R (Bhatti) v Bury MBC [2013] EWHC 3093 (Admin)

ISSUE: It is common in community care judicial review challenges for the facts to move on after the claim is first issued. Commonly a challenge is initially launched to a failure to assess. The LA assesses after the claim has been issued. The Claimant has concerns regarding the content of the assessment and, rather than withdrawing the initial claim and reissuing, seeks to amend the existing claim. The practice of the Administrative Court has usually been liberal in allowing such amendments, though it has made clear in strong terms the need for properly pleaded amendments and for the correct procedure to be followed: see, eg, R (P, W,  F and G) v Essex CC [2004] EWHC 2027 (Admin), paras 35, 38–39, 44–48; R (B) v Lambeth LBC [2006] EWHC 639 (Admin), paras 39–42.

FACTS: This was basically the factual scenario of this present case. Ms Bhatti disagreed with Bury’s financial assessment of her weekly contributions, and brought JR proceedings. These were stayed by consent pending a re-assessment of her needs. The new assessment concluded that there was no financial contribution. However Ms Bhatti then objected to some of the content of the community care assessment and care plan. She sought to reinstate the proceedings on amended grounds, challenging the community care assessment and care plan.

The LA objected to the claim being amended, and insisted that a new claim must be issued, and that the council complaints mechanism should be followed first.

JUDGMENT: The Court declined to allow the claim to be amended. The amendment sought to challenge a different decision on different grounds to those initially brought. The complaints mechanism should be followed.

COMMENTS: The decision is explicable on its terms but nonetheless does not reflect perhaps the more common approach, which is to generally allow properly pleaded amendments brought within time.

As mentioned, the more common course where a fresh decision supersedes the decision initially under challenge is to substitute the most recent decision as the decision under challenge, and the courts do not commonly insist on the claimant commencing an entirely new claim for judicial  review of the new decision. The reasons for this are practical, and justifiable in terms of the Overriding Objective. The immigration case relied on by the judge in Bhatti was different, as in that case there was no amended claim, and only the suggestion that the claim could be amended and continued.

Another odd feature of this claim is that in the current legal aid environment claimants are now more keen to withdraw claims at this stage and obtain a costs order against the LA.

Another important feature of this claim is the court’s reliance on the alternative remedy of the statutory complaints mechanism under the Social Services and NHS Complaints Regulations. Challenges to community care assessments and care plans are areas where the courts have considered the complaints mechanism to be an adequate alternative remedy, eg see R (F) v Wirral BC [2009] EWHC 1626 (Admin), [2009]. However where the claim raises a point of law, concerns the application of a policy, or where an interim remedy is necessary, then a complaints procedure is unlikely to afford an alternative remedy which is sufficiently adequate.