JRs and new decisions - amend or reissue?

Very commonly in community care cases, a challenge is issued against one decision only for the authority to make a fresh decision which supersedes it.  The question then arises as to whether to seek permission to amend the original claim, or to withdraw it and issue a fresh one.  In a number of cases Ouseley J in particular has urged claimants to re-issue, so to ensure the new challenge is subject to permission procedure.  However, in R(Hussain) v SSHD [2016] EWCA Civ 1111 the Court of Appeal has recently criticised this approach as too restrictive.  Affirming guidance given in R v SSHD , ex p. Turgut [2001] 1 All ER 719, Sales LJ commented in particular that:

"... where a defendant public authority faces an application by a claimant for permission to apply for judicial review of a particular decision, accompanied by evidence filed by the claimant, and in its summary grounds of defence served with the acknowledgement of service the defendant says it has made a new, second, decision in the light of that evidence which is again adverse to the claimant, then 'It will in general be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings', and the claimant should normally be granted permission to amend the existing claim accordingly..."

He goes on to give guidance that may apply to other types of case, for example as to the need for a claimant to give the defendant sufficient notice of any proposed amendment and a fair opportunity to explain any objection.