Moore & Ors, R (on the application of) v Care Standards Tribunal & Anor

Judicial review proceedings are not necessarily academic merely because the claimant’s success may not directly determine present rights. The court must consider whether the challenged decision could produce a practical benefit, including where the underlying facts, such as the existence of tenancies, remain arguable.

Even where proceedings are academic between the parties, the court may allow them to continue in the public interest. That discretion must be exercised cautiously, but may be justified by an important freestanding point of statutory construction, other similar proceedings awaiting the outcome, the absence of an alternative appeal route, and the general importance of the issue.

The claimants sought judicial review of a decision of the Care Standards Tribunal concerning the significance of alleged tenancies in an Alternative Futures service scheme and the Tribunal’s approach to the reality of service users’ choices. The Tribunal had not expressly determined whether valid tenancies existed, but had treated their existence as non-determinative or of no critical importance.

The court considered whether the judicial review would be academic, particularly if the alleged tenancy arrangements did not exist or were legally ineffective. It also considered whether the issues should proceed notwithstanding any academic character, given their potential relevance to other proceedings and the absence of an appeal route for Mr Moore.

1. Permission and academicity. Permission to apply for judicial review was granted. The challenge was arguable because the Tribunal may have erred in law by treating the existence of tenancies as non-determinative, without clearly deciding whether valid tenancies existed or explaining the basis on which it proceeded.
2. The proceedings were not presently academic. It was arguable that valid tenancies existed, including through the documents, periodic tenancies or specifically performable agreements for leases. If the claimants succeeded on the judicial review, that success could therefore have practical significance.
3. The court adopted the approach in R v Secretary of State for the Home Department, ex parte Salem: the court has a discretion to hear public-law proceedings that have become academic, but that discretion must be exercised cautiously and requires a good reason in the public interest.
4. Even if success would ultimately prove academic, the case should proceed. Relevant considerations included the possibility of valid tenancies, the case’s relevance to other Tribunal appeals or proceedings, the claimants’ inability to appeal the Tribunal decision, the freestanding statutory-construction issues, and the general importance of those issues. The court indicated that it would be reluctant to determine factual disputes about the existence of tenancies.
5. The service charge, forming part of the rent as defined in the alleged agreements, might be relevant to the reality of the choices open to the claimants. The appeal by Mr Moore was stayed, with no further steps without permission, and was to be listed with the judicial review proceedings. The Commission for Social Care Inspection was substituted as second defendant under section 102 of the 2003 statute.

The judgment records that the claimants challenged a decision of the Care Standards Tribunal. The court granted permission for judicial review and directed that Mr Moore’s separate appeal be stayed pending disposal of the judicial review proceedings.