K v Cornwall County Council [2005] EWCA Civ 1815

Case No C1/2005/2050[2005] EWCA Civ 1815
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SULLIVAN )
Venue Royal Courts of JusticeDate Tuesday, 13 December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
Between
KAppellant-v-
Between
CORNWALL COUNTY COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR PHILIP COPPEL (instructed by Follett Stock) appeared for Appellant for The Respondent was not represented and did not attend
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This is an application for permission to appeal, permission having been refused on the papers by Lord Justice Tuckey. It arises in an unusual way.[2]The claimant is now 20 or 21 years of age, and has multiple care needs. When the proceedings began they were in the form of an application for permission to seek judicial review against Cornwall County Council as the statutory body alleged by the claimant to be letting him down. The proceedings were quite protracted, not least because on 17 September 2004 a consent order was made by Mr Justice Charles which involved the adjournment of the application for permission upon undertakings by the Council which was to consider the immediate care needs of the claimant. The central issue is that he has for some time been accommodated in premises known as Boskenneth, and it is said on his behalf that they are wholly unsuitable for his needs.[3]On 31 August 2005, that is almost a year later, the matter came back before Mr Justice Sullivan. On that occasion two applications were being made on behalf of the claimant: first, to restore his application for permission to seek judicial review against the Council and, secondly, an application to add the West of Cornwall NHS Primary Care Trust as a second defendant. It seems that by then the Trust had undertaken responsibility for the claimant although he remained, and still remains, at Boskenneth.[4]The outcome of that contested application before Mr Justice Sullivan was that he refused to join the Trust on the basis that there was an internal review procedure which was available as an alternative remedy. He then refused the application to restore the application as against the Council, saying in paragraph 8 of his judgment:
" ..... there is no basis on which it would be proper to restore the application for permission to apply for judicial review against the Council. Until it is determined whether or not it is the Trust or the County Council who is responsible for providing the claimant's care, that would simply be an academic exercise."
He also urged all parties to see what could be done about providing a change of accommodation.[5]At the completion of his judgment Mr Justice Sullivan was invited by counsel for the Council not only to refuse the application to restore but to dismiss the application for permission to apply for judicial review on the grounds that unless that was done it would be adjourned on an open-ended basis. On behalf of the claimant Mr Coppel resisted that course because the claim form included a claim for damages under the Human Rights Act, and that was still a live issue.

Mr Justice Sullivan then gave a further short judgment in which he said at paragraph 28:

"So far as the issue of damages is concerned, I am satisfied that it would not be right to allow the judicial review proceedings against the County Council to linger on simply for the purpose of keeping alive the putative damages claim under the convention. In particular, given the machinery that was envisaged in the order of 17 September 2004 to deal with that issue, that is to say by instituting a complaint to the Local Government Ombudsman. The authorities demonstrate that the measure of damages that would be given by the court if it found a breach would be broadly the same as the sort of damages that would be awarded by the Ombudsman, albeit formally on a non-binding basis, but in practice awards by the Ombudsman are complied with. Also, it seems to me that the claimant has the ability to make a broader claim of maladministration to the Local Government Ombudsman, which is capable of embracing all the matters about which he might wish to complain under the Convention, and some more."
He therefore dismissed application.[7]The way in which the case is put today, on behalf of the claimant, is that the reasoning of Mr Justice Sullivan proceeded on a mistaken assumption. He did not have in mind, nor it seems did Mr Coppel at that time, Section 26 (6) (c) of the Local Government Act 1974 in which the Ombudsman is prevented from investigating any maladministration in respect of which the aggrieved person has or had a remedy by way of proceedings in any court of law. It follows from that that the alternative remedy reason for Mr Justice Sullivan's decision appears to have been erroneous.[8]I return briefly to the order Mr Justice Charles made on 17 December 2004. It recites certain undertakings given by the Council, and then orders that consideration for the application for permission be adjourned for three months. It continues at paragraph 2:
"If, after 3 months, the only outstanding claim in these proceedings is the claim for damages (a) if the claimant has not instituted a complaint to the Local Government Ombudsman seeking damages arising from the matters raised in these proceedings, permission be refused in relation to the claim for damages."
There was then further provision dealing with the situation that would arise if the claimant had instituted a complaint to the Ombudsman.[9]What happened was that at some time after the consent order was made the solicitor representing the claimant became aware of Section 26 (6) (c) and concluded that it would be a waste of time to apply to the Ombudsman because he would simply reject the claim by reference to Section 26 (6) (c).[10]The question that now arises is how matters should proceed from here. It seems to me that there is, and always has been, a properly pleaded claim for damages. It also seems to me that Mr Justice Sullivan's judgment was delivered without reference to Section 26 (6) (c) and, to that extent, proceeded on a mistaken basis.[11]I have come to the conclusion that the fairest way in which to deal with this matter is to conclude that permission to appeal is appropriate and to deal with it further by this court granting permission to apply for judicial review so as to advance the case, the claim for damages. I approach the matter in this way in the absence of any representation from the Council although, I am told, the Council is on notice of today's hearing. I shall grant permission to apply for judicial review. The matter will then return to the Administrative Court but on the basis that everything about the claim for damages is at large in that jurisdiction.[12]It is not unlikely that the Council will wish to contend that the claimant is locked out by paragraph 2A of the order of Mr Justice Charles. Mr Coppel's answer to that here is two-fold. First, it would be the claimant's case that the Council was in breach of its undertakings to the point that the order in paragraph 2A did not come into effect. Secondly, and alternatively, even if that is so, the order was entered into on a mistake of law by reason of ignorance of Section 26 (6) (c). That argument has difficulties, but it seems to me it ought to be allowed to take place in the circumstances that have now arisen.[13]I have great sympathy with Mr Justice Sullivan in this case because the course he took seems to me to reflect what had been said in this court in Anufrijeva. Unfortunately what was there said about resort to the Ombudsman did not, I think, take explicit account of Section 26 (6) (c), and this problem was always going to arise. It may be that it has arisen in other cases, but I know not, and Mr Coppel has not been able to refer me to anything suggesting it may occur.[14]By way of summary, therefore, I grant permission to apply for judicial review. I return the matter to the Administrative Court.[15]There was a second ground of appeal before me relating to a challenge to Mr Justice Sullivan's order for costs in the court below when he ordered the appellant to pay the respondent's costs of its preparation of its grounds of resistance, not to be enforced without leave of the court, the claimant being legally aided. In the circumstances, as I am effectively quashing Mr Justice Sullivan's decision on restoration, and the application for judicial review is still alive and now post-permission, it must follow that the issue as to costs will be at large until the conclusion of the hearing. I say no more about that.[16]Finally I did suggest at one stage to Mr Coppel that it might be appropriate for there, first, to be a hearing either on adjournment in this court or as a preliminary point in the Administrative Court on the possible effect of paragraph 2 (a). However he has persuaded me that, in the circumstances, if he were to be successful on that argument, it would simply generate a need for two hearings beyond today rather than one. In the interests of saving costs, I have proceeded in the way I have, knowing that the Council is protected by its being able to take whatever point it wishes to take in relation to paragraph 2 (a) in the Administrative Court.

Order

Application granted.