The claimants, a Ghanaian mother and her three children, informed the local authority that they faced eviction. Since the mother was ineligible for assistance under the homelessness legislation due to her immigration status, the local authority began an assessment under section 17 of the Children Act 1989 to determine if accommodation could be provided on the basis that the children were in need. Nearly two weeks after they had been evicted, with the section 17 assessment not yet completed, the claimants sought judicial review of the local authority’s failure to provide accommodation under section 17. A week later the assessment was completed and recommended that temporary accommodation be provided under section 17. The judge refused to grant the claimants permission to proceed with their claim for judicial review on the ground that it was not properly arguable. The claimants sought an oral renewal of their application for permission, but before that was heard they withdrew the claim by consent. The judge made no order for costs, rejecting the claimants’ submission that they were the successful party and so entitled to their costs.
On the claimants’ appeals—
Held, appeal dismissed. (Per Underhill LJ and Sir Rupert Jackson, Moylan LJ agreeing with the result and parts of their reasoning). The claimants could not succeed on their claim for costs on the conventional basis, ie that they had obtained substantially the relief sought and were accordingly to be viewed as the successful party. The object of the proceedings was not to secure an assessment under section 17 of the Children Act 1989 but to secure it sooner than it was feared would otherwise be the case. In a case of this kind the measure of “success” had to be whether as a result of the proceedings being brought the assessment was completed substantially sooner than it otherwise would have been. There was no reason for supposing that to have been the case here. Accordingly, it would not be fair to award the claimants their costs simply on the basis that they were “the successful party”. However, looking at the particular circumstances of the case, it would be appropriate for them to be awarded their costs if the court were in a position to decide with sufficient confidence, assessing the materials before it on a summary basis, both: (a) that the local authority had been legally obliged to produce the assessment prior to the date on which the claimants commenced their claim for judicial review; and (b) that it was reasonable of the claimants to issue the proceedings on that date. On the facts, the claimants could not satisfy part (a) of the test. A section 17 assessment was a serious exercise, requiring information from several sources, and local authorities had many calls on their resources. A court should be slow to find that an authority had been guilty of unlawful delay simply because it had missed a benchmark target or its performance might be shown to have been sub-optimal in some particular respect. There were indications that the local authority had encountered difficulties in accumulating all the information that it felt it required: given that the delays in question were on any view not gross it would not be proportionate on a costs assessment to attempt to get to the bottom of exactly what had gone wrong or whose fault it was (paras 72, 74–78, 79).
Tim Buley (instructed by Public Law Project) for the claimants.
Mark Tempest (instructed by Solicitor, Croydon London Borough Council) for the local authority.