Grounds for judicial review

The basic principle of judicial review is that public authorities must act according to law. This may be broken down into a number of grounds of review. Collectively, these grounds are known as the ultra vires principle. Individually they are the principle of legality, the duty to act fairly/observe natural justice, and the proper exercise of discretion.

An example of a general statement of the grounds for judicial review is to be found in the opinion of Lord Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984: 'a decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided in him. In particular it will be ultra vires if it is based on a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take into account relevant and material considerations that ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to granting of planning permission, is so unreasonable that no reasonable secretary of State could have reached or imposed it'. [1]

The basic idea is a straightforward one, that the local authority must abide by homelessness legislation. Thus, where the question arises as to whether an applicant is homeless, the local authority must apply the statutory definition in section 24 of the Housing (Scotland) 1987 Act to answer the question, and must correctly interpret section 24 to get the right answer. However, not every question under section 24 has a right answer.

A person may claim to be homeless under section 24(2A) because s/he has accommodation but does not think it would be 'reasonable for him to continue to occupy'. This subsection clearly gives the local authority some discretion and an adverse decision could only be challenged on the grounds of improper exercise of discretion, or unfair procedure.

There is a duty on local authorities to act fairly, or in other words, not unreasonably, and to observe natural justice, especially through fair procedure.

The doctrine of unreasonableness was established in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948. [2]

Here it was held that even where a local authority passes the first test of legality/relevancy 'it may be possible to say that, although the local authority has kept within the four corners of the matters which it ought to consider, it has nevertheless come to a conclusion so unreasonable that no local authority could have come to it' at p. 234. This is commonly known as 'Wednesbury unreasonableness'.

A discretionary decision that is unreasonable in this sense is illegal. In Council of Civil Service Unions v Minister for Civil Service 1985 the judge expressed the same idea using the term 'irrationality' saying 'it applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question could have arrived at it'. [3] This differs from other grounds of review of discretionary decisions because it enables you to challenge the decision itself, not merely the way it was made.

Because it involves interfering with the merits of the decision, a strong case has to be made. In Kelly v Monklands DC 1986 an applicant was held not to be vulnerable despite her unfortunate circumstances this decision was held to be unreasonable. The judge said '... when you find a girl of 16 who has no assets, no income and nowhere to go and who has apparently left home because of violence, I am of the opinion that no reasonable authority could fail to conclude that she was vulnerable'. [4]

The two sources of procedural obligations for local authorities are homelessness legislation, and the general doctrine of procedural fairness, often referred to as the doctrine of natural justice.

The principal legislative obligation is the duty to make adequate inquiries imposed by Section 28 of the Housing (Scotland) 1987 Act. By itself, failure to make adequate inquiries can be a ground for invalidating a decision. It is not necessary to demonstrate that a decision reached on the basis of inadequate inquiries is 'wrong'.

The applicant must have an opportunity to make representations and challenge the authority's findings on points crucial to the decision. For example, by not telling the applicant that the medical evidence she submitted was going to be challenged [5] or by not giving the applicant an opportunity to answer why arrears occurred, [6] the applicant is denied a fair hearing.

Section 30 of the Housing (Scotland) 1987 Act imposes a specific duty to give reasons for an adverse decision. There is also a duty to notify the applicant of their right to request a review of the decision and of the advice and assistance that is available to them in connection with any review. The courts have indicated that a decision letter should contain proper and adequate reasons, and should deal with the substantial questions at issue in an intelligible way. The decision should leave the informed reader and the court in no doubt as to what the reasons were and what material considerations were taken into account when reaching it. [7]

It appears that the Scottish Courts are following the English example and becoming more rigorous in their requirement for adequate reasons. For example, in Hanlin v Nithsdale DC an applicant claimed she had to give up accommodation because of harassment and it would not be reasonable for her to continue to occupy the accommodation, the decision letter merely stated that 'it was reasonable for (the applicant) to remain and (the applicant's spouse) to return to the home town, and in not doing so they had made themselves intentionally homeless'. This was considered to be inadequate. The local authority was said to have a duty to explain why they had rejected the applicant's stated reason for relinquishing the property, and why they considered it reasonable for her to have remained where she was. [8] It may be possible for a local authority to remedy a defective decision letter by responding to further points made on behalf of the applicant. In R v Westminster CC ex p Augustin 1993 it was held that any defects in the original decision letter can be 'cured' by a later letter, giving full reasons, responding to representations from the applicant's solicitors. [9]

Local authorities are bound not to fetter their discretion by slavishly following their policy. However, where a person has a legitimate expectation that a certain policy will be followed by a public authority, and that expectation is defeated without good reasons, its decision may be unlawful. In Lennon v Hamilton DC 1990 it was held unlawful for a housing authority to refuse to allow a person to succeed to a secure tenancy on the death of his aunt. He had no right to succeed in terms of the housing legislation, but was 'entitled' to succeed by virtue of the local authority's house allocation policy. [10]

Such legitimate expectations can arise either from an express promise given by a public authority, or from a regular practice which the person concerned can reasonably expect to continue. [11] In the absence of 'promise' or 'practice', no expectation arises. A published policy could count as a 'promise'.

In making discretionary decisions under homelessness legislation it is illegal for a local authority to take into account matters that are not relevant or to fail to take into account matters that are relevant and ought to have been taken into account before arriving at a decision. The relevancy requirement only ensures that a decision is influenced by the appropriate matters. How much weight should be given to relevant factors is a matter for the decision maker. [12]

In particular the failure to consider relevant factors has resulted in local authorities' decisions being quashed in intentionally homeless decisions. In R v Wandsworth LBC ex p Hawthrone 1995 when a local authority appealed against a lower court decision that the applicant was not intentionally homeless despite £3,000 rent arrears, the council's appeal was refused as it had failed to consider why the arrears occurred (which was a relevant factor). [13]

Local authorities are required to have regard to the guidance issued by the Scottish Ministers when making decisions on homelessness. [14] The Code of Guidance serves this function. [15] The Code of Guidance must always be taken into account when making decisions using homelessness legislation.

In Kelly v Monklands DC when a local authority failed to have regard to the need to co-operate with the social work department and consider their view that the applicant was vulnerable, the failure to have regard to the Code had tainted the decision therefore the decision could be quashed. [16]

The obligation is only to take the code into account: it is not a book of rules that must be applied. It has been held that while the local authority must have regard to the Code it can depart from it if it thinks it 'appropriate to do so'. [17] The courts have  endorsed this approach, in Mazzaccherini v Argyle and Bute DC the judge stated that 'if a housing authority considers that in a particular case the circumstances do not merit the rigid application of the Code, I do not consider they could be faulted at law or said to have acted unreasonably'. [18] 

A similar approach was taken in Laura Ellis for Judicial Review of Decisions of Angus Council. [19] In this case the applicant was 20 years of age, in receipt of LHA and had failed to pay her rent and was deemed intentionally homeless by the local authority. The local authority based their decision upon the fact that she was in receipt of LHA and had not paid her rent. The applicant argued that in making their decision the local authority should have had regard to para. 7.18 of the Code of Guidance, which suggests that in making an intentionality decision a local authority may wish to take into account the youth or inexperience of the homeless person. As the applicant was 20 years old it was argued that para 7.18 should have been taken into account and therefore the local authority’s reasons for their decision were inadequate. However, it was held that a decision maker did not have to take into account every material consideration – it was enough to consider the main issues in dispute. Here the main issues in dispute were that the applicant was in receipt of LHA and had failed to pay her rent, therefore she had acted deliberately and was intentionally homeless.

Failure to follow the Code is something that might help in deciding whether a decision was unreasonable but would not be conclusive on that issue. If a decision is silent as to the whether the Code has been considered, that does not necessarily suggest that it has not been considered. However in the context of a decision that is unexplained, the presumption that a housing authority had acted properly in considering the Code may readily be displaced by even slight indications to the contrary. [20]

Consideration of irrelevant factors can result in a local authority's decision being quashed. For example, in R v Thanet DC ex p Groves 1990 a local authority decided that an applicant was intentionally homeless, they were held to have considered irrelevant matters because they had taken into account that the applicant had not approached her landlady to discuss her rent arrears. [21] It was obvious that such an approach would have made no difference therefore should not have been considered by the local authority in reaching a decision that the applicant was intentionally homeless.

Irrelevant factors are sometimes taken into account as a result of value judgements by the decision makers. In R v Tower Hamlets ex p Hoque 1993 a decision that accommodation was reasonable to occupy was quashed because the decision making process had been tainted by value judgements of the council's officer and the factual basis of the decision was entirely irrelevant and failed to have regard to the Code of Guidance. [22]

This concept can also be divided into more specific grounds:

• There must be a real exercise of discretion - the local authority should not slavishly follow rules or policies it has created (fettering discretion).

• The authority to whom the person applies should take the decision and must not delegate the decision to any other person or body.

The decision must reflect a real exercise of discretion and therefore the local authority must consider the individual merits of each case. It is lawful for the local authority to have policies or guidelines on how to deal with categories of cases, for example who is to be regarded as vulnerable for 'other special reasons'. However, such policies should not become inflexible rules. If there has been a slavish following of policy (using 'blanket policies') then this can be challenged. [23] In R v Harrow LBC ex p Carter 1994 a policy that all applicants without local connection to the local authority should be referred was regarded as unlawful, as the officers could not depart from it, however exceptional the circumstances. [24] The point here is that the legislation confers a discretion, not a duty, to refer.

In one situation where a local authority wrote standard letters to all its tenants who were in rent arrears, stating that if they were evicted after court proceedings they would be considered intentionally homeless, it was eventually accepted that this was a blanket policy amounting to an unlawful fetter of their discretion and the policy was modified. [25]

A distinction should be made between a policy that allows for a departure in exceptional circumstances (eg all those evicted for anti-social behaviour will normally be regarded as intentionally homeless) and one that allows no discretion on the part of the decision maker (eg all those evicted for anti-social behaviour will be regarded as intentionally homeless). The former is appropriate, the latter is not. The Local Authority Agreement on Referrals of the Homeless was criticised in one aspect for failing to allow discretion and the adoption of 'too rigid a rule'. [26] Any policy adopted should, of course, be consistent with the legislation.

A person or body with whom discretion is vested should not allow some other person or decision-making body to dictate how the discretion should be exercised.

In one case the decision that the applicant was intentionally homeless was quashed as the authority failed to carry out its own investigations but accepted the opinion of another authority that the applicant was intentionally homeless. [27]

The local authority cannot simply 'rubber stamp' the decision of other bodies or professionals. Often there will be a temptation, which has been rejected by the courts, to rest a decision (for example on the question of vulnerability) on the finding of the District Medical Officer (DMO). This is not a real exercise of discretion of the local authority. The local authority is of course entitled to take the DMO's advice into account and follow it if it wishes, but it must demonstrate that it is an independent decision of the housing authority after due consideration of the individual circumstances of the individual applicant. [28]