Collateral Challenge(ish): Adesotu v Lewisham LBC Case No E40CL183

Perhaps because I have collateral challenge on the brain (see my post on the Supreme Court of Canada’s decision in Bird) but I cannot help but think of Adesotu v Lewisham LBC Case No E40CL183 in terms of the permissibility of indirectly impugning allegedly unlawful administrative action.

Adesotu is not really a case about collateral challenge. Indeed, it is plainly a case about the scope of a statutory appeal (under s. 204 of the Housing Act 1996). Nonetheless, it seems to me to be helpful to consider some of the principles relating to collateral challenge in determining the scope of s. 204, which has become a point of contention. Although it is a County Court decision, it was well argued and decided by HHJ Luba, a noted expert in public law, with housing law a particular specialty.

Section 204 provides for an appeal on a point of law from a decision of a housing authority. Here, the Council concluded that it had discharged its duty to house Ms. Adesotu after she refused a property the Council had offered to her (on the basis, it seems, that it was unsafe for her young children and too far from their school). On appeal, Ms. Adesotu wished to contend that the Council had breached its duties under the Equality Act 2010 and had made various errors of law. In applying to strike out part of the appeal notice, the Council successfully argued, first that the Equality Act points could not be raised in a s. 204 appeal because it was (for a host of procedural reasons, especially) the inappropriate forum and, second that s. 204’s limitation to matters “arising from a decision” meant that the appellant could not put in issue policies or practices (or, indeed, prior actions) of the Council. Here, the Council had a policy of requiring people in the appellant’s situation of accepting or refusing an offer of accommodation within four to six days (surely administratively efficient but perhaps not always appropriately tailored to the circumstances of vulnerable individuals).

The second point is what interests me. HHJ Luba struck out the notice of appeal. On the one hand, there is strong authority for the proposition (in English law) that an appeal on a point of law is “designed to operate in exactly the same way as judicial review” (Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB) at para. 17, per Jay J and see also Nzolameso v City of Westminster [2015] UKSC 22, at para. 41, per Lady Hale; one could also mention Carnwath LJ’s venerable decision in E v Secretary of State for the Home Department [2004] EWCA Civ 49, at paras. 40-43). On the other hand, Lewison LJ has recently doubted whether a s. 204 appeal can take “antecedent decision[s]” into account (Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624, at para. 90; see also Alibkhiet v London Borough of Brent [2018] EWCA Civ 2742). His concern there was with a local authority’s decision to contract out some of its functions. Permitting that decision to be put in issue in a s. 204 appeal would, on that occasion, have circumvented the ordinary judicial review time limits and strict provisions relating to the challenge of procurement decisions.

HHJ Luba came down on the side of the Council:

In the event, and much influenced by the dictum in Panayiotou, I am satisfied that a reviewing officer is entitled (particularly in the absence of any contrary point having been expressly raised) to treat any policy or practice of the council applied to the applicant prior to his/her own decision as lawful. As in all public law cases, there must be a presumption that a public authority behaves and has behaved lawfully(the ‘presumption of regularity’)

at para. 97

Like Nearly Legal I am dubious about this conclusion. There are at least two reasons which would justify giving s. 204 wide-enough scope to encompass past unlawfulness. First, the policies or practices in question will be general in nature: they apply to all individuals subject to them, not to a particular class. Accordingly, it is unrealistic (and perhaps even unfair) to expect one individual to challenge the lawfulness of the policy in judicial review proceedings. Boddington v British Transport Police [1999] 2 143 is a good example. There it would have been unrealistic and unfair to require Mr. Boddington to assume the cost of challenging the ‘no-smoking’ bye-law he alleged to be invalid and he was thus entitled to put the legality of the bye-law in issue when he was charged with having violated it (see also Wandsworth London Borough Council v Winder[1985] AC 461). By contrast, where an administrative order applies to a particular individual, courts have (as in the recent Canadian case of Bird) been much less willing to entertain collateral challenges, on the basis that the individual (usually) could and should have challenged the validity of the order in administrative proceedings or by judicial review.

Second, the nature of administrative policies and practices presents a further difficulty. They are ‘soft’ law. Whilst they are designed to guide the exercise of discretion in individual cases, they are — strictly speaking — not binding; indeed, they cannot be binding, for otherwise they would be an unlawful fetter on discretion. But if they are not binding and function merely as guidance, how can an applicant for judicial review ever claim they are ‘unlawful’? Courts around the common law world have wrestled, generally unsatisfactorily, with this problem. Only where an administrative policy or practice is clearly tainted by an error of law and evidently attempts to tie the hands of a decision-maker exercising discretionary power can it safely be said that the policy would be declared unlawful in judicial review proceedings. In short, an applicant for judicial review who took it upon herself to challenge an unlawful policy would face an uphill struggle, as the respondent would almost certainly argue that the policy contained no error of law and, even if it did, was not binding on the front-line decision-maker. And they might even argue that the applicant was out of time to bring judicial review proceedings! (See further my post on Ishaq).

These considerations suggest that local housing authority policies or practices could be collaterally challenged in judicial review proceeding. They also, to my mind, militate in favour of giving broad scope to s. 204. Otherwise, the chances are that the lawfulness of local authority housing policies and practices will never be properly put in issue before the courts.

This content has been updated on February 18, 2019 at 12:30.