England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT AND DIVISIONAL COURT)
MR. JUSTICE OWEN

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th April 2003

The Vice-Chancellor :

1. On 24th January 2002 Owen J dismissed the application of Mrs Gjini for judicial review of the decision of the Islington Borough Council ("the Council") made on 17th May 2000 to reduce the subsistence paid to her under Reg. 6 The Asylum Support (Interim Provisions) Regulations 1999 by the amount of the child benefit of £15 per week received by her in respect of her son Mario. The decision of 17th May 2000 was superseded by a further decision of the Council made in April 2002. The later decision was not disclosed to Peter Gibson and Potter LJJ when, on 20th June 2002, they granted Mrs Gjini permission to appeal. In these circumstances we have been concerned to identify which (if any) of the issues before Owen J we should entertain before deciding whether or not he was right.
2. The applicant, Mrs Gjini, is Kosovan by origin and Albanian by ethnicity. Her son, Mario, was born in Kosovo on 29th August 1994. Her husband was killed during the civil war in Kosovo. Mrs Gjini and Mario arrived in the United Kingdom on 11th November 1998. She immediately sought asylum and applied to the Council for accommodation and subsistence. Her application for asylum has yet to be determined. She was provided with both accommodation and subsistence forthwith.
3. Subsistence was initially provided at the rate of £84 per fortnight. On 17th May 2000 the Asylum Support Team of the Council reviewed the subsistence provided for Mrs Gjini and Mario. They learned that Mrs Gjini had been receiving child benefit of £15 per week in addition to the subsistence payments. They considered that Mrs Gjini was not entitled to both and reduced her subsistence payments by £30 per fortnight. According to the evidence of a trainee employed by Mrs Gjini's solicitors, on 22nd May 2000 he was informed on the telephone by Mr Tim Barrad that it was a policy set by the Legal Department of the Council that 72% of the current rate of income support should be paid by way of subsistence to asylum seekers. By a letter to the solicitors for Mrs Gjini dated 30th May 2000 the Council explained that the subsistence paid to Mrs Gjini pursuant to Reg. 6 The Asylum Support (Interim Provisions) Regulations 1999 was calculated as £3 per person per day less child benefit of £15 per week amounting to £54 per fortnight. On 8th June 2000 the solicitors for Mrs Gjini wrote to inquire whether it was the policy of the Council to pay £3 per day per person. This was confirmed in a letter from the Council dated 13th June 2000 in which the provision of a copy of the policy to Mrs Gjini's solicitors was promised.
4. On 16th August 2000 Mrs Gjini applied for leave to apply for judicial review of the decision of the Council dated 17th May 2000. She sought orders (a) to quash the decision to reduce the subsistence payments by £15 per week, (b) to require the Council to review the amount of subsistence payable to her and (c) to order the Council to provide details of the policy on which they relied as justifying the subsistence payments of £54 per fortnight. The grounds were that it was unreasonable not to produce a copy of the policy on which the Council relied and that the amount of subsistence provided was not enough for Mrs Gjini's essential needs. The application was supported by witness statements made by Mrs Gjini and an assistant and trainee solicitor employed by her solicitors.
5. The application came before Scott Baker J on 19th January 2001. He adjourned it so that Mrs Gjini might apply to the Council for further subsistence payments based on exceptional circumstances. The subsistence paid to Mrs Gjini was reconsidered by the Asylum Support Team on 23rd January and 26th July 2001. In the result the subsistence provided comprised accommodation at a cost of £280 per week, payment of all utility bills, a clothing allowance for Mario of £35 per six months, free school meals for Mario, certain travelling expenses and £54 per fortnight. A copy of the review carried out on 26th July 2001 was faxed to Mrs Gjini's solicitors on 27th July 2001.
6. In response to an order of Scott Baker J made on 31st July 2001 on 2nd August 2001 the Legal Services department of the Council wrote to Mrs Gjini's solicitors for the purpose of explaining the policy of the Council. There were enclosed with it two documents described as the 1996 policy and the 1999 policy. The former prescribed in the case of children/families £3 per person per family in addition to assistance in kind. The latter which was formulated to take account of the Immigration and Asylum Act 1999 stated that the rates of subsistence, in addition to assistance in kind, were calculated as

"Families including children: £3 per person per day

Single Adults: £5 per day"

The letter stated:

"The starting point, insofar as meeting your client's essential needs is concerned, is that the support to which your client is entitled in accordance with our policy, equates to 72% of the rates of current income support (which is considered to be sufficient for subsistence) less any income received in respect of child benefits (see regulation 6.1 of the 1999 Regulations).

Ms Gjini receives this in part as a cash payment (or, more specifically, as a cheque which she can then convert to cash) and in part as other benefits, which include clothing grants and various benefits for families with school-going children, such as children's transport to and from school, and lunches. In addition, she, like other asylum seekers, is not responsible for gas or electricity payments, whereas persons receiving income support in the usual sense would be making such payments. This support package is set out at the bottom of page 1 of the 1996 policy in the section reading 'Children/Families...School Uniform'. Your client is aware of all this information.

In summary, Ms Gjini is entitled to receive from this authority as a cash payment, 72% of the current income support rates less the child benefit payable less the value of the other above-mentioned benefits."

7. On 23rd October 2001 Scott Baker J gave permission to apply for judicial review on the basis that Mrs Gjini should provide an amended claim form and form 86A. This she did on 29th October 2001. The order to be reviewed remained that of 17th May 2000. After summarising the relevant events and correspondence it was asserted in paragraph 12 that although the Council had provided a copy of both the 1996 and the 1999 policy

"...no explanation has ever been given of the origin of the policy or why the figure of 72% of income support levels is arrived at."

In paragraph 13 it was submitted that it was unreasonable of the Council not to provide a copy of the origin of its policy, that the subsistence provided to Mrs Gjini was insufficient to meet her essential needs so that it should reinstate the £15 per week it had deducted and review the amount of subsistence it provided "on the basis that a single person over 26 would receive the same amount as Mrs Gjini and Mario and that the circumstances of Mrs Gjini and Mario were exceptional. In paragraph 15 details were given concerning a medical condition from which Mario suffered.

8. The grounds concluded in paragraphs 16 and 17 as follows:

"16. It is submitted that in failing to provide details of the origin of the policy upon which it states to rely in assessing the subsistence it provides the Applicant, the Borough of Islington has acted unreasonably in the Wednesbury sense. It is further submitted that there is nothing within the relevant legislation setting out that asylum claimants should receive 72% of the level of income support and that as a result the Respondent has acted unlawfully in deciding upon such a percentage and figure. It is further submitted that if the Respondent maintains that its policy is to pay £3 per day to asylum claimants who form part of a family group then such a policy is irrational in particular given that a single adult over the age of 26 receives £6 per day and that in any event such amounts do not amount to 72% of the current level of income support. It is further submitted that if the policy that asylum seekers should receive 72% of the current income support levels is lawful then the Respondent has and continues to act unreasonably as it is not following its own policy in respect of the Applicant.

17. It is respectfully submitted that the Applicant should be granted a quashing order quashing the decision of the Borough of Islington dated 17^th May 2000 reducing the amount of subsistence paid to the Applicant by £15, a mandatory order requiring the Borough of Islington to review and assess the Applicant's needs properly, and a mandatory order requiring the Borough of Islington to provide the Applicant with details of the origin of the policy upon which the Borough relies and whereby the Borough provides a subsistence of £3 per person per day. It is further submitted that the Applicant should be granted a Declaration that the policy of the Borough of Islington is ultra vires or alternatively irrational or that in the event that the policy is found to be lawful and rational a mandatory order that the Applicant receives 72% of the current level of income support for her and her dependant son and any other order or relief that the Court thinks fit."

Though further witness statements on behalf of Mrs Gjini had been made by the Assistant Solicitor and a friend, Mr Edward Snajli, in July 2001 none was made expressly to explain or support the amended grounds.

9. The evidence for the Council is contained in a witness statement of Mrs Dudley made on 12th November 2001. She described the background to the application in detail. In paragraph 18 she exhibited the 1999 policy which, she said, then represented Islington's policy with regard to payments to destitute asylum seekers. In paragraph 19 she summarised the support provided by the Council to Mrs Gjini in cash or in kind.
10. Mrs Dudley then turned to the allegations made against the Council in the amended grounds. She correctly summarised them under six heads, namely (1) payment of £3 per day per person for members of a family when compared with payment of £5 per day to a single person was irrational, (2) payment of 72% of income support rates was irrational, (3) the amount paid by the Council did not reach 72% of income support, (4) the deduction of child benefit was unlawful, (5) the payments made by the Council were unreasonably low and (6) the exceptional circumstances pertaining to Mrs Gjini and Mario justified additional payments being made to them. In her witness statement Mrs Dudley dealt with each of these six allegations. Exhibit ID2 thereto is a chart showing the single family payments made in cash or in kind by 10 London Boroughs including Islington.
11. In the light of subsequent events it is only necessary to refer to Mrs Dudley's evidence in relation to the second and third of those allegations. In paragraphs 23 to 25 of her witness statement Mrs Dudley said:

"23. The policy of paying 72% of income support level is not peculiar to Islington. To my knowledge it is a policy which is used by many other London authorities. The rational behind this policy is that whereas income support levels provide a helpful guide to average subsistence levels a deduction has to be made to reflect the number of fringe benefits which asylum-seekers enjoy but which are not available to those on income support e.g. the payment of all their utility bills. If the authority did not make such a deduction it would mean that destitute asylum-seekers would receive more than those on income support.

24. At any rate should the Claimant subsequently be granted leave to remain she may claim back from the Department of Health the difference between income support rates and the amount received in cash from the local

25. I do not accept that the package Islington is providing does not equate to at least 72% of the relevant income support rate. As I say the Claimant is receiving a range of fringe benefits the most expensive of which (from Islington's point of view) being payment of the utility bills. These bills will obviously increase with the onset of winter. In my respectful view of these, combined with clothing and other benefits to which I have referred make up at least 72% of what the Claimant would receive had she been eligible for income support."

12. No evidence in reply was adduced on behalf of Mrs Gjini. But at the hearing before Owen J on 23rd January 2002 counsel for Mrs Gjini produced a document indicating the type and amount of means-tested benefits available to those on income support. This suggested that a lone parent with a child under 16 would receive per week an aggregate sum of £100.40 comprising £53.05 in respect of him or herself, £31.45 for his or her child and a family premium of £15.90.
13. In paragraph 6 of his judgment given on 24th January 2002 Owen J recorded that the contention that it was unlawful to deduct the amount of child benefit received by Mrs Gjini in respect of Mario, that is point (4) in Mrs Dudley's summary, had been abandoned. In paragraph 37 he concluded that the 72% policy, point (2) in Mrs Dudley's summary, had not been explained to his satisfaction. He added

"Had I been satisfied that it had been applied to the assessment of the claimant's entitlement under the regulations, I would have set aside that assessment, but I am not satisfied that it was."

38. I have already made reference to the letters of 30th May 2000 and 13th June 2000 on which the basis of the assessment was set out without reference to any such policy. As to the letter of 2nd August 2001, I have already referred to the fundamental inconsistency between it and the evidence of Ms Dudley. In those circumstances I am unable to place reliance upon it. It confirms that the defendants are in a hopeless state of confusion as to the policy and, in my judgment, there is simply no reliable evidence upon which to find that it was applied in the claimant's case. It follows that the claimants secondary argument with regard to this policy, namely that in any event the defendants failed properly to apply it, falls away."

Accordingly, the judge never dealt with point (3) in Mrs Dudley's summary.

14. The judge then considered the remaining grounds, as summarised by Mrs Dudley. With regard to the £3 per person policy (point (1)) he concluded, though not without hesitation, that it was not irrational or unreasonable. Further he decided (points (5) and (6)) that the Council had properly reviewed the case for Mrs Gjini and Mario including the alleged exceptional circumstances. For these reasons he decided that there were no grounds on which the court was entitled to intervene and dismissed Mrs Gjini's application.
15. In the light of those conclusions the Council carried out a general review of its asylum support scheme in April 2002. It decided that thenceforth rates of subsistence should be based on 70% of national income support rates for adults and fixed at £21 per week for each child subject to deduction of any other relevant income such as child benefit. The new rates were applied to Mrs Gjini. Accordingly since then she and Mario have been accommodated in a two-bedroom property at a cost, including council tax, water, gas and electricity charges of £280 per week. Mrs Gjini receives £61 per fortnight made up of £24.50 per week for herself and £21 per week for Mario from which £15 per week is deducted in respect of child benefit. In addition the Council has made changes to its clothing scheme and fares.
16. The application of Mrs Gjini for permission to appeal, having been refused by the judge was refused by Keene LJ on the papers. Her renewed application came before Peter Gibson and Potter LJJ on 20th June 2002. As the application made clear the issue of exceptional circumstances (point (6)) had been dropped but permission to appeal all the four remaining issues was sought. In relation to point (3) paragraph 3 of the proposed grounds of appeal asserted that

"It is however submitted that the Judge erred in his assessment of the Defendant's policy in other respects. The learned Judge stated that there was no rational basis for the policy of the Defendant providing the claimant with 72% of income support levels and further that if had been so satisfied he would have set aside the amount. However, the learned judge then went on to state that as a result the contention that the Defendant failed to apply the policy falls away. With respect to the Judge it was the Defendant's case that paying the Claimant 72% of income support was its policy. Part of the Claimant's case was that the policy was unreasonable and irrational but also that if the policy was found to be lawful then the Claimant should receive 72% of income support levels. It is submitted that if the policy was unlawful the Claimant should have been granted a Declaration to that effect and that if the policy was lawful the defendant should have been ordered to comply with its own policy."

17. The Court of Appeal was not informed that Mrs Gjini's support had been reviewed and increased. This was a serious breach of the duty of Mrs Gjini, to be performed by those who represented her, to make all appropriate enquiries and to disclose to the court all facts material to the application she was making without notice to the Council, R v Lloyd's of London [1993] 1 Lloyds Rep 176. Had the most obvious enquiries been made they would, in all probability, have elicited the facts that the subsistence paid to Mrs Gjini had been increased because the policy of the Council had been reviewed and changed. In that event it would have been apparent to the Court of Appeal that points (1), (2) and (5) in Mrs Dudley's summary had been overtaken by events and point (3) could only arise if the judge were wrong in relation both to the application of the 72% policy and to its rationality.
18. In his judgment on the application for permission to appeal Potter LJ made no reference to point (3). Indeed paragraph 7 of his judgment indicates that the argument presented to the Court was limited to "the question of the asserted irrationality of the policy of Islington and the way in which that issue was dealt with by Owen J". In the rest of his judgment Potter LJ, with whom Peter Gibson LJ agreed, considered those issues. In those circumstances it is, to say the least, unlikely that the Court of Appeal would have given permission to appeal if they had known that the only outstanding issue was whether if the 72% policy had been lawful and applied it had been applied properly to Mrs Gjini in the period November 1998 to April 2002. In the event permission to appeal was granted without limitation or condition.
19. In September 2002 the Council carried out another review of its policy. Had it been adopted it would have led to an increase in the subsistence paid to Mrs Gjini and other asylum seekers. It was not, so we were told, because central government declined to pay the increased cost. Accordingly further steps were taken to see if the extra cost could be found from the Council's own resources. The upshot, from the point of view of Mrs Gjini, is that the subsistence payments for her and Mario have been increased to £68.52 per fortnight with effect from 3rd April 2003.
20. The information relating to the review of the Council's policy and the payments to Mrs Gjini since the judgment of Owen J was provided to us by a witness statement of Mr Smith, the service manager of the Council's Asylum Support Team, made on 18th March 2003. This prompted further statements from Mrs Gjini made on 28th March 2003 and the Assistant Solicitor having the care and conduct of her appeal on 1st April 2003. Their purpose appear to be either to challenge the new policy or to continue to challenge the rationality of the old policies on the footing that they remain in force and have to be assessed in the light of the up to date figures. Neither of them offers any explanation of why Mrs Gjini's duty of enquiry and disclosure was broken.
21. Before us, Mr Gill QC, who had not been previously concerned in the case, made it clear that the only point he wished to argue was that which is point (3) in Mrs Dudley's summary. Thus, not only has point (2) been overtaken by events but the judge's conclusion on it is contrary to the case now advanced. Similarly points (1), (4), (5) and (6) have been overtaken by events and have been abandoned. Mr Gill's contentions in respect of point (3) are that contrary to the conclusions of Owen J the 72% policy was both lawful and applicable to Mrs Gjini but was not applied properly. The consequential relief for which he applies is an order requiring the Council to apply it properly to Mrs Gjini by recomputing her subsistence payments for the period November 1998 to April 2002 and payment of the balance due to her.
22. Counsel for the Council contended that this point was not open to Mrs Gjini. He submitted that she was not entitled to challenge the new policy in this court and had not previously asserted a failure to apply the old policy on the grounds now advanced. He points out that the contentions of Mrs Dudley in paragraph 25 of her witness statement that the support provided to Mrs Gjini did amount to 72% of income support were not challenged in evidence before the judge and were not the subject of any finding by him.
23. For my part I would uphold the objection of counsel for the Council. In the case of the new policy there has been no decision from which to appeal. It is true that the amended grounds advanced on the application for judicial review (see para 8 above) did include, as one of several alternatives, the assertion that if the 72% policy was lawful then the Council had acted unreasonably in failing to observe it. That ground was inserted by amendment but the evidence from Mrs Gjini and her solicitors in support of her original application did not deal with it and no further evidence in support of the amended grounds was adduced by Mrs Gjini or on her behalf. The assertion made in the amended grounds was specifically denied by Mrs Dudley in paragraph 25 of her witness statement (see para 11 above) and there was no evidence from Mrs Gjini in reply to it. The production at the hearing before Owen J of a list of available means-tested benefits was inadequate to refute the evidence of Mrs Dudley. It did not deal with what was "the relevant income support rate" nor did it have any bearing on the value of the benefits in kind.
24. It is incumbent on those applying for judicial review to make clear in the detailed statement of their grounds and facts relied on required by CPR 54 PD 5.6. paras 1 and 2 what their case is. This is particularly important where, as here, the applicant seeks to rely on a number of inconsistent alternatives. In the event this case did not arise before the judge nor was it apparent to the Court of Appeal by whom permission to appeal was granted. In my view it would be unjust to the Council to allow it to be pursued now.
25. But in a case of this sort it would be inappropriate to decide the matter exclusively on what some might describe as a technical point. Nevertheless it must be decided on the evidence properly before the court and on the relevant hypothesis, namely that the 72% policy was rational and so lawful. The relevant evidence is to be found in the paragraphs of the witness statement of Mrs Dudley which I have quoted in paragraph 11 above.
26. It is impossible to decide that the Council has not followed the policy to which Mrs Dudley refers without knowing the relevant income support rate to 72% of which the subsistence payments are to equate. Counsel for Mrs Gjini claims that it includes the lone family premium of £15.90 a week. But that item appears on the list of means-tested benefits produced by counsel for Mrs Gjini before Owen J not under the heading of "income support" but under the heading of "Premiums". If it is not included then the level of income support would be £53.05 per week for Mrs Gjini and £31.45 for Mario making £169 per fortnight of which 72% is £121.68. The subsistence paid was £54 a fortnight but this was after £30 child benefit had been deducted. If that is added back then the subsistence paid was £84 per fortnight as compared with £121.68. The difference is £37.68. or £18.84 per week.
27. This is to be compared with the cost of the benefits in kind referred to by Mrs Dudley. In the absence of any challenge to her statement there is no detail as to how the benefits in kind are valued. I am not prepared to speculate. It is certainly not self-evident that £18.84 per week or £979.68 per year is an excessive estimate of the cost of all the benefits in kind provided by the Council including as they do Council tax, water, gas and electricity bills for the year.
28. In those circumstances, in my view, Mrs Gjini fails to establish that the Council did not provide support for her and Mario in discharge of its duty under reg. 5 of The Asylum Support (Interim Provisions) Regulations 1999 and the due performance of its own lawful policy. It is to be assumed that the 72% policy was both rational and lawful as a means of discharging the obligation of the Council. The evidence before the court does not establish that the Council failed to implement it.
29. For all these reasons I would dismiss this appeal.

Lord Justice Clarke:

30. I agree that this appeal should be dismissed. Since the reasons which have led me to that conclusion are somewhat narrower than those expressed by the Vice-Chancellor, I think I should briefly express them in my own words.
31. When the matter was before Owen J the issues were those summarised under five of the six points referred to in paragraph 10 of the Vice-Chancellor's judgment, namely nos (1) to (3), (5) and (6). For present purposes I refer only to points (2) and (3). Islington said that its policy was to pay 72 per cent of the income support level. Mrs Gjini said that any such policy was irrational or alternatively that Islington did not in fact pay 72 per cent. The judge said that he was not satisfied that Islington had any such policy but that, if it had, he would have held the policy to be irrational.
32. As I see it, the effect of that conclusion was that Mrs Gjini's submission had in essence succeeded, namely that Islington could not rely upon a policy of paying 72 per cent of the level of income support. It had succeeded either on the basis that there was no such policy or, if there was, that it was irrational. I agree with the Vice-Chancellor that it followed from the judge's conclusion that head (3), namely that Islington did not apply the 72 per cent policy, did not arise. Thus on no view of the case would head (3) arise, save perhaps on the basis that the policy existed and was rational, which was not Mrs Gjini's case and was rejected by the judge.
33. In these circumstances it does not seem to me to be appropriate for the court now to consider whether, if Islington had a 72 per cent policy, it applied it. I agree with the Vice-Chancellor that it would not be just to the Council to allow Mrs Gjini now to argue that it did not apply the 72 per cent policy. It was her case before the judge that any such policy was irrational and the judge held that, if there had been such a policy, he would have held it to be irrational. I do not think that it is just to allow her now to contend that Islington did not apply the policy on the assumption that it was rational, especially since there is, as I see it, no basis upon which the judge's conclusions on points (1), (5) or (6) can be held to be flawed. I would dismiss the appeal on that narrow basis.
34. The aspect of the case upon which I respectfully depart from the reasons given by the Vice-Chancellor is in so far as he says in paragraphs 22 to 24 that the production of a list of available means-tested benefits was inadequate to refute the evidence of Mrs Dudley that in her view Islington applied the 72 per cent policy. To my mind the evidence of neither party is satisfactory in this respect. On the one hand Mrs Dudley does not explain by reference to the figures how the benefits equate to the 72 per cent figure while, on the other hand the material relied upon by Mr Gill also leaves much to be desired. Although the legal burden of proof in this regard was no doubt on Mrs Gjini, it does appear to me that the facts must have been primarily within the knowledge of Islington as the local authority and I would have expected Mrs Dudley's statement to set out the figures with particularity.
35. Kay LJ observed in the course of the argument that, if the question whether Islington in fact applied a policy of 72 per cent had been the crucial question, he thought it likely that the judge would have remitted the matter for clarification. I agree. He did not do so because it had become irrelevant. In these circumstances I would not be in favour of dismissing the appeal on the basis of a failure of Mrs Gjini to set out the figures sufficiently clearly. Nor am I in favour of dismissing the appeal on the basis of the figures analysed by the Vice-Chancellor in paragraphs 25 to 28 of his judgment. If I thought it otherwise just to consider point (3) I would remit the matter for clarification on the facts.
36. However, I would dismiss the appeal on the narrow basis identified above. I do not think that this conclusion is in any way unjust to Mrs Gjini because, as the Vice-Chancellor has explained, the benefits paid to her and her son have been reviewed on a number of occasions since the initial decision. Moreover, I see no good reason for looking back and not forward, especially in circumstances in which I agree with the Vice-Chancellor that, if the full facts had been disclosed to Peter Gibson and Potter LJJ, it is unlikely that permission to appeal would have been granted. Finally (as already stated) I see no good reason to hold that the judge's conclusions on points (1), (5) or (6) were in any way flawed.

Lord Justice Kay

37. I agree with the judgment and reasoning of the Vice-Chancellor.