Stephen Sims, R (on the application of) v The London Borough of Hackney [2025] EWHC 2271 (Admin)

[2025] EWHC 2271 (Admin)AC-2025-LON-001216
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice Strand, London, WC2A 2LLDate 5 September 2025
Before
Mr Jonathan Glasson KC
Between
THE KINGClaimantTHE LONDON BOROUGH OF HACKNEYDefendantPartyDefendant
Mr Jeremy Ogilvie-Harris (instructed by Hackney Community Law Centre) for ClaimantMs Emma Godfrey (instructed by London Borough of Hackney Legal Services) for DefendantHearing Hearing date: Thursday 28 August 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 5 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.MR JONATHAN GLASSON KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT:
[1]This is the judgment on a renewed application for permission for judicial review which I heard on Thursday 28 August 2025. The hearing concluded shortly after 4 p.m. and I reserved my decision to give sufficient time for me to consider the arguments that had been advanced.[2]In advance of the hearing the parties each filed skeleton arguments and at the hearing I heard oral submissions from counsel. I am grateful to each of them for their assistance. The claim[3]In his claim form, the Claimant challenged alleged failures by the Defendant to provide decant accommodation in breach of its policies, s.19(3) of the Care Act 2015, ss15 and 19 of the Equality Act 2010 and s.149 of the Equality Act 2010. The claim arises from a breakdown in the lift at his block of flats. The factual background[4]The Claimant is the secure tenant of Flat 11, Greville Court, 2 Napoleon Road, Clapton, London E3. The Defendant is his landlord. The flat is on the second floor of a block of flats and accessed by communal lift and stairs. The Claimant has a number of medical conditions that affect his mobility such that he can only access his flat by using the lift.[5]On 27 March 2025 the lift broke down and it was shut down on 28 March 2025. On 31 March 2025 the Claimant’s solicitor requested that the Defendant provide him with alternative temporary accommodation until the lift was fixed. On 3 April 2025, the Defendant offered to provide the Claimant with accommodation in a hotel. The Claimant has dogs and, although the Defendant had arranged with the hotel that the Claimant could bring his dogs with him, the Claimant would not be able to leave them at the hotel unattended. The Defendant declined to pay for a dog walker. There is medical evidence that indicates that the dogs are a protective factor in managing his mental health difficulties.[6]Following pre-action correspondence, the Claim was issued on 22 April 2025.[7]On 22 April 2025 an application was made for an interim order compelling the Defendant to provide suitable accommodation to the Claimant.[8]The lift at Greville Court was repaired and put back in service on 24 April 2025.[9]On 29 April 2025 Ms Anneli Howard KC, sitting as a Deputy High Court Judge, granted a mandatory interim injunction. Ms Howard’s order required the Defendant to provide the Claimant with suitable temporary alternative ground floor accommodation in Clapton, Homerton, Hackney or nearby local area. It appears that the order was made without sight of correspondence from the parties which informed the Court that the lift had been repaired. Accordingly, on 2 May 2025, Ms Howard granted a stay of her order.[10]Shortly after the issue of the judicial review and interim relief claim, a separate claim was issued in the county court on 14 May 2025. In that claim the Claimant claims damages for breaches of the Defendant’s repairing covenants as well as general damages arising from the lift breakdowns The grounds of challenge[11]Ground 1 alleges that, without good reason, the Defendant did not follow its “Lift breakdown protocol housing procedure” (“the Policy”).[12]Ground 2 alleges that the Defendant unlawfully failed to publish the Policy and its “temporary decant procedure” policy.[13]Ground 3(i) alleges that the Defendant has breached the public sector equality duty provided for by s. 149 of the Equality Act 2010 (“the 2010 Act”), in that the Policy does not provide for an assessment of a disabled person’s housing needs when determining the suitability of decant accommodation.[14]Ground 3(ii) alleges that the Defendant has breached the public sector equality duty by failing to give “sharp focus” to the Claimant’s disabilities when offering decant accommodation.[15]Ground 4 alleges that the Defendant unlawfully failed to consider exercising its power under s 19(3) of the Care Act 2014 (“the 2014 Act”).[16]Ground 5 alleges that the Defendant has discriminated against the Claimant contrary to s 15 of the 2010 Act (discrimination arising from disability), in that it has denied the Claimant the opportunity to have his dogs with him in alternative accommodation.[17]Ground 6 alleges that the Defendant has indirectly discriminated against the Claimant. The application to adduce further evidence[18]On Tuesday 26 August 2025 the Claimant’s solicitors issued an application for permission under CPR 54.16 for permission to rely upon a further witness statement from the Claimant. That statement itself was signed on Friday 22 August. I was provided with that application for the first time at the start of the hearing.[19]In the witness statement the Claimant explains what happened when the lift broke down on 17 August 2025 and was not repaired until the morning of 19 August 2025. On behalf of the Claimant, Mr Ogilvie-Harris submitted that the statement should be admitted as it showed that the lift was continuing to break down and that the claim was not academic. He stated that it did not give rise to new grounds of challenge such that he would be applying to amend his claim. Instead Mr Ogilvie-Harris argued that the statement demonstrated the necessity for the court to give permission to determine the grounds of challenge arising from the breakdown of the lift earlier in the year.[20]Ms Godfrey indicated that the Defendant opposed the application and that the contents of the statement were disputed. I gave her an opportunity to take further instructions on how to proceed and whether she would seek an adjournment to put in rebuttal evidence. Having done so, Ms Godfrey explained that, provided the Court admitted the statement on the basis that its contents were not admitted and on the understanding that the statement went only to the question of whether the claim was academic, then the Defendant did not object to the application.[21]At the hearing I indicated that I was prepared to accede to the application on the basis that had been essentially agreed between the parties. The renewal application[22]In his detailed series of reasons for refusing permission, Mr Moffett KC held that Grounds 1, 2, 3(ii) and 4 had become academic. He held that Ground 3(i) was not arguable and that there was in any event an alternative remedy in relation to Grounds 5 and 6. The submissions at the hearing[23]In his oral submissions, Mr Ogilvie-Harris accepted that Grounds 2 and 4 were now academic as the Policy had been published and the Claimant had been assessed under the 2014 Act. He argued however that Grounds 1 and 3 were not academic and that Grounds 5 and 6 passed the threshold for permission being granted.[24]Relying on the judgment of Jackson LJ in R (oao L, M and P) v Devon County Council [2021] EWCA Civ 358 (“L”), Mr Ogilvie-Harris argued that as there was an ongoing relationship between the parties such that the claim was not academic. He argued that as in L, there was a real likelihood that the issue that arose that prompted the judicial review claim will arise in the future. That was demonstrated by the fact that the lift had broken down again in August.[25]Ms Godfrey argued that the court should only entertain academic claims in exceptional circumstances, such as where there was a large number of similar cases that existed (or were anticipated) and where the decision in the academic case would not be fact sensitive. In this claim, the issue was highly fact sensitive and there were no other similar cases. Are grounds 1 and 3 now academic and, if so, should I exercise my discretion to grant permission?[26]The Court of Appeal stated in R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 [2020] 4 C.M.L.R. 17 at paragraph 208 “[i]t is well established that courts should not opine on academic or hypothetical issues in public law cases other than in exceptional circumstances where there is good reason in the public interest for doing so” (per Lindblom, Singh and Haddon-Cave LJJ).[27]The test to be applied is that set out by Lord Slynn of Hadley in R. v Secretary of State for the Home Department Ex p. Salem [1999] 1 A.C. 450 (at 456):
“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”
[28]In Heathrow Hub the Court of Appeal endorsed the “helpful review of the authorities” on this point in the judgment of Silber J in R. (on the application of Zoolife) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin); [2008] A.C.D. 44 at paragraphs 32–36. At paragraph 36, Silber J said that “[i]n my view, these statements show clearly academic issues cannot and should not be determined by courts unless there are exceptionalcircumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated, and the second condition is that the decision in the academic case will not be fact sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.” (Emphasis as per the judgment).[29]Applying those well-established principles, I am satisfied that grounds 1 and 3 are academic. In my judgment there are no exceptional circumstances here that justify proceeding to grant permission in relation to those grounds. There are no similar cases, and, in any event, the claim would require a fact sensitive consideration of the Policy – a point accepted by the Claimant in his skeleton argument.[30]I do not accept the Claimant’s argument that L supports his argument that permission should be granted. In that case, the Court of Appeal was concerned with an appeal arising from a refusal of the judge at the substantive hearing to determine a point of statutory construction on the ground that the claim was academic (notwithstanding that the judge on permission had rejected the argument that the claim was academic). Neither Peter Jackson LJ nor Elisabeth Laing LJ expressed any view on whether the claim was in fact academic. Peter Jackson LJ observed that there were good arguments either way (see paragraph 61), whilst Elisabeth Laing LJ held that it was unnecessary to reach a final view of that issue (paragraph 49), although she inclined to the view that the claims were academic because the appellants had obtained all the practical relief for which they had asked (paragraph 50).[31]Both judges were of the view that “as a matter of judicial policy, the best way of controlling access to the court for claims such as these is the rigorous filter of the test in Salem” (paragraphs 50 and 64). In that regard it is to be noted that Peter Jackson LJ considered that the resolution of the claim was of significance for other education authorities (paragraph 65). As to the question of whether the construction of the Regulations was live in the proceedings, Elisabeth Laing LJ observed that it was no longer live in the proceedings, “whether or not it was possible, probable, or virtually certain that it would arise again in a future year” (paragraph 50).[32]Applying the approach set out in L and the test in Salem, I am satisfied that there is no good reason in the public interest for granting permission. This is not a case where a discrete point of statutory construction arises which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future. Here the Claimant has received all the practical relief that he sought in his claim form. The grounds would necessarily require highly fact sensitive issues rather than a question of statutory construction that would be of wider application.[33]For the foregoing reasons I therefore refuse permission in relation to Grounds 1, 2, 3 and 4. Grounds 5 and 6[34]In my judgment the Country Court would be a more appropriate venue for determination of these grounds, as the County Court is able to hear evidence and resolve any disputes of fact, including in relation to any assessment of damages. The Claimant is entitled as of right to pursue these Grounds in the County Court.[35]In circumstances in which I have decided that none of the other grounds of claim should proceed, I consider that the County Court constitutes a more appropriate venue for the determination of these claims. Accordingly, I refuse permission on grounds 5 and 6 on the basis that there is an adequate alternative remedy.[36]As noted earlier, the Claimant already has a claim in the County Court. It will be for that Court to determine how to best case manage the existing claim and the claim under Grounds 5 and 6. Outcome[37]For these reasons, I dismiss this renewed application for permission to apply for judicial review and transfer the claim under the Equality Act 2010 to the County Court under section 40(2) of the County Courts Act 1984.[38]Following the circulation of this judgment in draft I received submissions in relation to costs. The Claimant argued that I should either order the Defendant to pay his costs or that I should provide that costs are reserved. The Defendant submitted that the appropriate order was to reserve the costs of the claim under the Equality Act 2010 to the County Court but otherwise to make no order as to costs.[39]In my judgment it would not be appropriate to order the Defendant to pay the Claimant’s costs. The claims under Grounds 1 to 4 became academic two days after the claim was issued once the lift had been repaired. The Defendant has incurred costs responding to the claim for which I have refused permission (and for broadly similar reasons to those given by Mr Moffett KC when refusing permission on the papers). I have therefore made no order as to costs, save for the costs associated with the Equality Act 2010 claim which are reserved to the County Court.