Authoritys Right of Broad Discretion - Essay Example

?Instructions: Under section 10 of the Education (Scholarships and Other Benefits) Act (the Act) local education ities "... may pay the whole or any part of the tuition fees, boarding or lodging fees and expenses payable in respect of children attending schools at which fees are payable provided that the local education authority is satisfied: a) that such payment is required to be made in order to prevent or relieve financial hardship; b) that such funding is not obtainable from other sources; c) that alternative forms of study achieving the same qualifications are unavailable or inappropriate or; d) that there other exceptional circumstances.” Mr and Mrs Elliot applied to their local education authority (the Council) for a grant to enable their son, Billy, to attend a full time residential ballet school. In support of their application they contended that there was no comparable course available in their local area and they could not possibly afford the fees for the residential ballet school. They also claimed (under "other exceptional circumstances") that their son was the victim of bullying at his local school, because of his interest in ballet. Mr and Mrs Elliot indicated that they would welcome the opportunity to meet with officers of the Council to provide any necessary further information and generally to speak in support of their application. The Council rejected the application without giving the Elliots the opportunity of making oral representations. When Mrs Elliot telephoned the Grants Application Officer of the Council, she was informed that, because of a reduction in the education budget, the range of courses which could be funded had been reduced and ballet schools had been excluded. When Mrs Elliot raised the issue of bullying, she was told that, in any event, the Council never considered "other exceptional circumstances" because they inevitably led to lengthy disputes. Finally the Grants Application Officer pointed out that the Council was not under a duty to make any grants and it could exercise its discretionary power as it thought appropriate. Some weeks later the Elliots come to see you; they want the Council to reconsider its decision. Please advise on the chances of making a successful application for judicial review. Word limit: 1500 (+/-10%) Legal Advice Introduction Mr. and Mrs. Elliot are seeking advice on the prospects of successfully applying for judicial review against a decision by their local authority (‘the Council’) to refuse their son a grant to study at a residential ballot school. This advice has been divided into the following sections: Factual Information; The Remit of Judicial Review; The Requirements of Judicial Review; Legal Analysis of the Issues; and Conclusion. Factual Information In summary, Mr. and Mrs. Elliot (‘the Elliots’) made an application to their Council, on behalf of their son, Billy, for a grant for their son to study at a residential ballot school. The application was made on the following grounds: there were no comparable schools available within a reasonable proximity of their home; they were unable to pay the fees of the available schools; and, under the heading “other exceptional circumstances”, they argued that their son had been the victim of bullying at his local school due to his interest in ballot dancing. The Council rejected the application without having considered oral representations from the Elliots. The Grants Application Officer informed Mrs. Elliot, by telephone, that the application had been rejected because ballot schools had been excluded from the range of courses which were being funded. Mrs. Elliot was further informed that the Council never considered issues falling under "other exceptional circumstances" due to the ‘lengthy disputes’ which often resulted. The Grants Application Officer stated that in any event the Council had no duty to award a grant as they could exercise their discretion as they deemed appropriate in the circumstances. In light of the above, the Elliots seek advice on the prospects of challenging the Council’s decision by way of applying for judicial review. The Remit of Judicial Review It is important to note that judicial review proceedings are limited in scope. For instance, they do not provide a review of the substantive merits of a case, but instead consider whether or not the body making the decision has acted unlawfully or unfairly. Notwithstanding this, the court have at their disposal following remedies: quashing orders; prohibiting orders; mandatory orders; declarations; injunctions; and / or damages. Furthermore, an application to move for judicial review can only be made on limited grounds. Lord Diplock summarised the grounds as follows: illegality; irrationality (or Wednesbury unreasonableness); and, procedurally impropriety (Civil Service Unions v Minister for the Civil Service (1985). Albeit, the issue of proportionality ought to also be taken into account when an administrative decision is made which affects a person’s rights under the European Convention on Human Rights (‘ECHR’) or European Union law. The Requirements of Judicial Review There are certain requirements to be met before an applicant can make an application for judicial review in the High Court. Firstly, the applicant must have what is termed ‘locus standi’; or sufficient connection with the case (point 1). Secondly, the decision being challenged must have been made by a public body (s.7, Human Rights Act 1998) (point 2). Thirdly, the applicant must have exhausted all other avenues of appeal before bringing such a case (point 3). Finally, an application must be brought promptly, or, at the very latest, within 3 months of the decision being challenged (Civil Procedure Rule 1998 (‘CPR’), Part 54.5) (point 4). Point 1 The courts have provided a liberal interpretation to the meaning to be given to locus standi (Lord Diplock, Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd.(1982)). This requirement is satisfied here because the Elliots are bringing the case on the behalf of their son, Billy, as his “litigation friend”. Given that Billy is 13 years of age, pursuant to CPR 21.2(2), he is legally required to have a “litigation friend” to act on his behalf throughout the duration of court proceedings unless otherwise ordered by the court (CPR 21.2.(3)). The Elliots can only act as Billy’s “litigation friend”, however, if they first file a ‘certificate of suitability’ outlining that they satisfy the conditions set out at CPR 21.4(3). Point 2 The Council carries out public functions and, as such, Council decisions are subject to the supervisory jurisdiction of the High Court by way of judicial review. Point 3 Before commencing judicial review proceedings the Elliots must first apply to the Council for a review. Therefore, in the first instance, they should contact the Council to find out what their review procedures are and make this application before attempting to apply for judicial review. Point 4 Once all other avenues have been exhausted, an application for judicial review should be initiated promptly in the High Court. Legal Analysis of the Issues The Council’s decision can be narrowed down to three salient issues, namely: (i) the failure of the Council to hear oral representations; (ii) the refusal to consider “other exceptional circumstances”; and, (iii) whether or not the Council is obliged to make a grant? (i) Failure of the Council to hear oral representations. A person is normally entitled to a fair hearing at common law if s/he is directly affected by the decision (Re Hamilton; Re Forrest (1981), p. 1045B). Albeit, whether or not a hearing is fair depends on the circumstances of a case (Lord Russell, Fairmount Investments Ltd v Secretary of State for the Environment (1976), p. 1265H). This right also extends to the right to an oral hearing (R v Department of Health ex parte Gandhi (1991), p. 1063F). However, in this case, this argument is unlikely to succeed because the Council rejected the application in accordance with their policy that ballot schools were excluded from the range of funded courses. An oral hearing is therefore unlikely to have added anything substantive which could have influenced the Council to make a different decision. In addition, article 6 of the ECHR is similar to the common law right to a fair hearing. However, the Supreme Court has found that, in respect of local authority decision-making, the absence of an oral hearing did not compromise the ability of a body to make its own findings of fact (Lord Hope, R (on the application of G) v The Governors of X School (2011)). Besides, the right to education under article 2 of the First Protocol of the ECHR does not engage the ‘civil right’ element of article 6 (R (LG (mother and litigation friend of V) v IAP for Tom Hood School (2009). (ii) Council’s refusal to consider “other exceptional circumstances”. The Council’s power to make awards is set out in the Scholarship and Other Benefits Regulations 1977. In particular, Regulation 4 provides, inter alia, that: every authority may for the purpose of enabling pupils to take advantage ….of any educational facilities available to them ..... (d) pay the whole or any part of the tuition fees... (Emphasis added) Crucially, it is noted that the word may is used at Regulation 4 above. The Council is therefore under no obligation to make an award. Albeit, that said, the Council must consider all the information that is made available to it in support of an application. A failure to do so could render a decision unlawful. Further, if a Council’s policy is so inflexible that it does not take into consideration other ‘unique’ factors it is potentially challengeable (British Oxygen Company Limited v Minister of Technology (1971), p. 625). In this case, however, the point which was raised under “other exceptional circumstances” was that Billy had been the victim of bullying at his local school due to his interest in ballot. This point alone is unlikely to render the decision unlawful as it does not show that the Council erred from their policy. (iii) Is the Council obliged to make a grant? The Grants Application Officer’s remarks that the Council was not under a duty to make a grant in any individual case is supported by law (Regulation 4, Scholarship and Other Benefits Regulations 1977). The Council’s only obligation in this regard is to make decisions in accordance with its policy; a failure to do so unreasonably would be deemed ultra vires. Therefore, providing the Council follows its policy, it is true that it is not under any duty to make an award. The Grant Application Officer’s remarks therefore are not challengeable in an application for judicial review. Conclusion In conclusion, in the first instance, the Elliots ought to apply for a review of the Council’s decision and attach any further supporting documentation. In the event that there is no right of review, or that the review is rejected, the Elliots can bring an application for judicial review. Albeit, it is unlikely, on the existing facts, that such an application would have a good prospect of success. This is, generally speaking, because local authority’s have a ‘broad discretion’ when considering whether or not to make an award (Lord Justice Dyson, Youngson (A Child), R (On the application of) v Birmingham City Council (2001), para. 11). The legal position outlined above can be reassessed if the Council rejects the application for a review. WORD COUNT: 1500 References: 1. British Oxygen Company Limited v. Minister of Technology [1971] AC 2. Civil Procedure Rules 1998 3. Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 4. European Convention of Human Rights and Fundamental Freedoms (1950) 5. Fairmount Investments Ltd v. Secretary of State for the Environment [1976] 1 WLR 1255 6. Human Rights Act 1998 7. Inland Revenue Commissioners Appellants v. National Federation of Self-Employed and Small Businesses Ltd. Respondents [1982] A.C. 617 8. R v. Department of Health ex parte Gandhi [1991] 1 WLR 1053 9. Re Hamilton; Re Forrest [1981] AC 1038 10. R (LG (mother and litigation friend of V) v. IAP for Tom Hood School [2009] LGR 691 11. R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 12. R (on the application of G) v The Governors of X School [2011] UKSC 30 13. Scholarship and Other Benefits Regulations 1977 14. Youngson (A Child), R (On the application of) v. Birmingham City Council [2001] EWCA Civ 287 Bibliography List of Cases: British Oxygen Company Limited v. Minister of Technology [1971] AC Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 Fairmount Investments Ltd v. Secretary of State for the Environment [1976] 1 WLR 1255 Inland Revenue Commissioners Appellants v. National Federation of Self-Employed and Small Businesses Ltd. Respondents [1982] A.C. 617. Queen v. Birmingham City Council Ex Parte Jacob Youngson [2000] EWHC Admin 430 (11th December, 2000) R v. Department of Health ex parte Gandhi [1991] 1 WLR 1053 Re Hamilton; Re Forrest [1981] AC 1038 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 R (LG (mother and litigation friend of V) v. IAP for Tom Hood School [2009] LGR 691 R (on the application of G) v The Governors of X School [2011] UKSC 30 Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 Tsfayo v United Kingdom (Appl No 60860/00) [2007] LGR 1 Youngson (A Child), R (On the application of) v. Birmingham City Council [2001] EWCA Civ 287 Primary Legislation: Education Act 1996 Human Rights Act 1998 Secondary Legislation: Civil Procedure Rules 1998 Scholarship and Other Benefits Regulations 1977 (S.I. 1977/No. 1443) International Instruments: European Convention on Human Rights and Fundamental Freedoms (1950) Read More