Administrative Law Values, Constitutional Principles and Mandatory Orders: R (Imam) v London Borough of Croydon [2023] UKSC 45

When a court finds in judicial review proceedings that a decision was unlawful, it must then turn its mind to the question of remedy. Of all the available remedies in the judicial armoury, the mandatory order is the most far-reaching and intrusive. Particular care is required before deploying it, as Lord Sales’s analysis in R (Imam) v London Borough of Croydon [2023] UKSC 45 amply demonstrates. The analysis is also suffused by administrative law values, further evidence of their analytical utility in understanding the contemporary law of judicial review of administrative action.

Here, Croydon was in breach of its duty under the Housing Act 1996, s. 193(2) to ensure housing suitable for I, who had complex needs. Croydon admitted being in breach of duty but argued that a mandatory order would be inappropriate due to budgetary constraints and limits on the available housing stock. On the other side, I argued that a mandatory order should be made regardless of whether Croydon was capable of abiding by it. Ultimately, Lord Sales held that the matter should be remitted to the High Court for further consideration with fresh evidence but evidently believed that a mandatory order could be issued, because Croydon had not provided sufficient particulars of the constraints and limits it was operating under.

In arriving at a conclusion between the two extremes, Lord Sales drew heavily on administrative law values: individual self-realization, good administration, electoral legitimacy and decisional autonomy (see further, Understanding Administrative Law (OUP, 2021), at pp. 154-161).

To begin with, the “ordinary position” when a breach of the law has been established is that a remedy should be granted: “A court should proceed cautiously in exercising its discretion to refuse to make an order and should take care to ensure that it does so only where that course is clearly justified” (at para. 44). This starting point vindicates individual interests and ensures respect for the laws passed by elected representatives.

However, different types of order do different things and more coercive orders have larger impacts on good administration and the distinct roles of courts and administrative bodies:

A quashing order is the usual remedy in public law, which obliges the authority to re-take a decision in a lawful way. Such an order allows the authority to exercise its own judgment in re-taking a decision, having regard to all relevant interests affected thereby. On the other hand, a mandatory order takes a matter out of the hands of the authority and, to that extent, makes the court the primary actor. Accordingly, when deciding in the exercise of its discretion to grant a mandatory order to require the authority to do a particular thing, the court has to have regard to the way in which an order of that character might undermine to an unjustified degree the ability of the authority to fulfil functions conferred on it by Parliament and act in the public interest. The proper separation of powers may be in issue as well as enforcement of the law. The effect of this is that the ambit of the court’s discretion whether to grant a mandatory order as opposed to a quashing order may be somewhat greater. If the court makes a quashing order or issues a declaration, but declines to grant a mandatory order, the matter remains in the hands of the public authority which may be best placed to take account of all interests with full relevant information about them. Having said that, the nature of a breach of a legal duty on the authority may be such as to call for the grant of mandatory relief in order to compel the authority to do what it has a clear legal duty to do (at para. 45).

The question here was whether a mandatory order should be made, forcing Croydon’s hand, rather than a quashing order and/or a declaration, which would have memorialized a finding of unlawfulness but left rectification of the situation to Croydon’s discretion.

For Lord Sales, a balancing exercise was clearly required. On the one hand, “it is the court’s role to enforce the law” but on the other, the court would have to consider “whether, and to what extent, it would be appropriate for a court order to be made which may have the effect of disrupting existing plans for the allocation of the authority’s resources” (at para. 53). His solution was two-fold: first, mandatory orders should not be granted where compliance would be impossible (at para. 50). Second, the onus is on the public authority “to provide a detailed explanation of the situation in which it finds itself and why this would make it impossible to comply with an order”; this detailed explanation would “provide the court with reasons to justify the exercise of its discretion” to refuse to make a mandatory order (at para. 54).

This balancing exercise was also influenced by the value of electoral legitimacy. Lord Sales made clear that it was not enough to offer “generalities” about Croydon’s situation (at para. 58), given that in principle it could and should reallocate its spending priorities to meet its statutory obligations. This, after all, involves abiding by the considered judgment of the country’s elected representatives: “For constitutional reasons to do with the authority of Parliament, the general position … is that where Parliament imposes a statutory duty on a public authority to provide a specific benefit or service, it does so on the footing that the authority must be taken to have the resources available to comply with that duty” (at para. 60). Respect for the decisions of the legislature helped, accordingly, to shape the doctrinal requirements developed by Lord Sales.

Lord Sales also observed that individual self-realization could weigh heavily in the balance, as the impact on the individual is an important consideration in determining whether a mandatory order will be appropriate:

It is the vindication of their right which is being denied, and if the impact on them of the failure to comply with it is very serious and their need is very pressing, this may justify the court in issuing a mandatory order despite the wider potentially disruptive effects it may have. The courts below were right to consider this issue …. The less the impact on the individual, the less compelling will be the grounds for making an immediate mandatory order with potentially disruptive effect. Instead, it may be more appropriate to make a mandatory order which is suspended for a period or a quashing order, to allow the authority time to consider its position and reflect on how best to order its affairs going forward. In cases of this nature a claimant should ordinarily adduce evidence about the impact on them, of which they have better knowledge than the authority. They have a responsibility to provide the court with relevant information to assist it in the exercise of its discretion (at para. 69).

By contrast, acceding to I’s argument that mandatory orders should be issued as a matter of course would undermine good administration (setting it at naught) and draw courts into territory properly occupied by statutory bodies:

In setting the parameters within which the question of impossibility is to be assessed, one cannot wholly disentangle that issue from underlying considerations of what is the proper role of a court and what is the proper role of the authority in this context. Local authorities have many functions conferred on them, some in the form of statutory duties and others in the form of discretions (which may themselves shade into duties if circumstances arise which rationally require their exercise in particular ways). In planning its affairs and setting its budgets, an authority has to balance all the demands placed upon it by Parliament and match these with the sources of income available to it. A court cannot carry out that function itself, since it lacks the democratic authority, detailed knowledge of the range of demands and range of funding options available and the administrative expertise required for this … Yet if a court makes a mandatory order which has the practical effect of requiring an authority to divert funding from allocations already made in its annual budget, it would unduly disrupt that balancing exercise carried out by the local authority as regards the funding for due performance of its different functions. The court cannot know with any confidence whether its order will cut across the performance of other statutory duties to which the authority is subject. The making of a mandatory order gives the statutory duty which it reflects a super-added force, which means that the authority has to give priority to complying with it; but in circumstances where the authority might be struggling to accommodate and perform properly a range of statutory duties, this may have an unduly distorting effect upon the overall balance already struck by the authority in its previous budgeting process in an attempt to reconcile all the demands upon it … A court should be careful not to exceed its own proper role by disrupting without good justification the authority’s own attempt to reconcile those claims in a fair way through its ordinary budgeting process, once that has been finalised (at paras. 62-63).

To sum up, both the starting point and Lord Sales’s treatment of impossibility were heavily influenced by administrative law values, as was his emphasis on the potential relevance of the impact on the individual and (as a counterweight to I’s submission) the desirability of effective and efficient public administration. Individual self-realization, good administration, electoral legitimacy and decisional autonomy suffused the analysis and, accordingly, shaped the doctrinal requirements set out by the Supreme Court. The same will be true of the High Court’s choice of remedy, once it has considered fresh evidence from both sides.

This content has been updated on November 30, 2023 at 15:26.