Natasha Bellinger recently appeared on behalf of three Government departments in the Administrative Court and successfully resisted a renewed application for permission to bring judicial review proceedings concerning national supported housing policy and wide-ranging housing allocation issues.
The claim for which permission was sought challenged the Government’s approach to supported housing regulation and argued that the needs of a specific group were inadequately considered in policy development.
Several grounds were initially relied upon in the application for permission to bring a judicial review. However, the remaining argument advanced at the oral permission hearing was framed as a Tameside duty challenge, namely that the Government had failed to make adequate inquiries and consider relevant matters before taking the alleged decision under challenge.
On behalf of the Defendants, Natasha submitted that the challenge was fundamentally flawed because no specific public law decision had been identified. The materials relied upon by the Claimant consisted of consultation and policy documents relating to the ongoing reform of the supported housing sector. Those documents formed part of a continuing policy development process and did not identify any operative decision capable of challenge by way of judicial review. It was Natasha’s submission that the claim for judicial review was premature consistent with the guidance in R (on the application of Gill) v Cabinet Office [2019] EWHC 3407 (Admin).
The Court agreed.
In refusing permission, the Court emphasised that a central requirement of judicial review is the identification of a specific decision, act or omission capable of challenge. The Judge observed that he had struggled, as had the judge who refused permission on the papers, to identify the decision said to be unlawful. The documents relied upon by the Claimant merely demonstrated that guidance might be published or that secondary legislation would be introduced in the future. In the absence of a specific decision, there was no basis upon which the Court could assess whether any alleged failure of inquiry had occurred.
The Court further held that the adequacy of inquiries undertaken by a public authority can only be evaluated by reference to an identifiable decision. While future policy decisions or legislative measures might potentially be susceptible to challenge if relevant considerations were not taken into account, the present claim was premature because no such decision had yet been identified.
Permission was therefore refused, the Court finding that none of the grounds advanced had a realistic prospect of success.
Natasha was previously instructed by the Government Legal Department to advise and prepare the summary grounds of defence for contesting the claim. The Deputy High Court Judge who refused permission on the papers noted these grounds of defence were “well founded”.
If you would like to instruct Natasha on public law matters, please contact her clerk, Nick Headley, on 01392 285 208 or nheadley@magdalenchambers.co.uk.