The High Court has described how Birmingham City Council provided an “object lesson in how a public body should not respond to public law proceedings” in its mishandling of a housing judicial review.
David Lock QC, sitting as a deputy High Court judge, was particularly critical of the council’s attempt to argue that the issue was “academic” after it belatedly found a property for Habibo Nur, while also refusing permission to serve its defence late.
The judge said this approach was “incorrect” because permission had been given for a judicial review challenging the lawfulness of the council’s housing allocation scheme, and the fact an exception had been made for an individual did not prevent the court from ruling on that challenge.
“It cannot be right that public bodies can avoid legitimate examination of the lawfulness of their decision-making processes by making an exception in the case of an individual affected by that process, and then argue that the challenge to the decision-making process, which was previously applied to that individual claimant and continues to be applied to others in like circumstances, should not proceed because it is rendered ‘academic’ by a decision of the public body to benefit an individual claimant outside the terms of the challenged decision-making process.”
Mr Lock said he was mindful of the need to give “an appropriate degree of latitude” to public bodies during the pandemic, but the council’s approach was “far outside any legitimate area of flexibility”.
A “series of lamentable failures in the conduct of this litigation” by the council had left both the claimant and the court in a “near impossible position”.
He expressed hope that the judgment would be drawn to the attention of “those having responsibility for the operation of the legal & governance department at Birmingham City Council so as to ensure that the council fully understands its duties to the court when it is engaged in public law litigation”.
The High Court heard in R (on the application of Nur and another) v Birmingham City Council  EWHC 3526 (Admin) that Ms Nur lived with her three adult daughters, one of whom has cerebral palsy and learning difficulties.
The family registered on the council’s housing list in the summer of 2011 but had “insufficient priority” to secure a property. However, in November 2018 the landlord of their private rented property repossessed it and the council accepted it had a homelessness duty to the family.
Ms Nur bid for a “large number” of properties using the council’s online bidding system but was repeatedly rejected on the grounds that she had no dependent children.
Despite being told she was top of the list for a three-bedroomed house with disabled adaptations in July 2019, Ms Nur was again rejected because of the lack of dependent children.
Her solicitors responded by sending the council a pre-action protocol letter on the grounds that its approach was unlawful. The council agreed to make an exception to its allocation scheme in September 2020, by letting a property to her.
The council’s legal and governance department wrote to the claimant’s solicitors saying: “In the circumstances, we consider that the judicial review is now academic and look forward to receiving a draft consent order by return.”
Mr Lock said the letter showed a “fundamental misunderstanding” of the differences between private and public law litigation.
“Public law litigation seeks a review of the legality of the decisions of a public body on the request of the person with standing.
“In this case, permission had been granted to review the lawfulness of the council’s allocation scheme and in particular to determine whether it was acting lawfully in preferring applicants with children over applicants with dependent disabled adults when allocating houses.
“That issue affected disabled people across Birmingham and was not limited to the personal circumstances of Mrs Nur and her family.
“Further, the claim was being brought on her behalf by a firm of solicitors who represented a large number of vulnerable people in the Birmingham area who were affected by the allocation scheme.”
The judge also highlighted a series of procedural failures on the part of the council. It failed to serve an acknowledgement of service and did not serve detailed grounds of resistance and evidence in response to the claim, in breach of a court order.
When it finally applied to serve the grounds and evidence, shortly before the hearing, the council neither explained why it had acted in breach of the order nor apologised. Further, “the evidence that the council was proposing to rely upon to seek to respond to this challenge entirely failed to engage with the duty of candour”.
Given the council’s “completely inadequate approach”, the judge declined to give permission to allow the council to serve the grounds and evidence.
Mr Lock upheld the judicial review challenge and said he would make an order containing declarations that the council had misunderstood the terms of its housing allocation scheme and acted unlawfully in its implementation.