In the line of judicial fire
31 January 1995
An increasing number of authorities are facing judicial review actions. Mary Heaney examines the impact of this
The growing number of judicial review applications against local authorities is leading some to be more circumspect about how they take decisions.
Barbara Cohen, principal solicitor at the London Borough of Camden, says: "We're always aware of people looking over our shoulders. It's important to get the decision right."
And while Mike Sullivan-Gould lightheartedly says he dreads the post every morning lest he find a judicial review application, in his six years at the helm of Basingstoke and Deane, so far the borough council has not received any.
"We try to make sure that we take decisions in a proper manner and that there are very clear delegations of authorities to the committees. We also make sure that where policies are established for enforcing or making grants, that these are very clear and formed in advance," he says.
The approach was adopted when he joined the council, he says, adding: "I regard it as indicative of failure if you get judicial review applications. It means the decision making processes are not explained."
A healthy development is the High Court's dictum that there must be contact between the council and the respondents before the matter gets to court, he believes.
All too often, however, local authorities treat judicial review "as an enemy rather than being complementary to good decision-making," according to public law specialist Richard Gordon QC.
This is reflected in the mushrooming number of challenges to local authority decisions which are appearing in new areas all the time.
Traditionally, central government was at the receiving end of such applications and immigration cases were top of the list. Research carried out by the Public Law Project in 1993 shows local authorities are now replacing central government as the main respondents, after immigration cases. According to the research, homelessness accounts for 35 per cent of applications. Other housing problems followed at 11 per cent; town and county planning accounted for 9.5 per cent; education accounted for 7 per cent; licensing 6 per cent and family matters 4 per cent.
But authorities are expecting a flood of judicial review cases in new areas. Community care is one which is cited by most local government lawyers. A test case on 23 February is likely to have far-ranging implications for hard-up local authorities.
Two Gloucester pensioners are challenging Gloucester County Council's decision to revoke their home care on the basis that the council cannot afford to fund it. Richard Gordon QC is representing the two pensioners in the case.
It raises questions such as if a local authority runs out of money, does this provide a defence, Gordon says.
Other councils are beginning to notice an increasing number of community care applications. Islington sees growth in the area, as does Camden. Cohen says the council had been threatened with some community care judicial reviews but "was able to resolve them".
Education challenges are also on the increase, local government lawyers say. According to Cohen, this is because children can now get legal aid without their parents' income being taken into account. She predicts that the greater emphasis on choice will lead to more cases on school admissions and special educational needs.
Another vulnerable area is the recently formed Housing Benefit Review Board, a panel of local councillors which hears appeals on housing benefits.
According to Sullivan-Gould, challenges are now beginning against these boards. He says local councillors did not enter local politics to become judges and that they were "finding we're having to put in a huge amount of support". He adds, however, that it is only a matter of time before someone "trips up". The new Criminal Justice Act will also open the way for more actions, says Brian Cox of Bristol firm Bobbets Mackan. "It now gives less rights to travellers. We say you have to consider the rights of their children," he says.
Local authorities themselves often undertake judicial review litigation, frequently against the DoE. Camden is currently involved in a judicial review against the Department of Environment over local government finance and how its accounts are put together.
This relates to five aspects of accounting and if successful will release more money to use in particular areas. They also challenge other authorities relating to town and country planning, housing, rates and education.
Fifteen per cent of applications from local authorities are against magistrates courts on crime, family law matters, housing and licensing. Gordon says the challenge between local and central government is a result of the two being "locked in an internecine struggle in the courts". Rates and charge capping are two such areas where this is most in evidence.
Some local authorities find themselves challenged on a more regular basis than others. Stephen Craggs of the Public Law Project says this can happen if "there is a legal practice nearby that knows how to do judicial review". Law centres and Citizens Advice Bureaux are usually proactive on judicial review applications but a number of firms undertake this work.
One such firm is Bobbetts Mackan, which has undertaken judicial review work since its beginnings in the 1970s. "Five firms are doing 75 per cent of the work," says associate Brian Cox. The majority of his firm's work is housing and travellers but it has some major childcare cases under its belt, notably Hazel versus Avon County Council in 1993 which interpreted the rights of funding for a disabled person.
Here, he says, the local authorities "became more entrenched", with the result that a case worth u3,000 cost them u100,000.
One hazard which those advising on judicial review questions often face is the lack of understanding from the judiciary. There is little consistency between decisions on applications, say lawyers.
"Which judge you get is of material importance because the range of judges are variable," says Gordon. "If you have no experience of local authority work at the Bar, you may not have a feel for the problems." He says there is inadequate understanding in the courts, for example, of community care assessments and how they are carried out as they are not something which most judges come in contact with.
In the next few years, while judicial review applications show no sign of abating, councils will go to greater lengths to avoid them.
Leicester City Council town clerk Arthur Price-Jones says: "People are learning the lesson. As the number of judicial reviews escalated in the last five years, local authorities became increasingly conscious of the threat and the need to approach the decision making process properly."
A number of local authorities are training solicitors in how to deal with judicial review. The London Borough of Southwark has run training courses, as has Camden, although only for lawyers working in relevant fields. "We give training in judicial review if solicitors come up against it," says Cohen.