McKenzie, R (on the application of) v London Borough of Waltham Forest

A court should not ordinarily determine an academic judicial review. It may do so in the public interest only where there is good reason, including a discrete point of statutory construction likely to arise in many similar cases. The issue must not require detailed consideration of the facts.

Where homelessness depends on whether it is reasonable for an applicant to continue occupying accommodation, the statutory inquiry is fact-sensitive. General declarations cannot replace Parliament’s requirement for an individual assessment by imposing an automatic rule or a presumption displaced only by exceptional circumstances.

The claimant, a pregnant woman accommodated in a mixed hostel, challenged the local authority’s refusal to treat her as homeless and provide interim accommodation before the birth of her child. The authority subsequently provided accommodation, and the live dispute was resolved.

The claimant nevertheless sought judicial review, answers to seven general questions and declarations concerning pregnant applicants, shared facilities, maternity and the authority’s duties under the Housing Act 1996. The central issue was whether the court should decide those now-academic questions to provide guidance for future cases.

1. The academic claim was not determined on its merits. The claimant’s application had become academic because she had been accommodated in a flat about which no live complaint remained. The court considered whether the public-interest exception justified continuing the claim.
2. The ordinary rule is that courts resolve live and practical disputes rather than hypothetical or academic questions. The authorities recognised that the court may nevertheless hear an academic public-law issue with caution where there is good reason in the public interest. The relevant example is a discrete point of statutory construction, not requiring detailed factual analysis, where many similar cases exist or are anticipated.
3. The court adopted the two conditions identified in R (ex parte Zoolife International Ltd. v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin)): the claimant had to show both a large number of similar cases, existing or anticipated, and a discrete issue not requiring detailed consideration of the facts.
4. Neither condition was satisfied. There was no evidence, beyond assertion and anecdote, that many similar cases existed or were anticipated. Further, section 175(3) of the Housing Act 1996 requires the reasonableness of continued occupation to be assessed by reference to all relevant facts concerning the particular applicant.
5. That fact-sensitive statutory test made general guidance unsafe. The proposed declarations would replace Parliament’s broad reasonableness inquiry with an automatic rule treating specified categories of pregnant women and new mothers as homeless, subject only to exceptional circumstances. Parliament had not enacted such an exception or presumption.
6. The court therefore declined to determine the amended academic questions and declarations. The judgment does not record a separate final order on the underlying merits.