Dumbuya, R (on the application of) v London Borough of Lewisham

Where a judicial review has become practically academic, the court may still decide costs by examining the apparent merits, while keeping proportionality and the costs involved in view. A duty under section 190 of the Housing Act 1977 does not require a formal application. It arises where the local housing authority is satisfied that the applicant is homeless, eligible for assistance and intentionally homeless. A statutory appeal to the County Court does not necessarily make judicial review premature. Where the authority has not indicated that it will consider temporary accommodation pending the appeal, the judicial review may properly proceed.

The claimant had been accepted as owed the full housing duty under section 193 of the Housing Act 1977. After she was evicted from accommodation provided under that duty, she sought accommodation from the defendant authority. The proceedings included interim relief and permission for judicial review.

The claimant later pursued a statutory County Court appeal. The review decision was withdrawn and a fresh decision was made, leaving the judicial review substantially academic. The remaining issue was whether the defendant should pay the claimant’s costs, applying the approach in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 258.

1. The court ordered the defendant to pay the claimant’s costs. The substantive judicial review had become academic, but it was appropriate to examine the apparent merits when deciding costs.

2. The principal issue was whether a new duty arose under section 190 of the Housing Act 1977 after the defendant’s section 193 duty had ceased because the claimant had become intentionally homeless from accommodation provided under that duty. Section 190 did not prescribe any particular formality or require a specific application. On the material before Mitting J, the claimant’s case was towards the obvious end of the merits spectrum.

3. The authority’s prematurity argument also failed. Although the claimant had a statutory right of appeal to the County Court and could seek temporary accommodation pending that appeal, the authority had not told her that it would consider such an application. In those circumstances, it could not properly be said that judicial review was premature.

4. The court applied the proportionality-based approach in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 258. The case was sufficiently clear on the merits to justify a costs order in the claimant’s favour. The order included the costs of the hearing, with detailed assessment of the claimant’s publicly funded costs on the standard basis in default of agreement.