A High Court judge has ruled that the London Borough of Wandsworth breached its duty of candour after its evidence in urgent judicial review proceedings failed to disclose communications received from a claimant challenging the ending of emergency accommodation.
What did the High Court decide?
In R (Alicja Balcerak) v London Borough of Wandsworth (Children’s Services Directorate) [2026] EWHC 2727 (Admin), Fordham J concluded that the council had breached its duty of candour and cooperation in the judicial review process. The judgment was handed down on 28 October 2026.
The breach concerned a witness statement which said that the council had not received a “substantive response” to emails sent to Ms Balcerak. The council did not refer to, or exhibit, a response she had sent. The judge held that, even if the council considered the reply inadequate because it did not provide the requested information, it was not entitled to leave the communication out of its account to the court.
How did the dispute arise?
Ms Balcerak’s claim concerned the ending of emergency accommodation provided under section 17 of the Children Act 1989. She argued that the council had acted unlawfully by abruptly ending the accommodation in early September 2026 and applied for an interim injunction requiring the council to provide new accommodation.
The application was considered urgently. On 16 September 2026, Thornton J directed the council to provide a written response by 10am on 18 September, with the papers to be referred to a judge for further consideration before the weekend. The council filed its response before the deadline, and Fordham J refused interim relief later that morning.
- The emergency accommodation at the centre of the claim was ended, according to the claimant’s case.
- Thornton J directed an urgent response from the council.
- Ms Balcerak sent a response to the council by email.
- Fordham J refused interim relief; the claimant then raised the omitted email with the court.
- The High Court handed down its judgment on the duty of candour issue.
Why did the council breach its duty of candour?
The judge identified two linked failures: the witness statement said that no “substantive response” had been received, and the council did not disclose or exhibit the communications it had received from the claimant. The council was entitled to explain that it regarded the reply as incomplete, but the court needed to see the reply itself so it could assess the position independently.
The omission mattered because the judge had relied on the witness statement when referring to unanswered emails and the claimant’s apparent lack of engagement. Fordham J stressed that the urgent timetable intensified the problem: the claimant had no formal right of reply within the timetable and the council effectively had the last word. That placed a particular responsibility on the authority to provide a complete and fair picture.
“It was not, however, open to the Defendant to make no reference to the response which it had received.”
— Fordham J, [2026] EWHC 2727 (Admin)
The court also acknowledged the context. Fordham J was satisfied that neither the council nor the social worker intended to mislead the court or secure a one-sided advantage. The material had been assembled under time pressure, the council acknowledged a serious shortcoming in its witness evidence and exhibits, and it offered an unreserved apology. The judge accepted that apology.
Did the breach change the housing decision?
No. After receiving Ms Balcerak’s email, Fordham J reconsidered whether it materially undermined the decision refusing interim relief. He concluded that it did not, and made a further order confirming that the refusal and the substance of the original reasons remained in place.
The original decision had found no viable legal challenge to the ending of the short-term emergency accommodation. The judge considered that the claimant should engage with the homelessness system and the council’s Housing Services so that decisions could be made on the basis of need and the applicable criteria, while safeguarding the children as appropriate.
Fordham J also declined the claimant’s requests for costs at litigant-in-person rates and for damages or a summary restitution order. The court found no basis for a monetary order. The candour breach did not make the underlying housing claim viable, and the judge concluded that the breach had not caused loss, damage or legal costs. The judgment states that the duty of candour is not, in itself, an actionable duty sounding in damages.
What does the judgment mean for public bodies?
The judgment is a reminder that the duty of candour requires public authorities to assist the court with a full and accurate account of relevant events, including material that may qualify or contradict their own presentation. A public body may explain why it considers a communication incomplete or unpersuasive, but it should not leave the court to infer that a communication does not exist or reconstruct the evidence from scattered references.
The point is especially important in urgent applications, where the court may have limited time and the claimant may have little opportunity to respond before a decision is made. Authorities and their legal representatives should check that relevant correspondence is accurately described and exhibited, and should make clear any disagreement about its significance.
The outcome is carefully limited. The High Court found a breach of candour, but it did not overturn the refusal of interim accommodation or award financial relief. The judgment therefore distinguishes the public authority’s obligation to be transparent in litigation from the separate question of whether the claimant’s substantive challenge succeeds.
Frequently asked questions
What is the duty of candour in judicial review?
It requires a public authority involved in judicial review to assist the court with a fair and accurate account of relevant matters. In this case, the council should have referred to and exhibited the claimant’s response, even though it considered the response incomplete.
Did the High Court find that Wandsworth unlawfully ended the accommodation?
No. The judgment addressed the duty of candour issue. Fordham J confirmed that the earlier refusal of interim relief stood and that the substantive housing challenge had not been shown to be viable.
Did the claimant receive compensation or costs?
No. The judge declined to make a costs or monetary order and found that the candour breach did not establish a viable damages claim or cause the claimant loss or legal costs.
Did the council deliberately mislead the court?
The judge was satisfied that there was no intention by the council or the social worker to mislead the court. The authority acknowledged a serious shortcoming in its evidence and exhibits and offered an unreserved apology, which the court accepted.
Why was the omission particularly serious?
The application was being considered urgently, and the timetable effectively gave the council the last word. The judge said the authority had a special responsibility to present the facts with complete transparency and fairness.