Case Summary - Time Limits & Judicial Review: Surrey County Council v R (BC) [2025]

Trinity's Parissa Najah, who is a member of Chambers' Administrative and Public Law team, has provided the following summary of the recent Court of Appeal decision of Surrey County Council v R(BC) [2025] EWCA Civ 719.

The Court of Appeal has quashed the decision of the High Court to grant permission to bring judicial review proceedings despite delay.

The substantive decision addresses the duties owed by local authorities to children under s.20 of the Children Act 1989 and was also overturned. This summary shall focus upon the decision as it relates to time limits and delay in bringing proceedings.

Factual Background

BC was born on 25 December 2001. He had a history of support needs and involvement with local authority Early Help Services.

In 2018 he moved to live with his friend K and K’s mother, after his own mother became increasingly concerned about his drug use.

In September 2019, BC made a homelessness application. Surrey County Council (SCC) found that K’s mother was happy to house BC and Early Help was needed, rather than accommodation under the Children Act 1989.

On 28 October 2019, SCC closed BC’s case. The last contact that SCC had with BC was in November 2019. BC was later asked to leave the property he was staying in by K’s mother and he was without accommodation.

Pre-Action Chronology

Over 2 ½ years later, on 12 August 2021, Lawstop provided a letter before action on BC’s behalf claiming that SCC had failed in their various statutory duties towards BC when he was a child. The letter did not mention section 20 of the Children Act 1989.  

SCC replied on 23 August 2021 refuting the claims made and stating that a formal Subject Access Request had to be made.

On 9 September 2021 a further letter was provided by Lawstop on behalf of BC. That letter made the first reference to Section 20 of the Children Act 1989. There was a response from SCC on 16 September 2021 denying the claim, a further letter from Lawstop on 11 October 2021 and another response from SCC on 12 October.

There then followed a subject access request. Redacted documents were provided on 14 February 2022. Lawstop made a formal request for SCC to comply with their Children Act duties on 27 April 2022. SCC responded on 12 May 2022.

Proceedings were issued on 9 August 2022 on the basis that the local housing authority owed a duty to support him and provide accommodation under s.20 of the Children Act 1989 when he presented as homeless in September 2019.

The High Court Decision on Delay and Extension of Time

The claim was allowed by Calver J in the High Court who found that the claim had been brought in time on the basis that SCC’s final refusal of the request to comply with their duties, dated 12 May 2022, “was challenged in time”.

In the alternative, Calver J found that an extension of time up to the date of service of the claim on 9 August 2022 was appropriate as he accepted BC’s arguments regarding accessing legal advice and delays in receiving documents from SCC.

Calver J further rejected SCC’s case on delay on the basis that he found that there was an ongoing breach by SCC and/or a “continuing state of affairs”.

Law on Time Limits and Delay

CPR 54.5 provides that, in respect of judicial review:

(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

(2) The time limits in this rule may not be extended by agreement between the parties.

Court of Appeal Decision on Time Limits and Delay

The Court of Appeal provided a brief review of relevant case law [16-17] and had particular regard to the case of R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 which they termed ‘salutary reading for all those who need to comply with the short time limit imposed in judicial review cases’ [18].

The court confirmed that ‘since a failure to comply with r.54(5) is a complete answer to a judicial review claim, it is usually best to deal with such a threshold issue at the outset’ [25] and that this consideration should begin with identification of the length of any delay [35].

The court considered the timeline following SCC’s disclosure in February 2022 and noted that BC was well outside of the 3 month backstop for judicial review and was culpable for the majority of the delay [39-40]. There was also nothing to suggest they had acted prompt, as they are required to, there being no justification in the documents as to the delay [41]. 

In relation to the period of time whilst a subject access request was sought, the Court found that:

an applicant in judicial review proceedings is not entitled to try and justify his or her delay on the basis that further information was or might be available from the respondent which would improve or affect their grounds of challenge [42].

Judicial review is not a regime where a claimant is entitled to wait, dotting every available ‘i’ and crossing every possible ‘t’, before making a claim for judicial review. If documents are potentially important and outstanding, then one possibility is for a claimant to issue proceedings, and then seek to delay the hearing of the permission application until after disclosure. What a claimant cannot do is to delay issuing proceedings in the hope that something might turn up on disclosure [43].

The court then considered the merits of the application to extend time. They concluded that BC has been aware of the facts of the case that founded his claim against SCC [47-48].

It was found that the claim was out of time and permission to bring a judicial review challenge should have been refused on that basis.

In relation to the issue of continuing duty, the court noted that judicial review is a means to challenge the lawfulness of a particular decision. It is not concerned with a general review of a local authority’s statutory duty. In the present case, therefore, we are concerned only with the decision in September 2019 [145]. It found that there had been confusion between a continuing state of affairs and accrued rights, if BC had claimed in time, he could act on those accrued rights [151].

Comment

Although the court may extend this time limit pursuant to r.3.1(2)(a), there is extensive case law confirming the need for adherence to time limits.

This case is in line with the general flavour of the case law and pre-action protocol for judicial review in that it seeks to promote the need for certainty in relation to decisions taken by public bodies.

The key takeaway from this case and others is that a Claimant may still be expected to issue proceedings before they have detailed knowledge of the relevant issues. The court will bear in mind that it is open to a claimant to apply to amend its grounds and that full disclosure is unnecessary to issue judicial review proceedings.