome the hurdle set up by section 21 (1A) of the 1948 Act. The claimants relied upon the reasoning of the House of Lords in R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808. They contended that they needed to be "looked after" because of their health problems. Accordingly they fell into the category of infirm destitute, not able bodied destitute. Appropriate care and attention could not be delivered to the claimants in the Boaz hostel. Therefore the council should provide suitable residential accommodation for the claimants pursuant to section 21 (1) (a) of the 1948 Act.
The council resisted this claim. The council contended that the claimants' condition was not such that they needed "care and attention" within the meaning of section 21 (1) (a) of the 1948 Act. In the alternative, if the first claimant was in need of care and attention, that could be provided by the second claimant, her husband: see R (Mwanza) v Greenwich London Borough Council [2010] EWHC 1462 (Admin), [2011] PTSR 965. The claimants were currently residing at the Boaz hostel and the council was under no duty to provide other accommodation for them.
Having commenced proceedings, the claimants immediately applied for interim relief. That application came on for hearing before His Honour Judge Waksman QC on 10 th December 2010. Both parties were represented by counsel. The available medical reports on the claimants were put in evidence. So also were the assessments carried out by the council.
Judge Waksman directed that there should be a "rolled up" hearing to deal with the question of permission and (if granted) the substantive claim. He gave directions for the service of evidence, skeleton arguments and so forth. Judge Waksman also granted the claimants' application for interim relief, observing that the claimants' case was " prima facie arguable". He ordered the council to provide the claimants with suitable accommodation and subsistence support until the trial of the action. Neither party applied for costs. The parties agreed that the costs of the application for interim relief should be reserved. Judge Waksman so ordered.
Thereafter the action duly proceeded. The council served its detailed grounds of resistance. Both parties subsequently amended their pleadings. The council carried out further assessments. The parties duly served their evidence. In the event, however, the claimants no longer found it necessary to pursue this litigation. On 2 nd February 2012 the Secretary of State granted exceptional leave to remain to the second claimant. It was clear that the first claimant would also be granted leave to remain. In those circumstances it was anticipated the claimants would become entitled to mainstream benefits. Accordingly they decided not to pursue their claim against the council under section 21 of the 1948 Act.
On 14 th March 2012 the Administrative Court in Manchester made the following order by consent:
"It is ordered by consent that:
1) The Claimant's application for judicial review be withdrawn; and
2) The question of costs be determined by the Court on receipt of written submissions, such submissions to be filed and served simultaneously at 4pm on Friday 30 March 2012."
This order appears to have been stamped and issued by the court office without any involvement of a judge. This is a matter to which I shall return.
The parties duly lodged their written submissions on costs. The claimants contended that the council should pay the claimants' costs of the action, essentially on three grounds:
i) The claimants had complied with the pre-action protocol.
ii) The claimants had obtained an order for interim relief.
iii) The claimants' substantive case was strong. If the action had gone to trial, it was highly likely that the claimants would have won.
The defendants contended that there should be no order as to costs. The defendants contended that they had a strong defence to the claim. They relied upon their own assessments of the claimants and upon the decision of Hickinbottom J in R (Mwanza) v Greenwich London Borough Council [2010] EWHC 1462 (Admin), [2011] PTSR 965.
His Honour Judge Stewart QC considered this matter on the papers. On 12 th April 2012 he decided that there should be no order as to costs. His written reasons read as follows:`
"Applying the factors identified in R (Bhata) [2011] EWCA Civ 895 and in Harripa...
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