Gjini, R (on the application of) v London Borough of Islington

In judicial review proceedings, an applicant must identify and evidence the case advanced, particularly where inconsistent alternatives are relied on. A point not properly raised below will not ordinarily be permitted for the first time on appeal where this would be unfair to the public authority. The court must decide the matter on the evidence properly before it and will not speculate about the value of benefits in kind. Later policy changes may render challenges to an earlier policy overtaken by events.

The appellant, an asylum seeker, challenged the respondent local authority’s reduction of subsistence payments by the amount of child benefit and disputed the rationality and application of the authority’s policies. Owen J dismissed the judicial review application on 24 January 2002.

After judgment, the authority reviewed its scheme and changed the rates. Permission to appeal was granted without disclosure of those developments. By the hearing, the appellant abandoned the other grounds and sought only a recalculation on the basis that the former 72 per cent policy was lawful but had not been properly applied. The central issue was whether that point could properly be pursued on appeal.

1. Appeal dismissed unanimously. The appellant could not pursue the recalculation point for the first time on appeal. The amended grounds included it only as an alternative, the supporting evidence did not address it, the authority had answered it in evidence, and no evidence in reply had been filed. The material produced at the hearing below did not establish the relevant income-support rate or value the benefits in kind. It would therefore be unjust to the authority to permit the point to be argued on appeal. [2003] EWCA Civ 558, paras 23–24.
2. Applicants for judicial review must state clearly in the detailed grounds and facts relied on what case they advance, especially where inconsistent alternatives are pleaded. The appellate court should not determine the legality of a later policy where no decision on that policy was under appeal. [2003] EWCA Civ 558, paras 23–25.
3. On the assumed hypothesis that the 72 per cent policy was rational and lawful, the appellant had to establish that the authority failed to implement it. The court declined to speculate about the value of benefits supplied in kind. The evidence did not establish non-compliance, and the Vice-Chancellor concluded that the authority had discharged its duty under regulation 5 of the Asylum Support (Interim Provisions) Regulations 1999. [2003] EWCA Civ 558, paras 25–28.
4. Clarke LJ dismissed the appeal on the narrower procedural basis that the point had not been the appellant’s case below and had become irrelevant on Owen J’s reasoning. He considered both parties’ evidence on the figures unsatisfactory and would have remitted the matter for clarification if the issue had otherwise required determination. Kay LJ agreed with the Vice-Chancellor’s judgment and reasoning. [2003] EWCA Civ 558, paras 29–36.
5. The failure to disclose the later review and increased payments to the judges granting permission was a serious breach of the duty of enquiry and disclosure in a without-notice judicial review application. The later developments meant that most grounds had been overtaken by events. [2003] EWCA Civ 558, paras 17–20, 35.

• Court of Appeal (Civil Division): Appeal from Owen J dismissed. The court held that the only point pursued on appeal had not been properly advanced below and could not fairly be introduced at the appellate stage. [2003] EWCA Civ 558, paras 1, 21–36.
• Queen’s Bench Division, Administrative Court and Divisional Court: Owen J dismissed the application for judicial review on 24 January 2002, finding no proper basis for intervention in the authority’s subsistence assessment. The citation of that decision was not stated in the judgment.