In the fictional case between the Authority for Regeneration of Inner Cities [ARIC] v Rummidge Society for the Homeless [RSFH] we find ARIC refusing to pay out a grant needed by RSFH to replace the heating system within their shelter for homeless people, located just off Old Street In Rummidge Inner City. RFSH are seeking to challenge this decision by means of Judicial Review.
ARIC is refusing to pay out a grant as it stated that "it was not its policy to support initiatives designed to cater for the needs or well being of homeless persons" However, it could be argued that this qualifies this case for Judicial Review on the grounds of Improper Purpose. Section 1 of the [fictional] Inner City Regeneration Act, outlines that in considering applications for grants ARIC should seek "to promote initiatives designed to address problems presented to inner cities by homeless persons".
ARIC states that its primary purposes are to "dissuade such persons from establishing themselves in inner city areas and to minimise their impact on the enjoyment of inner cities by others. " ARIC should be designing ways to solve the problem of homelessness, not dissuade the homeless from being in the city. This can be illustrated with the case of ex p. Fewings1 where Laws J held the ban on deer hunting did not come within the statutory purpose of managing the land for "the benefit, improvement or development of their area.
An alternative ground for review that the RSFH may wish to take would be that of relevant and irrelevant considerations. ARIC have failed to take into account, or at least give sufficient weight to, the fact that the shelter is removing homeless people from the street and therefore fulfilling their directive "to promote initiatives designed to address problems presented to inner cities by homeless persons".
This was clearly outlined in the Act by statute as a consideration to which regard should be had. ARIC also failed to take into account that by not paying the grant, the shelter would close and this would mean that there would be no overnight accommodation for homeless persons in the Inner City, which could cause problems for the police and others.
This is an inconvenience to many people, and could be considered a "precedent fact" although not a matter of law as the brief is to "promote initiatives designed to address problems presented to inner cities by homeless persons" and this would be considered a "problem presented to inner cities by homeless persons". This is illustrated in Vasiliou v Secretary of State for Transport2 where the Secretary of State should have taken into account the adverse effect his order would have on a trade or business being carried out on land adjoining the highway.
ARIC have also arguably taken irrelevant information into account by saying that the shelter was having an impact on the enjoyment of the inner city by others, and also I believe they have taken into account that the shelter is likely to attract homeless people from the surrounding area into the city, and ARIC have said "Its primary purposes, are to dissuade such persons from establishing themselves in inner city areas. " Neither of these points should have been considered and this makes the decision unlawful as was the case in ex p.
Venebles3 when the sentence was altered after taking into account the public's view on the original sentencing. The third ground of Review that the RSFH could take is that of unreasonableness in the Wednesbury sense. By closing down the homeless shelter, and stating that it's "not its policy to support initiatives designed to cater for the needs or well being of homeless persons", ARIC is going against the Human Rights Act and can be described as Wednesbury Unreasonable.
The impact of the decision is extremely oppressive or a seriously onerous and unnecessary infringement of a persons rights or interests, as if we consider the rights of the homeless, it is unreasonable to throw them onto the streets purely because we do not wish to attract more homeless people. This form of unreasonableness can be illustrated by ex p. Hook4 dealing with a market vendor who had his licence to sell his products in the market removed, but as this was his sole source of income it was deemed to be unreasonable.
The final ground for review relevant to this problem would be Procedural Impropriety, under the heading of Bias. The Chief Executive for ARIC is also a School Governor of an Independent School located next to the Shelter. It has been brought to our attention that when RSFH applied for planning permission the school body initially contested it as they felt that the building would detrimentally affect the school. As the school is independent, the School Governor stands to loose money if the school is deemed to be less desirable by having the shelter next door.
Where a decision maker is a party to the decision at hand or has a direct financial interest in the matter, the decision maker is automatically excluded from participating in the decision, and if they do participate the decision is unlawful. By this argument, the decision could be seen as unlawful because the Governor/Executive is clearly not independent, and he does have a financial interest in the matter. The test relevant to this form of bias would be that brought about by the case of R v Gough5.
This case introduced what is known in common law as the Gough Test, whether the reviewing court is of the view hat there is a real danger that the decision was affected by bias, where real danger means possibility rather than a probability of bias. In this instance there is a severe possibility of bias. The Gough Test was introduced before the Human Rights Act, and sinc this legislation was passed, Article 6 of the European Convention of Human Rights (article 6(1)) outlines another test for Bias.
A decision maker acts unlawfully if it decides a matter in circumstances where a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision maker/body was biased. This is outlined in the case of Findlay v UK6 where one officer took it upon himself to be the 'judge, jury, and executioner' as it were, in a court martial case. Article 6 may not be relevant in this case however as it is only relevant where the decision maker is involved in "determining civil rights and obligations, or criminal charge against a person", but here we are dealing with common law.
All these Grounds for review could almost definitely be argued against by ARIC, with regards to Improper Purpose, they could argue that article 1 of the act was open for interpretation, and they feel they were right to interpret as they did. They could also argue against the case of relevance and irrelevance that they took all the factors into consideration, but weighted them differently to the way we would give them weight. As long as they can prove that they took them into consideration at some point the court at review will not argue with the decision, they will only argue against unlawful decisions.
As for taking irrelevant facts into consideration, this must be proved to be the case before a decision can be made. With regards to Unreasonableness, they could argue that the action they took was not "extremely" oppressive, or "seriously" onerous, in which case it would not qualify for Wednesbury unreasonableness. Bias as the final ground for review I have discussed is a harder one for them to argue as the decision maker clearly was going to be altered financially by the decision he himself was going to make. Therefore, I would advise the RSFH to challenge this decision on the basis of Bias at Judicial Review.