Ben has been directly affected by a number of administrative actions taken by the Secretary of State and other government bodies under the terms of the Dignity in Old Age Act 2006. Under section 31(3) of the Supreme Court Act 1981 Ben may challenge the acts and decisions of the UK government with the leave or permission of the High Court. This procedure is known as judicial review. Happy Chalets and Caravans, a holiday company specialising in summer holidays for the more mature holiday maker which generally only lasts for two or three weeks.
This is not residential also as we can see in this scenario this is not long-term which is going beyond what the act states. In R v Thames Magistrates' Court (ex parte Greenbaum)1 it was said that the applicant must be the person aggrieved. Also In R v IRC (ex parte National Federation of the Self-Employed) Lord Wilberforce stated " There maybe simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all or no sufficient interest to support the application…
but in other cases this will not be so. In these it will be necessary to consider the powers or duties in law of those against whom the relief is asked, the position of the applicants in relation to those powers and duties and to the breach of those said to have been committed. In other words the question of sufficient interest, in such cases cannot be considered in the abstract… it must be taken together with the legal and factual context"2.
Given Ben's position and the directness of the effect that the acts in question have had on him individually, it is likely that he would be regarded as having a sufficient interest to bring an action of judicial review. Judicial review is a process where the individual here it will be Ben can challenge the decision in the High Court. This is not like an appeal, an appeal an challenge the merits of the decision where as the judicial review looks at how the decision was made. Three main reasons why Ben might be able to challenge how the decision was made are;- Illegality, Irrationality nd Procedural Impropriety.
As we can see that when the legislation was going through Parliament the minister clearly stated that the purpose of the act was to " secure the dignity of old people living in private residential homes which provide for the ong-term needs of the elderly". This tells us that Parliaments intentions purpose if used fr anything is an improper purpose. In the case of Council of Civil Service Unions v Minster for the Civil Service3, Lord Diplock stated that there are three grounds for judicial review in the UK. These are 'illegality', 'irrationality' and 'procedural impropriety'.
These grounds are broad and can overlap. 1. Illegality- which includes, a narrow ultra vires (lack of jurisdiction), errors of law or fact, wide ultra vires, fettering discretion. 2. Irrationality – This includes, Wednesbury reasonableness, proportionality (Human Rights Act 1998). 3. Procedural impropriety- which includes, failing to comply with statutory procedures, failing to comply with common law rules of natural justice (lack of a fair hearing, failure to give reasons, bias, legitimate expectation).
(1) The first issue that Ben may wish to challenge is the decision to regulate his company, Happy Chalets and Caravans, under the Dignity in Old Age Act 2006 act. He offers holidays that generally last between two and three weeks. The purpose of the Act was clearly stated as providing for the needs of elderly people in long-term residential homes. Section 1 states the purpose as protecting the safety and wellbeing of the elderly in residential retirement homes. Arguably therefore, it provides no authority for regulating Ben's company, which is a holiday provider.
Ultra vires means 'beyond the power of' authorities cannot act beyond the powers expressly granted to them by parliament. Since parliament only gave power under section 1 of the act for the regulation of long-term housing, application of the act to other bodies such as holiday operators is arguably void on the ground of illegality simple ultra vires. In the case of A-G v Fulham Corporation (1921) a local authority had interpreted its power to provide a public 'wash house' as permitting it to authorise the provision of a commercial laundry.