Ayeidogbon, R (on the application of) v London Borough Of Southwark

A local authority does not act unlawfully merely by closing a support file when it reasonably considers that it lacks necessary information, provided that it remains willing to assess the claimant if the claim is pursued with the required material. Such a decision is not a continuing failure to decide.

A judicial-review challenge must address the decision when it crystallises. An unexplained delay cannot be avoided by characterising an extant decision, which requires further information before the matter can proceed, as a continuing breach.

The applicant, an asylum seeker, sought support for himself and his family from the London Borough of Southwark. After prolonged correspondence, the authority wrote on 2 October 2000 that it was not satisfied with the information supplied, would close its file, and remained willing to assess the applicant if he wished to continue his claim and provided further details.

The applicant commenced judicial-review proceedings about five months later. Newman J in the Administrative Court refused permission on 10 August 2001. The applicant renewed the application before the Court of Appeal, alleging decisions to evict and not rehouse him, and a continuing decision to hold his claim in abeyance. No submissions were made on the first two matters. The central issue was whether the October letter disclosed a reviewable and continuing failure by the authority to decide his support claim.

1. The renewed application for permission to move for judicial review was dismissed. Buxton LJ held that the local authority was entitled, on the information before it, to close the applicant’s file. The letter did not reject the claim permanently or state that no further consideration would be given. It said that the authority required further co-operation and information, and remained willing to assess the applicant if he pursued the claim.
2. The decision was an administrative decision open to the authority. Its view that it lacked the information required was not shown to be one which the court could review on the material presented. The applicant’s assertion that he had co-operated did not establish a reviewable error.
3. The application was also seriously late. The impugned decision crystallised in the letter of 2 October 2000, yet proceedings were not issued until 23 March 2001 and no explanation was provided for the delay.
4. The applicant could not avoid the delay by alleging a continuing failure to decide. The authority had made a decision: it would not take the matter further unless further information was supplied, and it was not then minded to revisit that decision. Buxton LJ made no comment on the applicant’s submission concerning other statutory support or appeal routes.
5. Accordingly, there was no ground for judicial review, whether or not the court could have entertained the challenge despite the delay.

• Court of Appeal (Civil Division): renewed application for permission to move for judicial review dismissed: [2002] EWCA Civ 49.
• Administrative Court (Queen’s Bench Division): Newman J refused permission to move for judicial review on 10 August 2001.