R RS v London Borough of Brent

Court:Court of Appeal
Docket Number:Case No: C1/2019/2984
Judge:Lord Justice Green, Lord Justice Newey
Judgment Date:18 Dec 2020
Jurisdiction:England & Wales
Neutral Citation:[2020] EWCA Civ 1711

[2020] EWCA Civ 1711

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Queen's Bench Division, Administrative Court

Richard Whittam QC sitting as a Deputy High Court Judge

CO/358/2019

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Newey

and

Lord Justice Green

Case No: C1/2019/2984

Between:
The Queen on the application of RS
Appellant
and
London Borough of Brent
Respondent

Ms Galina Ward (instructed by Duncan Lewis Solicitors) for the Appellant

Mr Lindsay Johnson (instructed by Brent Council Legal Department) for the Respondent

Hearing date: Tuesday 27th October 2020

Approved Judgment

Lord Justice Green

Introduction: The Issues

1

The Appellant 1 suffers from a debilitating but non-physical condition which makes walking very difficult. He applied for a “Blue Badge” parking entitlement. This was refused absent a mobility assessment by an expert. He sought judicial review and the Respondent, in due course, entered into a Consent Order (the Order) under which the Appellant was granted a Blue Badge without having to undertake a mobility assessment. However no provision was made for costs. This matter was submitted to the Judge to determine. This appeal is against the ruling of Richard Whittam QC, sitting as a Deputy Judge of the High Court (“ the Ruling” and “ the Judge”), dated 14 th November 2019 in which he refused to make an order for costs in favour of the Appellant.

2

It is said that the Judge erred in making no order. He should have made an order in favour of the Appellant since this was a case where, by virtue of the Order, the Appellant obtained in substance the relief he sought. In short, he won. The Court of Appeal in M v Croydon LBC [2012] 1 WLR 2607 (“ M”) categorised cases into three types and identified principles to be applied in each category whilst at the same time recognising that all cases were fact and context specific. The Appellant argues that the present case is a clear category (i) case where the Appellant achieved through the litigation essentially all that he was seeking. Accordingly he is, prima facie, entitled to his costs absent some other good reason not to award costs. No such reason exists here. The Judge therefore erred in failing to categorise this case as category (i) and also in identifying a policy reason for not awarding costs.

3

The Respondent disagrees. It is denied that the Appellant won outright. He did not obtain all of the relief that he sought in the judicial review proceedings. On this basis the Judge was entitled to treat this as category (ii) or (iii) case (where there is no starting assumption that the claimant gets costs), and in effect a “ nil all draw”. But even if that was wrong there were good policy reasons, based upon the need not to disincentive settlement, for not awarding costs. Standing back, the local authority took a pragmatic decision to grant the Appellant a Blue Badge and settled the litigation at the first reasonable point in time, and the Judge correctly exercised a discretion which on appeal, this court should be slow to interfere with absent some plain error, which there is not.

4

The issues on this appeal focus upon: (a) what is understood by a category (i) case in M and the difference with categories (ii) and (iii); (b) what amounts to a good reason for not awarding costs; and (c), whether the classification of the outcome of litigation in terms of the categories in M is one of discretion for the Judge, which the appeal court should be very loathe to interfere with, or one which involves the assessment of principle which this court can review.

The Facts

The Appellant

5

The Appellant issued his application for judicial review on 24 th January 2019, seeking an order requiring the Respondent to decide his application for a Blue Badge within four weeks of the date of an order being made, and damages for breach of Article 8 of the ECHR. The Appellant argued that the Respondent had misconstrued the relevant legislation as excluding from entitlement to a Blue Badge a person with a non-physical disability who nonetheless had a consequential inability to walk, and had imposed an unlawful, discriminatory and irrational obligation upon the Appellant to attend for a disability assessment before the Respondent would make any substantive decision.

6

The Appellant does not suffer from a physical disability. He does however suffer from various conditions including Autism Spectrum Disorder (“ASD”), learning difficulties and Hyperacusis which is a hearing disorder causing increased sensitivity to certain frequencies and volume ranges of sound. It can be debilitating. The Appellant was issued with Blue Badges by the Respondent during the period 2000–2013. An application for renewal made in March 2013 was however refused upon the basis that his conditions were “ no longer considered to be a qualification for a disabled blue badge”.

7

Subsequently, the Appellant submitted expert medical evidence establishing that his non-motor condition nonetheless resulted in an inability safely to walk which justified the grant of a Blue Badge parking entitlement.

The Legislative Context

8

It is relevant at an early stage to say something about the legislative context. The judicial review concerned the interpretation of Regulation 4(2)(f) of the Disabled Persons (Badges for Motor Vehicles) Regulations 2000 (“ The 2000 Regulations”). This was made under section 21 of the Chronically Sick and Disabled Persons Act 1970. It provides for badges (“ Blue Badges”) for display on motor vehicles used by disabled persons to be issued by local authorities. Section 21(2) states:

“A badge may be issued to a disabled person of any prescribed description resident in the area of the issuing authority for one or more vehicles driven by him or used by him as a passenger.”

9

It is clear that the provision provides a power (cf the word “ may”), not a duty. At all times until 30 th August 2019 the description of disabled persons included: “ a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking” (Regulation 4(2)(f)). The Respondent, in common with some other authorities, whilst accepting that persons with non-physical disabilities were not per se excluded, nonetheless construed this provision as limited to physical disability causing an applicant's mobility impediment. This therefore excluded non-physical obstacles to walking. Examples of the latter would include anxiety at being out in public or safety concerns arising out of mental health difficulties.

10

On 21 st January 2018, the Department for Transport (“ the Department”) launched a public consultation about eligibility issues under the Blue Badge Scheme. The reason for the consultation was said to be (paragraph [3.5]) that in the course of discussions with local authorities and from correspondence with the public it had become clear that the application of the scheme to those with non-physical disabilities was not “ clearly understood”. In paragraph [3.11] the Department crystallised the issue around causation i.e. whether a walking impediment caused by a non-physical disability fell within the scheme or whether it only applied where the impediment to walking was caused by a physical disability. There was also confusion as to the nature of the impediment to walking. Did it only cover physical problems – for instance the ability to put one foot in front of another – or did it also include the sorts of impediments that a person with a non-physical disability might encounter which might flow from anxiety or fear and those which could give rise to safety concerns.

11

On 29 th July 2018, the Department issued a consultation response which made clear that those with hidden disabilities which “ caused” impediments to walking were, in principle, within the scope of the 2000 Regulations. In paragraph [2] the following was observed:

“The current rules embrace all conditions, physical or otherwise, but it had become clear to us that the regulations and guidance were not clearly understood and that people with hidden disabilities were sometimes finding it difficult to access badges, even though their condition caused them very significant difficulties when undertaking a journey.”

12

The amendment of legislation to clarify what Government considers is already the law is relatively unusual. Nonetheless, the Department stated an intention to amend the 2000 Regulations in order to:

“… make it clear that people can qualify not just because of a physical difficulty in walking but for non-physical reasons that might make it equally difficult getting from the vehicle to the destination even though they can walk.”

13

On 24 th April 2019, The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2019/891 were made. They were laid before Parliament on 30 th April 2019 and amended Regulation 4(2)(f) of the 2000 Regulations effective as from 30 th August 2019. The Explanatory Memorandum stated (paragraph [7.2]):

“Although the Department considers that people with non-physical disabilities are not currently excluded from receiving a Blue Badge, it had become clear through discussions with local authorities and from correspondence that the application of the Blue Badge Scheme to people with non-physical disabilities was not clearly understood or administered consistently across the country.”

14

The Memorandum also explained that problems arose due to uncertainty as to the meaning of the phrase “ very considerable difficulty in walking”.

15

The effect of the amendment was to clarify that the right to a Blue Badge under the 2000 Regulations applied to a person certified by an expert assessor as having an enduring and substantial physical or non-physical disability which caused them, during the course of a journey, to (a) be unable to walk; (b)...

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