Public law case update – Q2 2023

12 minute read
07 August 2023

In this August 2023 edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the second quarter of 2023 which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them. In particular, this quarter featured a number of interesting cases on policies, which can be found at the beginning of our list:

To publish or not to publish a policy?

In F v Surrey County Council, the claimant, who was a recovering alcoholic, challenged the decision of the defendant not to reimburse him for the cost of private medical treatment. The claimant's mother had arranged for him to receive medically assisted alcohol detoxification ('detox') treatment at a private facility, after she was allegedly told that her son could not receive detox treatment on the NHS until he had first undertaken an alcohol reduction programme. The defendant disputed that the claimant's mother was told this.

The claimant's grounds of challenge were that the defendant:

  1. operated an inflexible and/or irrational unpublished policy (Ground 1); and
  2. breached the claimant's rights under Article 14 ECHR read with Article 8 (Ground 2).

The policy clinicians in Surrey use to assess treatment for alcoholism is 'Surrey and Borders Partnership NHS Foundation Trust's Community Detox Team Operational Policy' dated June 2018 (the Operational Policy). The Operational Policy states that usually a patient would have to undergo an alcohol reduction programme before being eligible for detox treatment, but that the reduction programme could be foregone in exceptional circumstances.

The Operational Policy was not in the public domain and the claimant submitted that this was unlawful following the Supreme Court case of Lumba v Secretary of State for the Home Department. Effectively, the claimant's argument was that in light of Lumba, generally, "if a public authority has a policy relevant to the exercise of its discretion, it has an obligation to publish that policy".

It was not ultimately necessary for Chamberlain J to decide that issue, as the decision to refuse reimbursement did not hinge on what the claimant's mother had been told and, if it did, the claimant had not discharged the burden of proof in that regard. Therefore, the failure to publish the policy had no effect. However, he did comment on the relevance of context when considering whether a policy must be published following Lumba. He noted that Lumba concerned a secret detention policy that was at odds with a published one and was sceptical that the principle regarding publication could be transposed to the "very different" context of a policy for clinicians relating to the assessment of treatments options.

Chamberlain J also held that the Operational Policy was not inflexible or irrational as it did allow patients in exceptional circumstances to avoid the alcohol reduction programme, and this exception had been applied before (although not in the last three years). Therefore, the remainder of Ground 1 and Ground 2 fell away and the claim was dismissed in its entirety.

F can be contrasted with R (MXK & Ors) v Secretary of State for the Home Department which came before Chamberlain J some months later. MXK concerned the Secretary of State's policy to detain and question foreign nationals about NHS debts on their return to the UK.

In that case, Chamberlain J noted the proposition put forward by Lord Dyson in Lumba that, where the executive has a wide power of detention, there should be a clear statement of the circumstances in which that power will be exercised. Following that proposition, and on finding there was no public interest reason for not publishing the policy, he held that it was unlawful not to publish the policy.

Furthermore, Chamberlain J highlighted the advantage of publication in order to identify any errors, particularly in detention policies in order to avoid unlawful detention. This was relevant as the policy in MXK contained an error that allowed for detention for reasons outside those permitted by the Immigration Act 1971.

Policies, exceptional cases and previous decisions by others

The Home Secretary is responsible for policy regarding protective security for royalty and public figures. However, she delegates certain decisions to the Executive Committee for the Protection of Royalty and Public Figures (RAVEC).

In R (HRH The Duke of Sussex) v Secretary of State for the Home Department, the Home Secretary asked RAVEC to decide, in principle, whether an individual who ordinarily would not be permitted protective security should receive it on the basis that they paid for it. If the answer was 'yes', they would consider whether the Duke of Sussex should receive security on that basis.

RAVEC concluded that individuals should not be able to 'buy' protective security, as it was unfair to individuals without the means to do so, it would limit resource, and it was uncertain whether the Met Police could charge for security under section 25(1) of the Police Act 1996 (the 1996 Act).

The claimant applied for judicial review on five grounds:

  1. the decision could not be delegated to RAVEC, or if it could, RAVEC had fettered its discretion by adopting a rigid policy (Ground 1);
  2. RAVEC failed to comply with its duty to understand the scope of s25(1) (Ground 2);
  3. RAVEC failed to make reasonable enquires into (a) the scope of s25(1), (b) how it is exercised, and (c) who falls within RAVEC's remit (Ground 3);
  4. the decision was irrational, and
  5. the decision was procedurally unfair as RAVEC did not obtain representations.

The Court refused permission on all of them.

The Home Secretary did not dispute that the decision to provide special police services falls to the chief of police under s25(1). However, this was not an exercise of that power, but a decision explaining why it would be inappropriate for an individual to purchase police services. The claimant was still free to ask the chief of police for such services. The Court agreed that the relevant discretion was not RAVEC's to fetter. It was simply issuing its view on the matter. Moreover, there is no need for a policy to expressly indicate a willingness to consider exceptional cases.

In relation to understanding s25(1), the Court held that an authority does not have a duty to understand the scope of another authority's power before offering opinion on it. Therefore, Ground 2 and Ground 3(a) fell away.

In relation to Ground 3(b), a decision-maker is not under a general duty to inform themselves of circumstances in which a discretion has been exercised previously, although such previous decisions can be relevant if "very closely analogous". There were no such examples in this case, so not examining previous exercises of s25(1) was entirely rational. As for limb (c), the decision was applicable to all individuals so there was no need to distinguish RAVEC's remit. Therefore, Ground 3 was refused permission.

Furthermore, the Court held that there was nothing arguably irrational in RAVEC's reasoning. Representations would have been needed only at the second stage if RAVEC had decided that it was possible to buy protection services. Therefore, permission was refused for Grounds 4 and 5 also.

A reminder that the duty to undertake sufficient inquiry might include a duty to consult

PM is a High Court decision involving the duty to consult on changes to guidance in respect of financial support schemes for trafficking victims who were also asylum seekers. PM was one such victim.

In February 2019, PM began to receive £35 per week as a potential trafficking victim. Despite that support, she became homeless.

In March 2020, guidance came into force that required potential trafficking victims seeking asylum to receive £65 per week (the Guidance).

In May 2020, PM was moved into 'initial' (catered) accommodation for asylum seekers. She continued to receive £35, plus £5 in asylum support, per week.

In July 2020, the Secretary of State (SoS) stopped all support payments to victims and potential victims of trafficking in initial accommodation (the Cessation Decision).

In August 2020, the SoS replaced the Guidance with new guidance providing £25.40 per week to those in initial accommodation (the Amended Guidance).

In February 2021, PM was provided with long-term self-catered accommodation, at which point she began to receive £65 per week.

PM alleged that the SoS had failed to:

  1. pay those in PM's situation proper financial support in accordance with the Guidance;
  2. consult and/or make appropriate inquiry when instating significantly lower financial support in the Amended Guidance; and
  3. provide adequate financial support to meet victims' essential living needs.

On Ground 1, Steyn J applied a recent similar decision on the same policy (R (JB Ghana)) to hold that the SoS unlawfully failed to pay PM the proper financial support of £65 per week.

She rejected Ground 3, finding on the facts that PM's essential living needs were met.

On Ground 2, Steyn J noted that the Amended Guidance was created in a context of urgency, resulting from the need to remedy the situation created by what she described as the clearly unlawful and "absolutely indefensible" Cessation Decision.

Steyn J agreed with PM that the SoS had unreasonably failed to take any adequate steps to acquaint herself with information relevant to the effect of the Amended Guidance. That included a decision not to consult, based on mistaken view that the proposal introduced payments to fill a gap rather than actually reducing support. She rejected the argument that the Amended Guidance was just a clarification (and not a policy change). The Amended Guidance was clearly a new policy. Although it was intended to be temporary, this did not remove the need for adequate inquiry into its effects.

Steyn J held that the urgency did not justify the failure to undertake sufficient inquiry and to consult outside bodies on the impact of the Amended Guidance. That urgency could have been remedied simply by withdrawing the Cessation Decision.

Although the Amended Guidance was unlawful, the decision to provide £25.40 per week was not irrational in light of victims' recovery needs. There was no evidence as to why the former rate of £35 was adopted and there was evidence – including in relation to how PM spent the money – that £25.40 was sufficient to meet those needs.

The Secretary of State successfully defends his decision to enfranchise military accommodation

In R (Annington Property Limited) v Secretary of State for Defence, the facts were as follows: in 1996, the Secretary of State for Defence granted Annington Property Limited (APL) 999-year headleases for 80% of the MoD's service family accommodation. APL then granted 200-year underleases of the properties (the 1996 Agreement).

The rise of house prices since 1996 led to the agreement becoming increasingly poor value for the defendant who did not benefit from the rising value of the properties but was stuck with the costs of rent and repair.

Following the settlement of a periodic rent review, the defendant served eight enfranchisement notices under the Leasehold Reform Act 1967 (the 1967 Act), and formed a wholly-owned company to hold the freehold of the relevant properties. APL and its parent companies (Annington) challenged the notices on a number of grounds, encompassing property law and public law.

The property law claim failed. Annington argued that, in public law, the decision:

  1. was made for improper purposes;
  2. breached Annington's legitimate expectation that: (a) under the 1996 Agreement and subsequent agreements, they were entitled to receive rent and obtain the freehold of sites for a nominal amount; and (b) under Crown Estate guidance from 2016, the defendant could not enfranchise without APL's permission; and
  3. unlawfully inferred with Annington's right to peaceful enjoyment of their possessions in breach of Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights.

Before turning to those issues, the Court considered the principle of Crown indivisibility and confirmed that a company solely owned by the Secretary of State is a separate legal entity and not part of the Crown.

On improper purpose, Annington claimed that the defendant served the notices for improper purposes including undercompensating Annington and punishing them for their success.

The Court disagreed and held that the defendant decided to serve the enfranchisement notices for the purpose of obtaining better value for money for taxpayers, which was perfectly acceptable. Those motives were not to punish Annington or illegitimately escape agreements; it was to aid the public purse.

On legitimate expectation, Holgate J highlighted the "critical difference" between a public authority granting a private law right and it promising not to rely on a private law provision to override, modify or acquire that right. The granting of a lease does not itself provide an expectation that the lessor will not exercise its statutory rights. There was, therefore, no expectation that the defendant would not enfranchise.

The Court also held there was no legitimate expectation that the defendant needed APL's consent to enfranchise. The 1967 Act is clear that consent is not needed, and the 2016 policy relates to enfranchisement that can only be enacted under the Leasehold Reform, Housing and Urban Development Act 1993 (which was not the case here).

Finally, in James v United Kingdom, it was held that enfranchisement under the 1967 Act was compatible with A1P1 as, even if it deprived people of their possessions, the right to enfranchise was provided in the public interest and the legislature has a wide discretion in that respect.

Holgate J noted that since James, courts continue to recognise the 1967 Act as compatible with A1P1, and there was no justification in this case to depart from that line.

Even on the circumstances of the case, the notices did not impose a disproportionate burden on Annington. There was therefore no breach of A1P1.

The Court of Appeal rules there is no implied power for an office holder to revoke a decision and reopen an investigation

In R (Piffs Elm Limited) v Commission for Local Administration in England, Piffs Elm Limited sought planning permission from Tewkesbury Borough Council for an industrial development. After a second refusal, Piffs Elm applied for judicial review (JR1).

During those proceedings, Piffs Elm enquired about making a third application and requested a waiver of the application fee. The Council refused, warning that it had the power to decline to decide a further application under section 70A of the Town and Country Planning Act 1990 (the 1990 Act), as Piffs Elm had made more than one similar application and had not appealed the previous refusals to the Secretary of State.

Piffs Elm made a third application, which the Council refused to decide.

Subsequently, JR1 concluded that there was an appearance of bias in the second refusal, but did not quash the Council's decision, as Piffs Elm still had the opportunity to appeal it. The Council outlined to Piffs Elm the steps it would take in light of the JR1 decision, but confirmed it would not refund the fee for the third application.

Piffs Elm complained to the Council regarding the retention of the fee, which the Council rejected. The complaint was then referred to the Ombudsman who concluded that the Council had "a general discretion to make refunds if it is appropriate to do so", and the Council was at fault for not considering whether to use its discretion (Decision 1).

The Council sent a pre-action letter to the Ombudsman arguing either that it had no power to refund the fee or the position was too uncertain. The Ombudsman re-opened the investigation and withdrew Decision 1, as he believed he had made a public law error (Decision 2).

The Ombudsman then issued a further decision which concluded that the Council was not at fault as it was unclear whether the Council had a discretion to refund the fee, and the Ombudsman could not make a legal determination as to whether such a discretion existed; that was for a court decide (Decision 3).

Piffs Elms challenged the Ombudsman's decisions. At first instance, the High Court held that, although the Ombudsman had no express power to withdraw a decision, he had an implied power to do so under section 12 of the Interpretation Act 1978 (the 1978 Act).

The Court of Appeal disagreed. Section 12 states that, unless the contrary intention appears, where a statutory power is conferred it is implied that the power can be exercised from time to time. There is no reference to revocation. If Parliament intended for there to be a power to revoke a decision it would have expressly said so – as it did in s14 of the 1978 Act which implies a power to revoke rules, regulations and byelaws. Therefore, Decision 2 was unlawful.

Moreover, the Court of Appeal held that the Ombudsman did not have jurisdiction to decide a question of law. Therefore, Decision 1 was unlawful and Decision 3 was correct.

Welcome clarification on the role of juniors in decision-making

This is a Court of Appeal decision in relation to a case we covered in a previous update that featured the use of appeal planning officers (APOs), junior caseworkers who assist planning inspectors.

The respondent ran an advertising agency. His application to place an illuminated advertisement in Shoreditch High Street was refused by Hackney Council. The respondent appealed to the Secretary of State who appointed a planning inspector to determine the appeal. An APO visited the site and drafted a report recommending rejection of the application. The inspector agreed with her reasoning and recommendation so he topped and tailed the report she had drafted, and issued it in his name.

The High Court held the inspector did not fail to determine the appeal, so he had not unlawfully sub-delegated his decision-making functions. However, Kerr J held that the process was unfair because the APO had been required to exercise a professional judgement despite not being "professionally equipped" to do so. That unfairness was not cured by the fact that the inspector reviewed her draft report, and had the opportunity to change it, but did not.

We noted our surprise at the decision when we covered it first and it is interesting to note that the respondent did not contest the Secretary of State's appeal.

The Court of Appeal has now overruled the judgment in respect of the fairness decision. Lewis LJ noted that there was "nothing objectionable in principle" in the APO making a reasoned recommendation, so long as the ultimate decision remained with the inspector. It was up to the inspector to decide whether or not he accepted her recommendation and therefore the appeal.

The Court rejected Kerr J's characterisation of the APO as being "seriously unqualified" to exercise the judgement she made, given that she had a relevant degree in the subject and previous training on the appeals she was considering.

Finally, in reference to Kerr J's obiter comments, Lewis LJ clarified that in the context of this case, procedural fairness did not require the APO's draft report to be provided to the parties for comment before the final decision. The APO was simply part of the internal machinery within the inspectorate for dealing with appeals.

This will be a welcome verdict for those decision-makers who benefit from junior input in preparing draft reports. It confirms that so long as the decision-maker considers the evidence and makes the ultimate decision themselves, it is acceptable for junior staff to make recommendations as part of the preparatory work.

For more information and guidance, contact our Public Law and Regulation team.

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