Mohamed v The Local Safeguarding Children's Board for Islington

A claim for judicial review may become academic when the public body has agreed to take the very step sought. Whether an academic claim should nevertheless proceed is a discretionary decision for the first-instance judge, and permission should not be granted without an arguable error of law. The agreement may itself create public-law duties and leave separate remedies if it is not honoured. Delay is also discretionary. An appellate court will not interfere where the factual basis was understood and no arguable unreasonableness is shown. Where these grounds dispose of the application, the court need not resolve an underlying statutory-construction issue, although it may express an additional view on its arguability.

The claimant sought permission to apply for judicial review of a local safeguarding children board's failure to undertake, or exercise its discretion to undertake, a serious case review after the death of her seven-year-old daughter. Mitting J refused permission, citing delay, the absence of any useful purpose, and an untenable construction of neglect. Cobb J refused the renewed application in a judgment reported at [2014] EWHC 3966 (Admin), holding that the claim had become academic after the council agreed to conduct a serious case review and declining to extend time. Lewison LJ refused permission on the papers. The renewed application concerned the academic nature of the claim, delay, and whether neglect could include a failure to rehouse a family despite a known risk to a child.

Lord Justice Burnett refused the renewed application for permission to appeal.

1. Academic claim. The claim sought to secure a serious case review. The local authority had agreed to conduct one. That agreement generated public-law duties, and separate remedies would probably be available if the authority failed to honour it. Since the focus of the claim was to secure the review, the claim had become academic. Whether an academic claim should nevertheless proceed was a matter for the first-instance judge's discretion. Cobb J's extensive analysis disclosed no conceivable arguable error of law. That was sufficient to dispose of the application.
2. Delay. The decision whether to extend time was also discretionary. Two High Court judges had concluded that delay was a bar. The claimant did not suggest that, once the factual position was correctly understood, their decisions could be impugned as unreasonable. There was no arguable basis for interference.
3. Construction of neglect. It was unnecessary to decide the statutory-construction issue. Nevertheless, if it had been necessary, Burnett LJ agreed with Mitting J and Cobb J that neglect was not broad enough to encompass the alleged failure to rehouse the family. He was not persuaded by the submission based on J, R (on Application of) v Worcestershire County Council Equality of Human Rights Commission Intervening [2015] 1 WLR 2825. This was an additional, non-essential observation.

The renewed application was therefore refused.

1. Court of Appeal (Civil Division). Lewison LJ refused permission on the papers. On renewal, Burnett LJ refused permission: [2015] EWCA Civ 1162.
2. High Court of Justice, Queen's Bench Division (Cobb J). Permission was refused on 12 November 2014; judgment was handed down on 27 November 2014 at [2014] EWHC 3966 (Admin). The claim was treated as academic, and an extension of time was refused.
3. High Court of Justice. Mitting J had previously refused permission on 27 June 2014 on grounds including delay, lack of useful purpose, and the proposed construction of neglect.