The Domestic Improvements Registration Act - Assignment Example

SENARIO: The Domestic Improvements Registration Act 2002 (2002 Act) (a fictitious act), permits local councils to establish a scheme whereby personsor businesses working in the Council’s area carrying out repairs or improvements to houses, flats and similar properties must be registered with the local council. Where a council has established a requirement for registration, any business wishing to carry out such work, cannot do so unless it has been registered with the local council. A council can establish a scheme for all such businesses operating in its area or only for certain classes of business. Where a registration scheme has been established by the local council, it must, on receipt of an application from a person or business of that class of business take account of the following when considering an application for registration : • that the applicant has either 5 years’ experience in that kind of work or has appropriate recognised qualifications • that the provider is financially sound • that, where relevant, the provider complies with all statutory employment requirements e.g. complies with health & safety requirements, pays at least the statutory minimum wage • that the provider has no convictions in the last 5 years apart from minor motoring convictions Where registration is granted, it is valid for 3 years, but the applicant can apply for renewal. Bumbling Council (BC) has designated those who carry out garden maintenance & landscaping as a class of business for which registration is required for businesses wishing to operate in their area. In all of the problems below, you may assume that the parties have any standing required should you advise them that have a right of action. You do not need to advise any of the parties of the procedure for bringing a claim for judicial review. Nor do you need to advise any of the parties of what remedies are available to them should you advise that any claim is likely to be successful. Questions: a] Patrick was granted registration in 2005. He has recently applied to renew his registration but this was turned down without an explanation being given. Advise Patrick, on what grounds, if any he may apply for a judicial review of the BC’s decision to refuse renewal of his registration. Explain and justify your advice and, where appropriate, support your advice to relevant case law. b] Joe has recently applied for registration with BC but his application was turned down. The letter informing him of the decision stated that BC were not satisfied that his business was financially sound, which he disputes, and also that the Council is of the opinion that his style of landscaping is inappropriate for properties in the Council’s area, in particular, his extensive use of garden gnomes. Advise Joe, on what grounds, if any he may apply for a judicial review of BC’s decision to turn down his application for registration. Explain and justify your advice and, where appropriate, support your advice to relevant case law. c] Mick applied for registration with BC. When he enquired on the progress of his application, BC’s Trading Standards Department (TDS), which considers all applications before putting them to the Council for a final decision, with a recommendation for approval or rejection, told him they were recommending approval. When the application went before the Council, it was rejected without a reason being given. Mick has subsequently discovered that one of the members of the Council who considered his application, George, has a sister, Felicity, who lives in the area of an adjoining council and who is in dispute with Mick regarding landscaping work he undertook in her garden. She has refused to pay for the work alleging that it is unsatisfactory and does not comply with what was agreed. He has commenced court proceedings against her for ?20,000, the sum originally agreed, and she has promised to defend such action vigorously. Advise Mick, on what grounds, if any he may apply for a judicial review of BC’s decision to turn down his application for registration. Explain and justify your advice and, where appropriate, support your advice to relevant case law. Dear Patrick Having analysed the problem you are experiencing with regard to the re-registration of your business with the council it is my opinion that you should seek a judicial review of the decision of the council as it could be regarded that they have acted ultra vires in failing to provide you with an explanation as to why your application has been rejected. Claims for judicial review can be brought if it can be established that the actions of the body concerned are either illegal, irrational or there has been procedural impropriety. In this instance it is my opinion that the council have not followed the proper protocol and procedure by failing to give the reasons for their refusal to renew your application. Without such information you are at a disadvantage to be able to submit an appeal against the decision. In coming to this decision I considered the decision in the case of R (on the application of AM (Cameroon)) v Asylum and Immigration Tribunal [2008] in which the court held that the failure to allow the plaintiff’s application or allow evidence by telephonic link amounted to procedural impropriety and therefore prevented the applicant from having a fair hearing. At the appeal the respondent was ordered to consider the application and ensure that natural justice prevailed. In this case the application was initially rejected based on the fact that the applicant had used 2 sets of ID papers when he entered the country. The Tribunal stated that his credibility had been damaged by this, however the application for judicial review was allowed stating that the Tribunal were wrong to decline his application by challenging the credibility of the applicant. Failing to allow natural justice or allow the affected person to make representations was discussed in Slapper and Kelly (1999)1. Similarly in the case of R (on the application of Fudge) v South West Strategic Health Authority [2007] it was held that the council were guilty of procedural irregularity by failing to involve the public in the consultation process. In this case the applicant was seeking to have the decision of the Health Authority quashed when they had decided to appoint a preferred bidder for the Independent Sector Treatment Centre. The court held that the Authority were wrong not to allow public consultation in the process and allowed the application for judicial review. Using either of these as an authority it is my opinion that grounds for a judicial review are highlighted by this case. Since registration has previously been allowed there is an expectation that a renewal application would not be challenged. The failure of the local authority to offer an explanation for the refusal gives rise to a claim for judicial review on the grounds that their decision appears to be irrational. The authority also has a duty to explain the reason for the refusal so that an applicant can lodge an appeal against the decision. Failing to do this gives rise to an alternative claim of procedural impropriety as stated in the examples above. The respondents should be reminded of the penalties that can be imposed for failing to implement the Act appropriately. I hope this clarifies the situation. Please feel free to contact me to discuss this matter further Yours Sincerely A Lawyer Dear Joe Having considered the circumstances surrounding the refusal of the council with regard to your application I feel that it is important to highlight that under the Act the council is entitled to refuse any applications if they are of the opinion that the applicant is not financially sound. The Act does not give specific instructions in how to determine whether an applicant is financially sound and therefore the test must be regarded as a subjective test. The interpretation is therefore open to abuse and could result in an unfair decision being made. An application for judicial review is likely to be successful and would allow you to be able to adduce evidence to show that you are financially sound. In lodging an appeal the local authority will be placed under a duty to disclose how they reached the conclusion that the business is not financially sound. From this it will be possible to challenge their reasoning if it can be proven that their calculations are flawed. The second issue in this matter surrounding the style of landscape used by the plaintiff should not be an influencing factor in determining as there is no mention of this within the Act. As the application has been rejected in part due to the landscaping plans this should be grounds for judicial review as the council has acted illegally by rejecting the application on these grounds. In bringing a claim for judicial review against the council I have considered the case of Associated Picture House v Wednesbury Corporation [1947] where Lord Greene MR accepted that unreasonableness could be aground on which to challenge decisions. Lord Diplock also made the point that a decision is irrational if it is ‘ so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at.’ In order to argue from this stance you would have to prove that any sensible person would not have reached the conclusion reached by the local authority. The case of Council of Civil Service Unions v Minister for the Civil Service [1984] also assists by demonstrating the need for proportionality. In this case Lord Diplock commented that proportionality should be used when making decisions so that the achievement of the ends of the decision are not more oppressive than need to be to achieve those ends. An argument could also be raised that the local authority is acting unreasonably by making decisions without taking individual circumstances into account. This was the case in Lavender v Minister of Housing and Local Government2 and British Oxygen v Minister of Technology3 where the court stated that the authority should be prepared to make exceptions on the basis of each individual case. In this case the council could be regarded as acting ultra vires. An ultra vires activity would be were the body concerned has done something which under statute or common law it has no legal authority to do as decided in the case of Webb v Minster of Housing and Local Government [1965]. It is therefore my opinion that there is a reasonable prospect of success in bringing a claim for judicial review against the council on the grounds that the local authority have acted illegally by interpreting the Act in a manner inconsistent with the wording of the Act. In applying for judicial review the local authority will be placed under a duty to disclose the reasons for their refusal including how they determined that the business is not financially sound. The refusal in relation to the landscape style is likely to be ignored by the courts as the local authority do not have the power within the Act to refuse an application on these grounds. I hope this addresses you concerns. Please feel free to contact me if you require further explanation or assistance. Yours Sincerely A Lawyer Dear Mick Having examined the declined application despite the recommendation from the Trading Standards Department it is my considered opinion that you might be able to bring a claim for judicial review if it can be proven that the council member who has opposed the application has only done so because of the dispute between the sister of the council member and yourself. In reaching this decision the case of R. (on the application of Lewis) v Redcar and Cleveland BC [2007] was considered. In this case the court allowed the application for judicial review after evidence was adduced that the Local Authority had acted with bias in refusing the planning application of the applicant. In this case the applicant was applying for a judicial review of the local authority’s decision to grant planning permission for the development on neighbouring land that was near a Special Protection Area. The decision to grant the permission was given during the election period despite the fact that the authority had been told to suspend any such decision until after the election. The applicant claimed that the application had been allowed so as to secure votes during the election and therefore the decision they had made was biased. The application for review was upheld stating that any right minded person would agree that the decision was tainted by the upcoming elections. It could be argued that there has been a breach of natural justice on the grounds that George could not be regarded as impartial given his connection with a previous customer that you are in dispute with. The rules of natural justice require the decision making process to be fair4and that the person making the decision should not be biased5. It is my considered opinion that in these circumstances it should be easy to prove that the influence of George in the decision making process raises questions of impartiality and bias. It is therefore likely that an application for judicial review would be allowed. Based on the information there are clear grounds for an application for judicial review based on the obvious bias on the part of George. Given his connection with your business George should not be entitled to be involved in the decision making process as he clearly cannot be impartial. By allowing George to influence the decision it could be argued that the local authority has committed procedural impropriety as all applications should be considered in an impartial manner. An application for judicial review is likely to be granted on these grounds. If there are any other matters that I might assist with please contact me Yours Sincerely A Lawyer Bibliography Carroll, A, Constitutional & administrative Law, Revised Ed,1998, Pitman Publishing Civil Procedure Volume 2, 2002, White Book service, Sweet & Maxwell House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003–04, HC 422, London, The Stationery Office Limited, 16 March 2004. House of Lords Select Committee on the Constitution, Waging War: Parliament’s role and responsibility, HL Paper 236, London, The Stationery Office Ltd, 27 July 2006. Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd Read More