Judicial review, standing and interest in the outcome

A recent ruling has confirmed that applicants for judicial review must have a sufficient interest in the relief sought to have standing to bring the claim, write Sarah Salmon and Joshua Swirsky.

In R(MA) v LB Croydon the court had to consider an application by C1 (who was being investigated for dishonestly applying for assistance under s17 of the Children Act 1989 on behalf of C2) that further investigation should be held unlawful where the local authority had granted the relief with knowledge of the dishonesty.

In addition to this primary relief C1 challenged three aspects of Croydon’s procedures. These were:

• the alleged practice of Croydon of taking into account on a s17 assessment of a person’s failure to attend an interview conducted by the fraud investigation team,
• the flow of information between the children’s services department and the fraud team, which potentially did not comply with the PACE safeguards (in particular it was said that an interview with the children’s services department was not held under caution), and
• the contents of a leaflet given to persons being investigated by Croydon.

Chamberlain J refused permission on a renewed application for judicial review and stressed the importance of claimants having sufficient interest in the outcome of the claim as required by s31(3) of the Senior Courts Act 1981. Pursuant to paragraph 6.1 of the Practice Direction (Citation of Authorities) (Sup Ct) [2001] 1 WLR 1001 the judge directed that his judgment may be cited in future on the basis that the discussion on standing may be useful.

Local authority powers to prosecute

All local authorities have a statutory right to conduct legal proceedings derived from s.222(1)(a), Local Government Act 1972.

(1)     Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area –

(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name

This section gives local authorities the right to bring prosecutions (and sometimes defend them).

A local authority’s power to investigate as a precursor to deciding to prosecute or not derives from s.1(1), Localism Act 2011 and ss. 101-111, Local Government Act 1972.

In R (Qualter) v Crown Court at Preston [2020] 1 WLR, the Divisional Court rejected the submission that the expediency test that derived from s.222 of the 1972 Act applied to an investigation as opposed to a prosecution (or other legal proceeding): see [56]-[57]. It was also held that “the power to investigate necessarily carries with it a broad ambit of discretion, even broader than the discretion to prosecute”: at [66].

While a decision to investigate by a local authority is open to a rationality challenge, the hurdle which a claimant would have to get over to succeed is even higher than in the case of a challenge to a prosecution: see Qualter at [67].

In Qualter at [71] it was held that a local authority was entitled to carry out an investigation to decide whether it had a reasonable belief or there was a reasonable possibility that the investigation might lead to a prosecution.

No recourse to public funds and s.17 of the Children Act 1989

A person who has no recourse to public funds (NRPF) is prima facie not entitled to assistance under s.17 of the Children Act 1989 by reason of paragraph 1 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Although services could be provided to a child, they cannot be provided by a local authority if the effect would be to provide them to the child’s parents as well.

However, paragraph 3 of Schedule 3 does allow services to be provided if the failure to provide them would amount to the breach of a Convention right. A breach of a Convention right would occur if a person would be destitute but for services being provided under s.17, Children Act 1989, see MN v LB Hackney [2013] EWHC 1205 Admin.

In NRPF cases where the family are assessed to be facing destitution local authority support effectively becomes the last resort. In such circumstances the person seeking the services from the local authority has an obligation to provide as much information as possible and to be truthful when giving that information, see, for example, R(O) v LB Lambeth [2016] EWHC 937 Admin at [13]-[14] and [18]-[19].

Factual background

C1 is a Nigerian national and the mother of C2. At the time she approached Croydon as homeless and destitute, and issued her claim for judicial review, she had NRPF. Following her application Croydon made enquiries about the information provided. These revealed that C1 had potentially given a false address and dishonest information about being made homeless. Croydon’s fraud team then began its investigations.

Croydon decided not to accommodate the claimants pursuant to section 17 in the interim, however, interim relief was granted by Chamberlain J. That first judicial review was settled by consent.

In May 2020 the s.17/Human Rights Act assessment was completed. Although the social worker highlighted the concern that C1 was prepared to give false information in support of her application and it was noted that the fraud investigation was ongoing, it was concluded that C2 should be treated as a child in need and assistance given to the family under s17.

It became clear during the course of proceedings that C1 accepted she had been dishonest. C1’s explanation was that she was indeed destitute but did not want to get the person she was actually staying with into trouble. Other issues also came to light which Croydon wished to investigate in relation to alleged fraud.

The fraud investigation

Chamberlain J found that ground one alleging that Croydon was acting outside its powers in continuing with its fraud investigation against C1 was not arguable as the following hurdles cannot be surmounted.

1. The decision under challenge is Croydon’s decision to conduct a fraud investigation and all Croydon needs to hold at this stage is a reasonable belief (or that there is a reasonable possibility) it might result in a prosecution; this is essentially the test derived from Qualter.
2. Croydon does not have to accept the explanation given by C1 and can look into whether that version is true.
3. Croydon was entitled to investigate other matters which had arisen, namely C1’s relationship with C2’s father and concerns it had about C1’s failure to disclose details of her support network.
4. Claimants cannot rely on a completed s.17 assessment to impugn the decision to investigate alleged fraud. Croydon was entitled to complete its fraud investigation before its reached a decision as to whether C1 had given an explanation for her admitted dishonesty that would mean the test for prosecution in s222 of the Local Government Act 1972 was not met.
5. The Code of Conduct for Prosecutors does not help the claimants as that is relevant to whether or not there should be a prosecution. Croydon cannot take that decision before investigating the facts.

Standing

The claimants no longer needed to rely upon section 17, Children Act 1989 as C1 has leave to remain without any restriction on access to public funds. C1 had agreed to be interviewed by the fraud investigation team. Therefore there was no question of a refusal being taken into account on her s17 assessment. She had also managed to obtain legal advice with regard to the fraud investigation despite the alleged shortcomings in the leaflet.

The claimants accepted that the above grounds were no longer of direct benefit to them although ground three, relating to the flow of information, could be of benefit to them for the purposes of the ongoing fraud investigation. In relation to grounds two and four, the claimants submitted that they may find themselves again needing to rely on s.17 support and this would still be the case until C2 turned 18.

In relation to ground three, the Judge accepted the claimants retained standing but declined to give permission on the basis they had a better alternative remedy. After the investigation was completed any alleged unfairness would crystalise and could be dealt with as part of the criminal trial process. Magistrates and judges have ample powers to exclude any evidence if it is deemed unfair because of a failure to comply with PACE. Indeed, that was the proper forum for such a challenge.

As to the other grounds, the judge held that the claimants’ arguments as to standing were speculative and tenuous. The case on whether or not there was a practice or procedure as alleged was thin and based on two equivocal answers to an FOI request that the failure to attend a voluntary interview “possibly” could be taken into account. To the judge’s mind this was an insufficient basis for asserting there was a policy or practice capable of challenge. As to both of these grounds relief could not benefit the claimants in any way.

Reiterating what he had said in his recent judgment in JS v Secretary of State [2021] EWHC 234 Admin, which also considered the issue of standing, Chamberlain J stressed the importance of claimants at the permission stage showing ‘sufficient interest’ in the outcome as required by s31(3) of the Senior Courts Act 1981. Claimants could not bring themselves within that definition on the facts of this case.

Consequently, permission was refused on all grounds.

Sarah Salmon and Joshua Swirsky are barristers at Field Court. They acted for the the successful local authority.