Onubogu-Emeka-Opara, R (on the application of) v London Borough of Sutton

On an application for interim relief in judicial review, the court must consider whether there is a serious issue to be tried and where the balance of convenience lies. In an appropriate case, that assessment may adopt a precautionary approach to serious and evidenced risks to a claimant’s health or physical integrity. A local authority’s proposed interim accommodation may be rejected where the evidence does not establish that the claimant’s assessed needs, particularly significant medical risks, will be adequately managed. A modest additional cost does not necessarily outweigh substantial unresolved safety concerns. The court must also consider the risk that interim relief may predetermine the substantive issue, while deciding the application on the evidence available at the interim stage.

The claimant, a 22-year-old woman with severe epilepsy, learning difficulties and communication difficulties, sought interim relief pending an application for permission to bring judicial review proceedings. She was due to leave St Piers college and preferred accommodation at Independence Homes. The defendant local authority proposed an interim placement at the Grove, operated by Regard Partnership, pending a possible permanent placement at Washington Road.

The central issues were whether the proposed placement could safely manage the claimant’s epilepsy, whether Independence Homes was suitable, and whether its greater cost should affect the interim decision.

1. Interim relief. The court accepted that the applicable approach was whether there was a serious issue to decide and where the balance of convenience lay. The claimant’s application raised a serious issue.
2. Precautionary approach. In the particular circumstances, the balance-of-convenience assessment properly included a precautionary approach to the serious risks associated with the claimant’s epilepsy. The court was concerned that the local authority had reached its position only shortly before the hearing.
3. Evidence of suitability. The court could not be satisfied that the Grove was appropriate. There was no proper evidence of the staff’s training or of how the placement would manage the claimant’s severe and complex epilepsy. The Grove was accepted to be non-specialist, whereas Independence Homes was a specialist epilepsy provider.
4. Unresolved suitability concern. The local authority’s concern that Independence Homes might place insufficient emphasis on independent living was noted but could not properly be resolved at the interim stage. It was not sufficient, on the evidence, to establish that Independence Homes was unsuitable.
5. Cost and disposition. Independence Homes was more expensive, but the difference was not sufficiently significant to outweigh the serious safety concerns and lack of evidence concerning the Grove. The claimant was therefore to go to Independence Homes as an interim placement. The duration of that relief depended on the substantive hearing or further evidence warranting reconsideration.

The judgment records that Sullivan J had ordered an oral hearing for interim relief by 23 July 2004. No appeal or earlier substantive decision is stated.