R KI v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 10 May 2018 |
| Neutral Citation | [2018] EWHC 1068 (Admin) |
| Date | 10 May 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No. CO/5942/2017 |
Neutral Citation Number: [2018] EWHC 1068 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin QC
(Sitting as a Deputy High Court Judge)
Case No. CO/5942/2017
Felicity Williams (instructed by G T Stewart Solicitors and Advocates) appeared on behalf of the Claimant
David Carter (instructed by the London Borough of Brent) appeared on behalf of the Defendant
Hearing date: 1 May 2018
Judgment Approved by the court for handing down (subject to editorial corrections)
David Elvin QC (Sitting as a Deputy Judge of the High Court)
Introduction
This is an application for judicial review, brought with permission granted on 7 February 2018 by Philip Mott QC (sitting as a Deputy High Court Judge), of the decisions of the London Borough of Brent (“the Council”) to refuse to recognise the Claimant as a child in need requiring accommodation under s. 20 of the Children Act 1989 (“the 1989 Act”) and, subsequently, on his attaining the age of 18 on 5 January 2018, refusing either to recognise his status as a “former relevant child” (“FRC”) for the purposes of s. 23C of the 1989 Act or, if he was not, to exercise its discretion to treat him as such (see R (GE) Eritrea v Secretary of State for the Home Department [2015] 1 WLR 4123 at [53]–[55].).
I will refer to the Claimant in this judgment as K, to his cousin as M and to their uncle as U. K's friends are referred to as A and Y. Quotations from the evidence have been adjusted accordingly.
Duty of candour
Before turning to the facts of this case, it is necessary for me to consider an important preliminary issue.
On reading the papers, I was concerned that the Council had not fully complied with its duty of candour and questioned at the beginning of the hearing whether the Court had been given an accurate account of the material facts. It was evident from the bundle that there were a large number of significant redactions in the documents and there were documents, especially the initial viability assessment, which were missing. I asked the Council to consider this and I am told that some 400 unredacted documents were provided to the Claimant's legal team during the course of the lunchtime adjournment of the one-day hearing. I therefore allowed written submissions to be made on the question of whether there had been the omission of any material facts and compliance with the duty.
A clear warning had been given to the Council in the Claimant's pre-action letters in December 2017 of the need to provide disclosure and to comply with the duty of candour. I had been assured by Mr Carter for the Council at the hearing that his solicitor had been through the unredacted documents the day before the hearing and had satisfied herself that the redactions were in connection with the other child (K's cousin, M). This turned out to be incorrect and a different explanation has now been given.
The Court also has a witness statement dated 4 January 2018 from Tracey Low who has been the allocated social worker for K since 13 September 2017. Although she does not say so in her statement, other than giving the usual assurances that the contents of her statement are true and correct to the best of her knowledge and belief, as the allocated social worker she will have had access to the complete Council records concerning K for the last 7 months and consulted the files before making her statement.
No subsequent statement or disclosure was made prior to the hearing in line with the continuing duty to consider observance of the duty of candour.
Unfortunately, my concerns turned out to be well-founded and from the documents disclosed and the written submissions made to me following the hearing, it is clear that an accurate picture of the material facts was not provided by the Council. This is not disputed by the Council. The Council explains in its written submissions that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty had been complied with. There must have been inadequate supervision of the drafting of Ms Low's statement to ensure it dealt with the material facts. Indeed, the statement I have been provided on disclosure says nothing about Ms Low's access to, and account of, the documents or the checking of the statement of Ms Low by the legal team or what advice she was given about compliance with the duty of candour. If the legal team did not have access to all the documents until 30 April as I am told, then they cannot have properly supervised the drafting of the witness statement on 4 January.
I am told that the Council's Legal Department does not have direct access to client records, that Social Services keep records in multiple files, and the Legal Department is dependent on the provision of the information through the Data Protection Team. The documents were requested by the Council's legal department on 18 January (2 weeks after the filing of Ms Low's statement). It appears that despite several reminders both from the Claimant's solicitors, and internally, a set of unredacted papers (including the viability assessment) was not provided to Ms Malik, instructing Mr Carter, until the day before the hearing. In the time available, contrary to what I was told in Court, she had no time to go through them (they were not in the same order as the redactions apparently) before the hearing began. I am told that the non-disclosure in this case was not deliberate and that it —
“is of grave concern to the Defendants who are anxious to ensure that the same thing does not happen in the future. It maybe that staff have been overly cautious during the redaction process. A full investigation will be undertaken by the various different departments to ascertain the cause of this failure.”
The difficulties encountered cannot justify the failure by Social Services, the witness and the Council's Legal Department properly to review the material disclosed or referred to especially since it was requested by the Claimant's legal team from the outset and the Council had 4 months between the making of the claim and the hearing. The new/unredacted documents include material which goes to the Council's asserted reasonable conclusions in respect of its statutory duties in this case. I do not know why those documents were not reviewed by either the Council's legal team or counsel before the case began. I was not asked for time before the case started to allow the documents to be reviewed.
Since this case concerns duties owed to vulnerable children, latterly young adults, I find this lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing taken with the very late concession (on the day of the hearing) that, despite resistance for over 4 months following the issue of proceedings, a duty under s. 20 had arisen at least for a period of time and that ground 1 was not contested.
There can be no excuse for this poor compliance given the previous decisions by the Court emphasising the “very high duty on public authority respondents” (e.g. R (Quark Fishing Limited) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, at [50]) and the Administrative Court Judicial Review Guide 2017 which includes at sections 6.4 and 14:
“ 6.4 Duty of Candour
6.4.1 There is a special duty which applies to parties to judicial review known as the ‘duty of candour’ which requires the parties to ensure that all relevant information and all material facts are put before the Court. This means that parties must disclose any information or material facts which either support or undermine their case.
6.4.2 It is very important that you comply with the duty of candour. The duty is explained in more detail below at paragraph 14.1 of this Guide.
….
14. Duty of Candour
14.1. There is a special duty which applies to parties to judicial review known as the ‘duty of candour’ which requires the parties to ensure that all relevant information and facts are put before the Court. This means that parties must disclose any information or material facts which either support or undermine their case.
14.1.1. This rule is needed in judicial review claims, where the Court's role is to review the lawfulness of decisions made by public bodies, often on an urgent request being made, where the ordinary rules of disclosure of documents do not apply (see paragraph 6.5 and chapter 20 of this Guide on evidence) and where the witness statements are usually read (rather than being subject to cross examination by witnesses who are called to give their evidence orally).
…
14.1.3. The Court will take seriously any failure or suspected failure to comply with the duty of candour. The parties or their representatives may be required to explain why information or evidence was not disclosed to the Court, and any failure may result in sanctions.
14.1.5. The duty of candour is a continuing duty. The claimant must reassess the viability and propriety of a challenge in light of the defendant's acknowledgement of service and summary grounds.”
These duties apply not only to claimants but to public authorities who are defendants since it will often be the case that the authority under challenge has access to information and materials which are unavailable, or may even be unknown, to the claimant. The absence of a general requirement to provide disclosure should not encourage a public authority to consider that it can adopt a less rigorous approach than a claimant, or to redact relevant material, and thus not ensuring that an accurate account of the facts is presented to the Court. See the comments of Singh J. (as he then was) in R....
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