ZLL (R on the application of) v Secretary of State for Levelling Up, Housing and Communities

An academic public-law appeal should be heard only where a good public-interest reason justifies doing so. The discretion is exercised cautiously, ordinarily for a discrete and recurring legal issue that can be decided without detailed factual evaluation. A supposed question inseparable from a lower court’s multifaceted assessment of an evolving policy does not qualify. Judicial review also requires an identifiable decision by the public authority. A pre-action response or defence is not itself a proper target, and a quashing order cannot be granted without an impugnable decision. Relief not pleaded or formulated cannot ordinarily be introduced for the first time on appeal, particularly where a proposed declaration would be conditional and lack practical utility.

ZLL, a rough sleeper, challenged the alleged ending of the Government’s ‘Everyone In’ policy. He contended that the policy imposed a blanket requirement to accommodate all rough sleepers and that its termination had not been made public. The High Court dismissed the claim, holding that the policy did not confer an open-ended entitlement and that no duty of publication arose: [2022] EWHC 85 (Admin).

By the time of the appeal, ZLL’s accommodation claim against Camden had been settled and government policy had continued to evolve. The Court of Appeal considered whether the appeal was academic, whether there was an identifiable decision suitable for judicial review, and whether any sustainable relief remained available.

1. Disposition. The appeal was dismissed unanimously. It was academic, and the claim was fundamentally flawed because no impugnable decision or sustainable relief had been identified.
2. Academic appeal. The governing approach was stated in R v SoS for the Home Office ex parte Salem, [1991] 1AC 450 (HL). The discretion to hear an academic public-law appeal must be exercised cautiously and requires a good reason in the public interest. The Court of Appeal also referred to Rahoune v London Borough of Islington, [2019] EWCA Civ 2142, and Hutcheson v Popdog Limited (Practice Note), [2012] 1WLR 782. No such reason existed. There was no remaining lis, later policy developments meant that the proceedings served no useful present purpose, and the alleged publication duty had, in any event, been satisfied by the public announcement of Protect and Vaccinate.
3. The supposed pure point of law was inseparable from the judge’s multifaceted evaluation of the nature, scope and effect of an evolving policy. The judge had not drawn the alleged hard-edged distinction between prescriptive guidance and guidance relevant to discretionary decision-making. His observations on a duty of conformity were not an independently determinative issue, since the claim depended on the alleged absence of a duty of publication.
4. Judicial review target. A claimant must identify a decision by or on behalf of the public authority capable of being challenged. The pre-action response and defence could not themselves constitute such decisions. The evolving nature of the policy reinforced the need to identify the particular policy change challenged. The claim could not be used belatedly to challenge an earlier modification, such as the May 2020 change, which had not been pleaded.
5. Relief. A quashing order was unavailable because no decision ending the policy had been identified. A declaration had not been claimed or formulated, and it was inappropriate to consider such relief for the first time on appeal. A high-level conditional declaration would have lacked utility and would not have resolved the issues raised.

• Court of Appeal (Civil Division) dismissed the appeal as academic and for the absence of an impugnable decision and sustainable relief: [2022] EWCA Civ 1059.
• High Court, Queen’s Bench Division (Administrative Court) dismissed the judicial review claim: [2022] EWHC 85 (Admin).