Guidance on approach to be taken in “rolling judicial review” claims and provision of interim support under the Care Act 2014

Mr Justice Fordham has given Guidance today in a case about the right approach to cases under the Care Act 2014 where a claim is made that a local authority has acted unlawfully, but where there are a series of interim decisions which mean that the precise focus of the challenge continues to move with each interim decision. 

R (Ali Raja and Ali Hussain) v Redbridge LBC [2020] EWHC 1456 (Admin) Fordham J heard a case about the lawfulness of refusals by a local authority to put interim measures put in place whilst a review and reassessment of care needs was undertaken.  In summary, the mother of 2 severely disabled adults had sought additional support at night to turn her sons in bed.  The Council took time to complete the needs review and, in the meantime, refused to provide interim support.   That interim refusal was challenged by way of judicial review. 

However, there were a series of decisions made by the Council to refuse interim support and thus the “decision” which was subject to challenge repeatedly changed as the case progressed. 

In a potentially significant passage Fordham J said at §14: 

“When these judicial review proceedings were commenced, the section for “Details of the decision to be judicially reviewed” in the Court FormN461 (claim for judicial review) was filled out by the claimants’ lawyers as follows: “The defendant’s failure to provide interim care and support to the Claimants to meet their urgent night-time care needs under section 19(3) of the Care Act 2014”. The “Date of Decision” section was filled out as: “Ongoing”. Ms Rowlands did not dispute the appropriateness of a claim designed in this way. In my judgment, she was right not to do so” 

Hence where a public body’s breach of a legal duty is alleged to be continuing, it is now clear that it is appropriate for the N461 to record that fact as opposed to referring to a defined date of a decision. 

The way that a “rolling review” case then has to proceed was examined by the Judge at §18 where he said: 

“These proceedings are, by their nature, an example of what has come to be described as “rolling judicial review”. When I put this to Ms Rowlands, she agreed with this characterisation. I have described above the way in which the Form N461 was filled out, and the mandatory remedy which was and is sought. The claimants say that there has been an “ongoing failure” to recognise that the ‘sole justifiable response’ is to make interim care provision. I have described the series of rejected requests and the continued resistance of the claim. The defendant, rightly, did not object to the design of the claim as challenging an “ongoing” “failure” to make what was said to be the ‘sole justifiable response’. Both parties invited the Court to consider the fresh evidence, filed in the proceedings, without objection from the other. In my judgment, both parties and their representatives were right to recognise that, in this particular case, the “rolling” nature of judicial review was not inappropriate” 

Thus a Court can consider and adjudicate on the lawfulness of a series on-going decisions, each of which replaces the last decision .  The Judge referred to the recent cases about the need for procedural rigour (e.g.  R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 at §67) and the need to avoid the court adjudicating on cases where material was not before a decision maker.  However he also recognised that multiple decisions were in a different category.  He said: 

“On the other hand, in cases where public authorities have ongoing functions, where open-minded re-evaluation and re-consideration area reality and a virtue, there needs to be sufficient flexibility to ensure that the interests of justice are secured and not undermined” 

Fordham J confirmed that the Council had powers under the Care Act 2014 to provide interim support to meet needs whilst revising a needs assessment just as it has power to do so before an initial needs assessment is completed – and arguably erred in suggesting that it did not have that power until the reassessment was completed.  That conclusion is plainly correct and it seems surprising that it was argued that the Council had no such power.  The result of this case was that the Court accepted that where was only “one realistic option” on the evidence and thus the Council acted unlawfully in failing to exercise the power to provide interim support pending a reassessment of needs.  The power to provide interim support was given by Parliament and thus local authorities had to consider exercising that power, but where there was more than one way to approach matters, the Council had a wide discretion to whether and how to meet changing needs.  However, whilst that discretion lies with the Council, the Judge criticised  the Council for responding constantly through its legal department and failing to produce a “reasoned response by a primary decision-maker” explaining the basis for the decision not to exercise the power to provide interim support. 

Hence the message for local authorities is that, if challenged on a failure to exercise the power to provide interim support under the Care Act 2014, the Council should ask the client department to prepare a reasoned decision document explaining why, in advance of a completed reassessment, it has decided not to provide more support.  It is not right to leave all responses to the lawyers.