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• 01 Nov 2024

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  Yes. English case law has found that the word "secure is an ordinary English word and needs no gloss - what is plain is that the duty has no "reasonable endeavours" escape clause available to excuse failure to secure the provision specified”:  ZK v LB Redbridge [2020] EWCA Civ 1597 para 13, R (BA) v Nottingham CC [2021] EWHC 13348 (Admin) para 27. There appears to be no good reason why this would not also be the case under ALNET. This was also the case under the old Welsh law under the EA 1996: N v North Tyneside BC [2010] EWCA Civ 135. 

  Any complaint that the provision in the IDP has not been provided needs to be made to the Administrative Court by way of a claim for judicial review and not the ETW. 

  While the requirement to make the provision is absolute, the court in judicial review proceedings has a discretion on whether it should order the provision to be made. The Supreme Court set out factors that would be relevant to whether a court should exercise its discretion to make a mandatory order in the case of R (Imam) v Croydon LBC [2023] UKSC 45 para 40-60, 66-71. This was decided in the context of housing law, but the principles will be of equal relevance:

  • The onus is on the LA to explain to the court why a mandatory order should not be made. 
  • 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. But different types of order are available, and it may be that due enforcement of the law can be sufficiently vindicated by some order other than a mandatory order.
  • The LA’s ability to comply with a mandatory order is relevant. Where the LA does not have resources to comply with the order is a “highly material factor.” However, “a public authority which has limited resources available for use to meet its statutory duties and to fulfil functions which are merely discretionary is obliged to give priority to using them to meet its duties.” 
  • Consideration should be given to: 
    • whether the LA has a general contingency fund, and the cost could be met by that fund.
    • The extent to which the LA had notice that it was not complying with its duty but failed to take the opportunity to react to that in good time.
    • The extent of the impact on the individual to whom the duty is owed. 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 it may justify a mandatory order. 
  • Whether the LA is taking any steps to address the gap in finances.
  • Whether making the order would give the Claimant undue priority over others in a similar situation. 

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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