ZLL (R on the application of) v SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

The common-law duties of prescription, publication and conformity do not attach to every government policy or initiative. They arise where broad discretionary powers require prescriptive policy guidance setting decision-making criteria to secure consistency, avoid arbitrariness and permit informed representations and challenge. Government communications about a pandemic response may be important public-law considerations without amounting to such guidance. An exhortatory, context-specific and fluid call to action, lacking definitive and open-ended criteria, did not create an enforceable entitlement to accommodation or trigger duties to publish changes or to act in conformity. A duty to consult a stakeholder charity likewise requires more than regular engagement and significant impact; absent a legitimate expectation or other trigger, meetings and the need for advance notice do not suffice.

The claimant, a rough sleeper with no recourse to public funds, sought judicial review of the Secretary of State’s alleged decision to end the Everyone In initiative. He relied on public statements and litigation documents, particularly the pre-action response and Defence, arguing that an unpublished change departed from published policy and required prior consultation with Shelter. The first ground concerned the common-law duties of conformity and publication. The second alleged a duty to consult arising from stakeholder engagement, the significance of the proposed change and Shelter’s representative role. A separate challenge to Camden London Borough Council’s accommodation decision had been stayed pending this claim.

1. Outcome. The claim for judicial review was dismissed. Both grounds failed.
2. Public-law duties. The duties of prescription, publication and conformity are contextual. They arise where broad discretionary powers require criteria to secure consistency, guard against arbitrariness, enable informed representations and facilitate informed challenge. They do not apply to every government policy or initiative with practical effects. Where prescriptive guidance is issued externally, the decision-maker must ordinarily follow its published policy unless there is good reason to depart, and affected individuals have a correlative entitlement to a decision under it. These principles were drawn from R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 and Mandalia v Secretary of State for the Home Department [2015] UKSC 59.
3. Everyone In. The communications were exhortations or a call to action during a changing public-health emergency. They were linked to particular phases, funding arrangements and the Rough Sleeping Initiative. They did not provide a guidance document containing definitive, open-ended decision-making criteria. Their references to individual assessment, statutory limits, prioritisation, emergency accommodation and move-on accommodation were inconsistent with an enduring all-inclusive scheme.
4. Ground one. The alleged positions in LOR23 and Defence64 therefore did not unlawfully depart from or discontinue prescriptive published guidance. There was no extant entitlement of conformity and no breach of the duties of conformity or publication. The statutory powers discussed in R (Ncube) v Brighton and Hove City Council [2021] EWHC 578 (Admin) showed that accommodation could in principle be provided lawfully, but did not convert the initiative into prescriptive guidance.
5. Ground two. No duty to consult Shelter arose. Four meetings over a year and regular communications did not amount to the continuous and intense dialogue relied on in R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217 (Admin). There was no legitimate expectation or other trigger of consultation. Shelter’s concerns about numbers and advance notification concerned information and clarity, rather than consultation at a formative stage. Independently, there was no curtailment of a published scheme or conferral of a benefit requiring consultation.
6. Any uncertainty in the Government’s messaging, absent unreasonableness or breach of legitimate expectation, belonged to political and democratic accountability rather than judicial review. The court made an order permitting any application to the lower court for permission to appeal to be made in writing by 4pm on 28 January 2022.

Permission to bring this judicial review was granted by Jay J on 27 September 2021. A separate judicial review of Camden London Borough Council’s decision was stayed pending resolution of this claim.