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

A challenge to a local authority’s failure to decide a request for accommodation pending review becomes untenable once the authority makes the decision. The court may treat the claimant’s response to an application to discharge interim relief as an informal amended challenge where formal amendment would serve no useful purpose. The authority has a very broad discretion when deciding whether to provide accommodation pending review. The considerations identified in R v Camden London Borough Council ex parte Mohammed are not exhaustive. Mere arguability of the underlying appeal is insufficient; judicial review intervention is exceptional. An acknowledged factual error will not establish an unlawful exercise of discretion without a sufficiently strong prospect of success on review.

The claimant sought judicial review of the London Borough of Islington’s alleged failure to decide promptly whether she should receive accommodation pending review of a Housing Act 1996 section 184 decision that she was homeless and eligible for assistance but not in priority need.

Interim accommodation was ordered at an earlier hearing held without the local authority being notified. The authority later made a decision refusing accommodation pending the review and applied to discharge the injunction and set aside permission. The claimant argued that the later decision was arguably unlawful and that accommodation should continue until the review outcome. The central issues were whether the original claim remained live, whether the later challenge required formal amendment, and whether the authority had unlawfully exercised its discretion.

1. Disposition. The original claim was no longer sustainable because the alleged failure to decide had been remedied. The proceedings were treated as being before the court for full hearing, the claim was dismissed, and the interim injunction was discharged.
2. The claimant’s response to the discharge application effectively raised a further challenge to the decision of 28 April 2008. Although no formal amendment had been made, requiring one would have been a waste of time because both parties had addressed the merits. The court therefore considered that challenge.
3. The authority’s discretion concerning accommodation pending review was very broad. In R v Camden London Borough Council ex parte Mohammed, the considerations relating to the merits, new material and personal circumstances were not exhaustive. The Court of Appeal’s decision in R v Brighton and Hove Council ex parte Nacion established that arguability of the underlying appeal, by itself, gave no basis for judicial review. Intervention would be justified only in exceptional cases.
4. The acknowledged error concerning the sister’s period of full-time education did not provide sufficiently strong prospects of success on review to demonstrate an unlawful exercise of discretion. The authority had considered the dependency evidence, the sister’s circumstances, the absence of clear evidence concerning support by the mother, and the relationship between the sisters. The court found no arguable error of law in the decision to refuse interim accommodation.
5. Costs were ordered in favour of the local authority, not to be enforced without leave of the court. The injunction was discharged with effect from 19 May 2008.

Not an appeal. The judgment determined the claimant’s judicial review claim and the local authority’s application to discharge interim relief.