The [fictional] Inner City Regeneration Act provides for the establishment of the Inner City Regeneration Fund, to be administered by a new body called the Authority for Regeneration of Inner Cities [ARIC]. Section 1 of the Act provides that in considering applications for grants ARIC should seek “to promote initiatives designed to address problems presented to inner cities by homeless persons”. The Act does not provide any mechanism for appealing against ARIC’s decisions.
ARIC refused an application for a grant made by Rummidge Society for the Homeless [RSFH] to replace the heating system in their shelter for homeless persons, located just off Old Street in Rummidge Inner City. In their application the Society had indicated that without this financial assistance the shelter would probably have to close. This would mean that there would be no overnight accommodation for homeless persons in the Inner City, which could cause problems for the police and others.
Explaining its decision to refuse grant support, ARIC stated that it was not its policy to support initiatives designed to cater for the needs or well being of homeless persons. Its primary purposes, it said, are to dissuade such persons from establishing themselves in inner city areas and to minimise their impact on the enjoyment of inner cities by others. The Chief Executive of ARIC is a School Governor of an Independent School located next to the Shelter for the Homeless.
When RSFH applied for planning permission to open the shelter initially five years ago, the School submitted a formal objection to the local planning authority arguing that the use of the building as a homeless shelter would detrimentally affect the school. Advise the Rummidge Society for the Homeless as to the grounds they may have for challenging this decision by way of judicial review. If an individual has suffered a grievance at the hands of a public body, he may be able to obtain redress through the courts.
So in order to address this problem we must work out if there has been any illegality on ARIC’s part for Rummidge Society for the Homeless to be able to claim judicial review. A decision maker acts illegally if it fails to take into account a relevant consideration, that is, it doesn’t consider something which it ought to consider. A relevant consideration in this particular example would seem to be to not do anything to increase the problems homeless people cause upon the inner city areas.
This seems to be what ARIC have done, they have failed to consider the implications of their actions by not providing heating for RSFH. For if they had it would have been apparent that the trouble to police and townspeople would have been increased, thus not fulfilling their statutory duty. In R v Somerset County Council ex p Fewings (1995)1, the decision of the local authority was able to be reviewed because in reaching the decision to impose a ban on hunting on ethical grounds, councillors had failed to consider whether such a ban was imposed for the benefit, improvement or development of the land pursuant to s. 22 (1) of the Local Government Act 1972. However here under the grounds of irrelevant and relevant considerations we run into a problem for although it seems to suggest very strongly that ARIC have not considered the relevant factors and considered the irrelevant ones, (i. e. the chief executive is a headmaster of the school next door to the shelter) it is very hard to identify all reasons that the decision maker made when coming to their conclusion.
Unless the decision maker expressly reveals that they have been influenced by certain factors and giving reasons then the decision maker must be given the “margin of appreciation” a discretion over which are the more important considerations. Simon Brown LJ in R v Somerset county council ex. parte Fewings states “the decision maker enjoys a margin of appreciation within which… he may decide just what considerations should play a part in his process”2.
Thus if RSFH tried to take ARIC to review on only this basis then I don’t think they would succeed, all the ARIC needs to do is say that they considered all aspects and used their discretion on deciding which elements were important. The courts will tend not to want to interfere on these grounds alone so I would not recommend bringing judicial review on this basis alone. Another rule that I feel has been breached here and could be potential grounds for review is that of improper purpose and there are good justifications for this winning on review.
The definition of improper purpose is when a decision maker does not use a power given to it by Parliament for the purposes or purposes for which it was given the power. So in our example we see the power given to ARIC by statute, the Regeneration Act, being “to promote initiatives designed to address problems presented to inner cities by homeless persons”, however in practice this is not what we see. The statute expressly requires this body to address the problem of homelessness, and by not granting RSFH the money needed to maintain their home ARIC are in direct violation of the statute.
They are well aware this course of action will lead to the closure of this shelter and but simply want to move the homeless out instead of helping. They have used their power for an improper purpose for they have simply moved the problem instead of addressing it. Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food (1968)3 stated that the “intention of the statute” must be upheld as well as being “read as a whole”. This intention of this statute could quite possibly be read this broadly. The Act is to “address problems presented to inner city areas” perhaps the shelter was a nuisance and a problem to the school?
We do have the evidence of a formal complaint made by the school as a shelter would “detrimentally affect” the school. Nonetheless surely the intention of Parliament when they conferred this power was not to create the situation we are faced with here where the homeless are left without shelter thus creating further problems on the streets for police and townspeople, but to help the homeless. So it is in this way the heating system not being able to be renewed is in direct violation of the statute therefore illegal.
A misinterpretation of statute can be remedied by a quashing order, but if it was decided that a public duty had been breached (ie, to help the homeless) then a mandatory order would be imposed. This commands a body to perform this duty, normally the duty imposed on it by statute. Another consideration under improper purpose is the position of the Chief Executive of ARIC who turned down the grant to the shelter. His position as Headmaster of a neighbouring school arguably could be the motivation behind the refusal of the money.
This motivation is unlawful as it is not addressing the effect of homelessness on the city, as required in the statutory purpose. One question to ask is has the unauthorised purpose substantially influenced the actors conduct? As LJ Glidewell comments “that its [decision making body] action will be lawful provided the permitted purpose is the true and dominant purpose behind the act”, in this case I feel the proximity of the shelter to the school was a greater influence, or at least seen to be, than the real purpose of the act.
A good example of this has been highlighted in R v Lewisham London Borough Council ex p Shell UK Ltd4, where the unlawful motive substantially influenced the decision. It could just be noted at this stage there is an option for arguing Wednesbury unreasonableness, although I am cautious of doing so without it being in relation to another point. The courts generally do not like to side with Wednesbury unreasonableness as a principle for review on its own.
This decision is unreasonable because of the disproportionate balancing of the considerations as discussed above, and this is why it is unreasonable. If Parliament gives a discretionary power to a public body then this discretion must actually be acted upon. If it does not do this then it can be said that it is fettering its discretion. It is forbidden for a body to adopt an inflexible policy which stops it exercising its discretion. In our example it seems ARIC followed its policy, “to dissuade such persons from establishing themselves in inner city areas… and we see no evidence that it considered any other factors when reaching its outcome. The justification for their policy contradicts itself because by not giving the grant they will be not dissuading but encouraging “such persons from establishing themselves in inner city areas” but on the streets instead of in shelters and not minimising impact but hindering “the enjoyment of inner cities by others”. The courts are insistent that each case should be judged on a case by case basis by a decision maker and should not be prejudged in any way.
Thus in British Oxygen Co Ltd v Minister of Technology (1971)5, the House of Lords held that the company had not acted with inflexibility by adopting a policy because they were prepared to make exceptions. Nevertheless on the other hand the strict policy which indiscriminately banned professional journalists from visiting prisoners in R v. Secretary of State for the Home Department ex. parte Simms (1999)6 was ruled to be too rigid and inflexible.
However it cannot be said that in practice decision making bodies do not develop and use policies which help them make decisions. The benefits of these are clear, the consistency between cases would create a level of fairness and will inevitably speed up the entire decision making process. Although fettering discretion is not allowed there is no rule against a body having a policy as long as these policies are not rigidly adhered to. Lord Woolf comments that decisions maker must have an “open mind”7 or otherwise the decision is unlawful.
ARICs decision seems to us, without any further information to be purely based upon their standard policy, as this is the justification they have given. So because it seems they have stuck rigidly to their policy the decision will be unlawful. The issue of bias needs to be addressed now for the Chief Executive of ARIC, the body who has refused the shelter essential money is also the Headmaster of a school which is situated next to this shelter for the homeless supplied by RSFH.
This looks extremely biased, the principles that govern this are the rules of natural justice are the common law guidelines that now are backed up by the Human Rights Act 1998 art 6 (1) ECHR, “right to a fair… and an independent and impartial tribunal”. The very fact that the school made a formal objection even before the shelter was built shows the feeling of objection from the school; we can deduce from this that the closing of the shelter would be seen as a victory for the school. The position of the Chief Executive is a worrying one with regard to bias, in R v.
Sussex Justices, ex parte McCarthy (1924)8 the court held ” it is of fundamental importance that justice should not only be done but should be manifestly and undoubtedly be seen to be done”. In this case although we do not know that the Headmaster was prejudiced it can be the truth to say there is a real danger of this occurring. Disqualification of a judge was seen when they are closely involved with one of the parties, i. e. “a fair-minded informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased9”.
A good example of this would be the judge’s involvement, Lord Hoffman, with Amnesty International (a group that supports extradition) whilst judging General Pinochet’s extradition10. This also applies to other authorities and it can be said it is a general rule that public authorities must act fairly when making their decisions. I think it is clear that simply the position of the Chief Executive and his role as a Headmaster shows partiality and therefore illegal. To conclude, there are I feel significant grounds that RSFH could bring ARIC to Judicial review.
The problem facing us is the lack of justification from ARIC over their decision; the one they have offered is narrow and flippant to the ramifications of denying the grant on the surrounding area. Not only has the proximity to a school seemed to have influenced their decision but also the Chief Executive acting within a dual role capacity, as a Headmaster and decision maker for ARIC, jeopardises the ability to be unbiased. When we take all this into account it seems that RSFH should be able to have the initial decision quashed and ARIC should be forced to reconsider.