T H E QUEEN v (On the Application of PETER AYEIDOGBON) [2002] EWCA Civ 49

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE NEWMAN)
[2002] EWCA Civ 49Case No C/01/1882Venue Royal Courts of Justice, Strand, London WC2A 2LL, Thursday 17 January 2002
Between
T H E QUEEN(On the Application of PETER AYEIDOGBON)THE LONDON BOROUGH OF SOUTHWARK
Before
Lord Justice BuxtonMR A RIZA QC and MR A KAIHIVA (Instructed by Messrs John Itsaguwede & Co, London, SE15 4TL)appeared on behalf of the Applicant.The Respondent did not attend and was not represented.Date 17 January 2002

LORD JUSTICE BUXTON:

This

[1]is a renewed application for permission to move for judicial review in respect of an alleged decision of the London Borough of Southwark, the matter having been before Newman J on 10 August 2001 when he refused permission. It is renewed before me today by Mr Riza QC. I declined to grant permission for the matter to be proceeded with in this court in a written ruling dated 6 December 2001. I made that ruling after I had the benefit of seeing a skeleton argument from Mr Riza, dated 28 November 2001, in which certain matters were drawn to the court's attention which had not been before Newman J.[2]It was extremely unfortunate that the solicitors instructing Mr Riza did not show him a copy of my observations. One would have thought it would be self-evident that counsel would at least be shown those observations, however unimpressed by them the solicitors, or in the event counsel himself, may have been. Nonetheless, Mr Riza, having seen my comments, cooperatively said he was able to continue to move the application before me.[3]The point is very short. The applicant, Mr Aiyedogbon, is an asylum seeker. Over a period of time he has been engaged in seeking support for himself and his family from the London Borough of Southwark. The local authority was dissatisfied with the information that it received from the applicant as to his situation, income and so forth. After considerable correspondence (during the whole of which the applicant was advised by the solicitors who currently represent him, because it was to them that the London Borough of Southwark wrote over a period of over one year), the Borough indicated, after making numerous inquiries, that it was not satisfied with the information with which it had been provided. On 2 October 2000 it wrote a letter to the solicitors indicating that fact. The letter concluded with the following passages:
"The situation was left with Mr Aiyedogbon being advised to contact his solicitor further for advice and being told that Social Services would hold his claim in abeyance. Mr Aiyedogbon was advised that Social Services would wait to hear from him if he wanted to continue the claim, and requested him to provide details of his accommodation and full bank account details. There has been no further contact from your client since this time and Social Services' file has therefore been closed. In the circumstances, we do not accept your contention that Social Services are not fulfilling their duties to your client, and reiterate that Social Services remain willing to assess your client should he wish to continue his claim."
[4]That elicited a response two weeks later from the solicitors giving further information in respect of their client and, in effect, contending that he had indeed provided all the information that he had available, and that, in so far as matters critical to him had been set out in the letter, they were unfounded and would be the subject of evidence in forthcoming proceedings.[5]No steps were taken by the applicant or by his advisers to pursue the matter so far as proceedings were concerned. The present proceedings were not issued until 23 March 2001, some five months after the letter of which complaint is made. They asked for relief in respect of three decisions:(i) the decision to evict the applicant from certain property in which the council had an interest;(ii) the decision not to rehouse him; and(iii) "The decision of the defendant, which is undated and continuing, to hold the claimants's case in abeyance despite the representations made by the claimant to the contrary."[6]No submissions have been made to me or were made to Newman J with regard to the first two of those matters. The third point centres on the letter that I have just quoted, even though the decision is, in the application, said to be undated. As is clear from the face of its letter, the local authority closed its file. It did not say in that letter that it had either rejected the applicant's application or that it would not consider it further, but rather that it required further cooperation on his part. Mr Riza says that was an unreasonable view on their part because his client had indeed cooperated, and continues to try to cooperate.[7]I am quite satisfied that on the face of this matter, as was Newman J, that the local authority was entitled to take the view that it would close the file. I emphasise that it is clear from the letter as a whole that that did not mean that the applicant was never again going to be considered for relief. The local authority took the view that it did not have the information that it required. In my judgement, that was a decision that was open to them to take, administratively, in the light of the matter before them, not reviewable by this court.[8]Further, as I have pointed out, this application was seriously out of time. There is no explanation for that. It is contended that there was a continuing failure on the part of the local authority to make any decision at all: therefore the applicant can at any time complain of that continuing breach. There are two difficulties about that. The first is that the complaint centres, as Mr Riza makes it clear in paragraph 4 of his skeleton to which I have just referred, or what was said in the letter of 2 October 2000, where this decision effectively crystallised. Secondly, the complaint now is that the respondent has made no decision at all; in other words, it has refused to make a decision. It seems to me that that is not the correct analysis of the facts. The defendant has said that, rightly or wrongly, it needs further information before it can take the matter forward. I cannot agree that that is a continuing breach, as implied by Mr Riza. A decision was taken in October 2000 and at the moment, the local authority is not minded to revisit it.[9]Mr Riza says the problem his client has is that without "a decision" he cannot seek relief or appeal under the provisions as they now exist in section 95(1) of the Immigration and Asylum Act 1999 together with section 103(1). I make no comment about that. It may be that further advice should be given to the applicant on that point. I am clear, however, that there is no ground for saying that the decision of the 2 October 2000 should be reviewed in this court, even if it were open to the court to do so in view of the delay.[10]For those reasons therefore this application is dismissed.

Order

Application dismissed.

Cited in 1 later judgment