The London Borough of Newham is, without doubt, a hard-pressed council with extremely high levels of housing need, insufficient accommodation of any sort of decent quality to meet that need, and an engaged staff, as anybody who read Ahmad would tell you. In spite of that, they do some excellent, top notch work. For example, when its private sector housing team discovered 11 people living in a pair of two-storey flats, which had been knocked through, above two fast-food takeaways, they served an emergency prohibition order on the private landlord and re-housed the households concerned in emergency accommodation.
But, they can also make what counts as a silly procedural error of considerable significance. One such procedural error was the subject of a judicial review application in R(Adow) v Newham LBC, before McCombe J on 14.04.10, as yet unreported (link is to PDF of judgment provided by Pierce Glynn). In summary, they have been getting an external doctor to do their allocations medical assessments and have done so for a while. Well, there’s nothing wrong with that (as a matter of law at any rate, although it can raise its own issues as Ealing/Locata found). It was probably a cost-effective solution to a personnel issue. The problem for Newham is/was that their allocations policy states that allocations medical assessments are to be done in-house by an officer as part of a particular team. They did not alter this element of their policy before contracting with that doctor.
They were, therefore, the subject of a successful judicial review on that ground, which was also successful on relief. Ms Adow was living in a one-bed Newham flat, with her Mum and a number of children. Her GP and a consultant paediatrician said that she should have medical priority. Newham’s external doctor said no. JR was therefore initiated but Newham did not file an acknowledgement of service.
The summary I have found is not particularly adequate, but it does make clear that Newham admitted that, at the relevant time, they did not have a person who could lawfully make the relevant decision. In a witness statement, they assured the Court that the issue would be resolved but it was also recognised by the court that the authority had not abided by the relevant administrative rules. Ms Adow had also been re-housed by this point.
The summary says that the Court granted a declaration against Newham because, in the circumstances of the instant case, they had failed to abide by the law; if there had been frank compliance with administrative procedures and a clear admission from the outset by them, then a declaration would not be necessary; however, they had acted with a lack of candour which was simply not acceptable.
Newham’s position is now hugely problematic – any allocations medical assessments for priority which any external doctor has done for Newham in at least the past three months are judicially reviewable at least; and what are they going to do with prospective applicants? It’s an unfortunate mess. One way out might be to seek to ratify their actions prospectively and retrospectively. Prospective is fine, I think; but retrospective? That raises an interesting question which, I’d say, would also be likely to end up in the administrative court …
[Edit: The transcript for this case appears here. There is little new to add to the above and to the comments. However, two points are worth noting:
(1) It does appear that Newham sought both to obscure their policy in correspondence with the Claimant’s solicitors (para 9) and then really did not engage with the JR claim at all until the last minute – their reason for not doing so in part was that they were shifting to a paperless office:
I have been told frankly, and I acknowledge the proffering of the explanation with gratitude, that some of this resulted from the council’s system of trying to minimise paper in their office and scanning everything into a computer system and then for the paper or the relevant non‑paper to be directed to the proper officer or employee within the council. (para )
One feels for David Carter, counsel for Newham, in these circumstances.
(2) There is, in my experience, always an awkward moment at the end of such a hearing when costs are being discussed. If I’m successful, and in truth it doesn’t happen that often, I wonder at my brilliance (self-delusion is wonderful). Coming back down to earth/reality, though: costs. In this case, costs were awarded on a standard basis, not an indemnity basis, partly it appears because counsel for Ms Adow did not press for indemnity costs. Note to self … ]