Court of Appeal rejects as “academic” judicial review claim over ending of ‘Everyone In’ homelessness scheme

The Court of Appeal has rejected an appeal over a High Court judge’s dismissal of a judicial review challenge to the Government’s decision to end the ‘Everyone In’ initiative that was launched to get rough sleepers off the streets during the pandemic.

The claimant in ZLL, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 came to the UK in 2002 and his visa expired in 2004. His immigration status put him in the category NRPF (no recourse to public funds) and he had spent many years rough sleeping.

Between March 2020 and April 2021, he was accommodated in a series of homeless shelters operated by various charities. In April 2021 he approached Camden Council for accommodation, relying on the 'Everyone In' initiative.

Camden accepted that it had a discretion to accommodate him but said it had decided not to exercise that discretion in his case, because he was NRPF and not within the "most vulnerable and at risk" group of rough sleepers. A separate claim for judicial review challenged that decision and had been stayed pending resolution of the claim.

Two grounds for judicial review were put forward:

1. Breach of a public law duty by adopting an unpublished position in non-conformity with published Government policy; and
2. Breach of a public law duty in not conducting prior consultation with Shelter.

Dismissing the challenge, Mr Justice Fordham concluded: “The claimant's representatives have brought before the judicial review Court, for detailed examination and scrutiny, a sequence of events relating to a Government rough sleepers initiative with the resonant and inclusive title of ‘Everyone In’.

“Insofar as there are open questions about how that aspect of Government policy was expressed and communicated, how it ebbed and flowed, how it was understood, and how NGOs were engaged along the way, those questions belong in the arenas of public opinion and of politics.

“The role of the judicial review Court, in the exercise of its supervisory jurisdiction, is to apply carefully delineated objective legal standards, to secure accountability of public authorities to law. The objective legal standards invoked in this case were not breached. The claim for judicial review fails.”

The claimant appealed.

In ZLL, R (On the Application Of) v Secretary of State for Levelling Up, Housing and Communities [2022] EWCA Civ 1059 Lord Justice Coulson said there were three reasons why this was now an academic appeal.

“First, there is now no lis between the appellant and the respondent. His claim against Camden, which existed at the time of the original hearing before the judge, has since been compromised. No-one was able to say that there was any residual right or claim available to the appellant which could only be satisfied by the continuation of these proceedings.

“Secondly, whatever the position in July 2021 (which is what this claim goes to), the policy towards rough sleepers has continued to evolve. The most recent examples are the Protect and Vaccinate policy in December 2021 and the next stage of the RSI programme from April 2022. These proceedings do not, therefore, appear to serve any useful or relevant purpose for either rough sleepers or local authorities now, and Mr Burton [counsel for the appellant] did not suggest otherwise.

“Thirdly, even taking the appellant's claim at its highest, there is now no remaining issue between the parties. The challenge centred on an alleged failure of transparency: the breach of the duty to publish when the 'Everyone In' policy came to an end. But, even assuming in the appellant's favour that there was such a duty, it was in my view met by the press release relating to Protect and Vaccinate, identified in paragraph 11 above. That made plain that, as the Government's response to the pandemic continued to evolve, 'Everyone In' had come to an end, but its success was now being built on by other initiatives.

“So, to the extent that 'Everyone In' was capable of being treated as a separate and standalone policy (which the judge said was not the case), it was publicly announced on 20 December 2021 that it had come to an end. The alleged duty of transparency/publication had therefore been complied with. Mr Burton properly accepted that, if that was the court's view of the press release, this appeal was indeed academic.”

Lord Justice Coulson concluded that the court should not exercise its discretion to hear the appeal anyway. This was “because there is no pure point of law here of the kind identified in Salem. Any question of law in the present appeal is irredeemably mired in the judge's multi-faceted evaluation.”

He added that “this was not an appeal which gives rise to a simple or clear-cut issue of law, like the construction of a statute. Neither is this an appeal where scores of other cases are waiting for the outcome of the abstract issue identified by Mr Burton.”

The Court of Appeal judge said the absence of an impugnable decision and any sustainable claim for relief supported the conclusion that the appeal should be dismissed.

Lady Justice Asplin and Lord Justice Lewison agreed.