Costs pre-permission in the Administrative court and Stewart v Hammersmith and Fulham revisited

16 May 2011

On Friday 13th May 2011, Morayo Fagborun Bennett, instructed by Paul Heron of Hackney Community Law Centre successfully obtained a costs order in the Administrative Court in R (Ambrose) v City of Westminster.

The Claimant and her stepson had applied to Westminster for housing following their eviction in December 2009. The Claimant sought accommodation under Part 7 of the Housing Act 1996. She subsequently sought interim accommodation pending review of the decision that she was intentionally homeless. This was declined by Westminster.

Westminster purportedly following R (Stewart) v London Borough of Hammersmith and Fulham, Wandsworth and Lambeth [2001] EWHC Admin 709 considered that as they had housed the family within the London Borough of Hackney, Hackney and not themselves were responsible for undertaking a section 17 Children Act 1989 assessment. They therefore refused to refer the matter to their own social services department.

The Claimant made an application to the Administrative Court and was granted an interim order for Westminster to provide accommodation pending judicial review. At the oral hearing in August 2010 of Westminster’s application to discharge the interim order, they were unsuccessful, although the interim order was varied so that accommodation was to be provided until five working days after completion of the assessment. That order was never discharged.

Following the Children Act 1989 assessment, the Claimant’s stepson was found to be a Child In Need, within the Act and it was considered that it would be detrimental to him to be separated from his sole carer/parent, Mrs Ambrose. Hackney Community Law Centre’s persistence resulted in Westminster convening its Children Act Accommodation Panel which offered accommodation in the private sector to Mrs Ambrose and her stepson. Once the tenancy agreement was signed, only the issue of costs remained.

At the costs hearing on Friday 13th May 2011 Westminster argued that following R (Boxall) v Mayor and Burgesses of Waltham Forest LBC (2001) 4 C.C.L. Rep. 258, the correct order was no order as to costs; the failure to undertake the assessment since December 2009 had been an oversight, most of the pre-action protocol had focused on the homelessness case and that it was permissible to discharge their duty under Section 213A of the Housing Act 1996 by referring the Claimant to Hackney Council.

His Honour Judge Richard Foster (sitting as a Deputy High Court Judge) ruled that given that Westminster had made an error of law in not assessing the Claimant’s stepson’s needs under the Children Act 1989, it was appropriate to make an order for costs even though the matter had become academic prior to permission to judicial review being granted. Westminster had a duty to undertake an assessment of a child attending one of its schools even if it had housed them in temporary accommodation outside the borough. The order was appropriate because Westminster had continued to defend what it classed as an “oversight,” the Claimant had referred to a duty to assess in the pre-action protocol and Westminster had spoken to the Claimant’s stepson’s school and professed to be aware of the relevant caselaw.

Lord Justice Jackson in his “Review of Civil Litigation Costs” had said at 4.12 to 5.1 “[t]hat if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.” It may well be that in the future Claimants will not have to satisfy the Boxall v Waltham Forest test and will get their costs where the pre action protocol has been satisfied.

Permission was given by the Court of Appeal in the AK v Secretary of State matter on 21 March 2011. In that case, the court will consider whether following the introduction of Pre-Action Protocols for Judicial Review, the Court of Appeal should adopt the recommendation of Lord Justice Jackson in his Report on Civil Litigation Costs and modify or abandon the Boxall v Waltham Forest test, and introduce a new "normal" order. Whether Lord Justice Jackson’s recommendation will be adopted remains to be seen.

Morayo Fagborun Bennett
15th May 2011