Claim number: CO/1204/2033
In the High Court of Justice
King’s Bench Division
23 May 2023
His Honour Judge Auerbach sitting as a judge of the High Court
The King on the application of
(2) N (by K as her litigation friend)
(3) M (by K as her litigation friend)
London Borough of Lewisham
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12) and related applications
Following consideration of the documents lodged by the Claimant and the Acknowledgement of service filed by the Defendant and other materials on the Court’s file
ORDER by His Honour Judge Auerbach sitting as a judge of the High Court
- Pursuant to CPR 39.2 in these proceedings the original Claimant and her two daughters, born in 2010 and 2009 (who are now, pursuant to paragraph 2 of this Order, also Claimants) are to be anonymised and referred as, respectively, K, N and M. Pursuant to CPR 39.2, in any report of these proceedings there shall be no publication of the names or address of any of the Claimants, nor of any particulars likely to lead to the identification of any of them.
- The unopposed application to add N and M as additional Claimants (each of them litigating by K as their litigation friend) is granted.
- The Claimants’ application to be permitted to file a reply to the Defendant’s Acknowledgment of Service and Summary Grounds of Defence, dated 28 April and sealed on 9 May 2023, is granted.
- Permission to apply for judicial review is granted.
- The claim shall be listed for hearing on the earliest convenient date consistent with the directions timetable, with a time estimate of one day. If the parties disagree with this time estimate they shall provide a written time estimate within 7 days of service of this order.
- Costs reserved.
- The application to add N and M as Claimants is unopposed. Given their ages and disabilities, anonymity is plainly necessary and justified for them, and therefore necessary also for K.
- On present information I consider all four grounds to be arguable. I have permitted the Claimants’ Response to be entered, but not, as requested by the Defendant, also permitted a Reply to the Response to be tabled, as such. That is because the existing Grounds are arguable, the substance of the Response is further legal argument, and the Defendant can develop its points of reply in the Detailed Grounds and in due course skeleton argument.
- I do not think it is necessary or practical to direct expedition for guaranteed hearing by the end of Trinity Term, but I have provided for a tighter directions timetable than usual.
- As to Ground 1, the Defendant accepts that the two child Claimants have very significant disabilities, are unusually vulnerable, and are in unsuitable accommodation. In light of the undisputed facts about the impact of her present accommodation on her, the Article 8 argument in relation to N passes the threshold of arguability. As to Grounds 2 and 3, given what the Defendant says in the AOS, and on present information, these grounds are arguable. On present information Ground 4 is also arguable.
- The nub of the Claimants’ case is not that Article 8 gives rise to an absolute right to be housed in particular accommodation, or does so regardless of the realities of the overall available resource, but that the Defendant has not been wholly clear about the criteria it is applying in respect of adapted or adaptable accommodation that is being considered as an option to be allocated to the Claimants, and/or that it could and should adopt different criteria in this case. Depending on what further steps the Defendant takes (or may by now have taken) in relation to Child in Need Assessments and Plans and a carer’s assessment for K, and/or what further clarification or
confirmation it provides in relation to the latter point, it may be incumbent on the Claimants to review the scope of this claim.
Case Management Directions
- The Defendant shall, within 14 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
- Any application by the Claimants to serve evidence in reply shall be filed and served within 14 days of the date on which the Defendant serves evidence pursuant to 1(b) above.
- The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 21 days before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
- The Claimants must file and serve a Skeleton Argument not less than 14 days before the date of the hearing of the judicial review.
- The Defendant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
- The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.