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Reported Case

Court of Appeal underlines that successful litigants should receive their costs, in test case about hidden disabilities (12 January 2021)

Date: 12/01/2021
Duncan Lewis, Reported Case Solicitors, Court of Appeal underlines that successful litigants should receive their costs, in test case about hidden disabilities

RS, R (On the Application Of) v London Borough of Brent [2020] EWCA Civ 1711 (18 December 2020)

RS suffers from debilitating but non-physical conditions which make walking, especially in busy places, very difficult. He applied to the London Borough of Brent (“LBB”) for a further "Blue Badge" parking entitlement (having previously been granted them from 2000-2013). This time, the application was refused upon the basis that his conditions were "no longer considered to be a qualification for a disabled blue badge".

The Disabled Persons (Badges for Motor Vehicles) Regulations 2000 (which had not materially changed) provided that a Blue Badge could be issued to a person with "a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking". LBB (and many other local authorities) now interpreted that as requiring a physical disability causing an applicant's mobility impediment. LBB also stated that in any event a Blue Badge could not be awarded until after a mobility assessment by an expert. RS was particularly troubled by the requirement to attend a “mobility assessment”, which he considered humiliating and pointless, since it was designed to address physical mobility issues. RS instructed Duncan Lewis to assist him in challenging this decision.

There were unfortunate incidents in the pre-action period, in which LBB repeatedly reversed themselves over whether they did, or did not, have the papers relating to RS’ previous successful applications, which eventually led to a complaint to the Information Commissioner, who expressed unease at the responses of LBB. Additionally, LBB contacted RS directly to press him to attend a mobility assessment, in breach of the usual rule, which requires communication between parties to be conducted through their lawyers. This led RS’s solicitor to make a complaint to the Solicitors Regulation Authority (“SRA”), which Duncan Lewis accept was erroneous (as it equated the actions of the LBB, with those of their in-house solicitor) and unnecessarily personalised the litigation. (The complaint was dismissed, as was a complaint by LBB to the SRA about our initial complaint). We regret that the correspondence between the parties deteriorated in this way, and have taken steps to ensure that proper professional courtesy is maintained in all of our matters at all times.

Legal issues and developments in the claim

The basis of the claim was that it was irrational, and in breach of the Public Sector Equality Duty (“PSED”), the Equality Act 2010, and the Claimant’s rights under Article 8 ECHR to read the Regulations as only applying to those with physical disabilities. (PSED requires public authorities to advance equality of opportunity, and minimise disadvantages for those, such as RS, with ‘Protected characteristics”). RS’s judicial review sought the provision of a Blue Badge, and damages, for breach of Article 8 ECHR.

Before the claim had commenced, the Department for Transport explained that it intended to introduce a clarificatory amendment to the law as, "The current rules embrace all conditions, physical or otherwise, but it had become clear to us that the regulations and guidance were not clearly understood and that people with hidden disabilities were sometimes finding it difficult to access badges, even though their condition caused them very significant difficulties when undertaking a journey."

As every judicial review lawyer knows though, even an official view of the meaning of legislation by the department that introduced it is not decisive; the Court will construe the meaning itself. LBB argued that two factors strongly suggested that their reading of the Regulations was correct: (a) many other councils had adopted the same position, and (b) the Regulations were to be amended to make plain that non-physical disabilities were included.

RS was granted permission for judicial review and shortly thereafter, in April 2019 the Department for Transport issued updated guidance, which was to come into effect that August, removing any ambiguity. Shortly thereafter LBB agreed to issue the Claimant with a Blue Badge, and the parties agreed that the judicial review would be withdrawn on the basis that the issue of damages would be settled in the County Court, whilst the question of costs would be decided on the basis of submissions that the parties had made in writing.

At this point the case file was passed to the Dalston Public Law team. We began the claim for damages, which was successfully resolved when LBB agreed to pay RS £4, 000 in damages, and his County Court costs. The Administrative Court, however, declined to order LBB to pay RS’s costs, on the basis that the judge did not accept that the Claimant was the successful party, and further that as the new Regulations would shortly make the claim academic there was no further point to the claim, and the Defendant ought not be dissuaded from pragmatic settlement by fears of costs liability. We advised RS that there were good grounds to challenge that reasoning.

Challenging the LAA

Although RS had been awarded £4, 000 in damages and his costs in the County Court, as that success had stemmed from his judicial review which had been funded by legal aid, the statutory charge would apply to those damages. It followed that, unless RS was able to obtain an order that LBB should also pay his Administrative Court costs, all of his damages would be absorbed by the LAA. We therefore considered that there was, in addition to the merits, a good reason for RS to appeal further. Unfortunately, the LAA did not agree, and refused to fund the appeal. We issued RS’s appeal to the Court of Appeal in time, so as to preserve his position, and sought extensions of time to file his skeleton, whilst we sought a review of the LAA’s decision to refuse to fund the appeal.

Further extensive delay accrued, as is all too common in these circumstances, and eventually we wrote a letter before action (“LBA”) to the LAA. The LAA responded promising a quick decision, which duly arrived the next day. Although that was a yet further refusal to fund the matter, we could at least now appeal the question to the Independent Funding Adjudicator. Two months later, still awaiting this final decision, we wrote a second LBA to the LAA, and a further decision swiftly followed, this time positive.

The Costs Appeal

Once the matter proceeded to a hearing, the Court of Appeal agreed with the arguments that we had put forward for RS.

It was common ground that the correct approach to costs appeals where judicial review claims have settled before a hearing was set out by the Court of Appeal in M v Croydon LBC [2012] EWCA Civ 595 ("M"). M categorised cases into three types and identified principles to be applied in each category. Category M (i) was where the Appellant was the successful party. In R(Tesfay) v Home Secretary [2016] EWCA Civ 415 the Court underlined the need to look at the real substance to determine who was the successful party, rather than taking an overly technical approach to the question.

Applying these principles to the facts, firstly, the Court of Appeal agreed that the reality of the issue was that RS was the successful party below. He had sought a Blue Badge; one had been awarded. He had refused to attend a mobility assessment; LBB had defended the claim on the basis that that was a mandatory requirement, but when compromising the claim, had issued the Badge without that assessment. LBB had also defended the claim on the basis that they had no lawful power to issue a Blue Badge where there was no physical disability, but had then done so prior to the change in the Regulations. It followed that the judge had been wrong to refuse to accept that this was an M (i) case.

The Court then affirmed the principle that where a Claimant was the successful party he should receive his costs unless there is a “good reason” to the contrary, and that for M (i) cases the fact that a Defendant was being “pragmatic” in settling was not a reason to refuse to award costs; the time for pragmatism was before the proceedings were issued.

Secondly, they also agreed that in any event the judge had erred in refusing to award RS his costs on the basis that the Defendant should not be “penalised” for taking a pragmatic view and settling once permission had been granted, where the revised Regulations would soon be in place. They held that this was a narrow view, and went on to hold that:

“... it is not always the case that making no award of costs will encourage settlement; the converse can occur, and this would disincentivise settlement. The issue must also be seen in the broader context of access to justice. This case concerned the rights of a person suffering from a disability to a social benefit that could ease the burdens of his everyday life. Sadly, to obtain the permit he was compelled to resort to litigation. … If those advising vulnerable litigants cannot recover their costs, they will be deterred from representing them in the first place. In short, and with respect to the Judge, I am of the conclusion that insofar as policy considerations were relevant, the analysis in the Ruling was partial and incorrect.”

The correct interpretation of the Regulations – an ongoing issue

If the judicial review claim had gone to a full hearing, the Court would have ruled as to the correct meaning of the Regulations. As the claim settled without any final hearing, both parties suggested that it would be disproportionate for the Court of Appeal to decide that point.

The Court of Appeal did not ultimately decide the correct interpretation of the Regulations, though Green LJ did comment that: “it is "tolerably clear" to me that at a final judicial review, the Appellant would have had the stronger case on the construction of the 2000 Regulations”.

We hope that this case will have highlighted to local councils the need for sensitivity when considering the needs of those with “hidden disabilities”. The recent alarming report by the BBC, about current practice in this area (following the amendment to the Regulations) suggests that this message is yet to be fully understood.1

RS was represented by James Packer and Klevis Taho in the Dalston Public Law team.
His counsel, who both provided their assistance with conspicuous skill, were Nicola Braganza of Garden Court in his judicial review and County Court claims, and Galina Ward of Landmark Chambers in his costs appeal.

1 https://www.bbc.co.uk/news/uk-55221474


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