R vs. L. B. Bexley e.p. Jones 1994 (original) (raw)
QUEEN'S BENCH DIVISION
R vs. LONDON BOROUGH OF BEXLEY ex parte JONES
[1995] ELR 42
HEARING DATE 29 April 1994
Discretionary award - Education Act 1962, s 1 - Applicant's second or subsequent degree - Whether LEA's awards policy involving refusal to provide discretionary award at full rate to students on designated courses which attracted mandatory awards in other circumstances was lawful - Whether LEA gave proper consideration to exceptional cases or special circumstances and if it failed to do so unlawfully fettered its discretion to make discretionary award at full rate
HEADNOTE
The applicant studied for a degree in biochemistry at the University of Sheffield between 1988 and 1991. She obtained a mandatory award from the respondent, her local education authority. In 1990 the applicant, who intended to read medicine as a second degree, was informed by the respondent that assistance would be considered for the final 3 years of clinical study for such a degree under its discretionary awards policy. Between 1991 and 1992 the applicant undertook a Master's degree in experimental pathology and toxicology financed by a careers development loan from her bank. She then worked as an editor to raise money to fund the first 2 years of her medical studies. She was offered a place to read medicine at the University of Leeds and she applied to the respondent for an award on 28 February 1993. The applicant and her father said that they were told by the respondent over the telephone, on various occasions between February and May 1993, that the applicant would receive a grant for the first 3 years of her degree. But on 17 July 1993 the applicant's father was told, over the telephone, that the policy on awards was such that the applicant's course was no longer included. This was the result of a change of policy prompted by a projected overspend by the respondent on major awards. The policy change affected, inter alia, awards for courses which would normally have attracted a mandatory award but which for special reasons were exempt from entitlement; the respondent had concluded that any such discretionary awards, which would be made under s 1(6) of the Education Act 1962, would have to be paid at the full rate. The respondent's education committee resolved that no maintenance awards would be made for courses leading to NVQ levels 3, 4 and 5; the applicant's course was one leading to NVQ level 4. The effect was that awards under s 1(6) would cease to be available, since the legislation demanded that any such awards which were made had to include amounts for both tuition and maintenance. The respondent informed the applicant on 17 August 1993 that it had been minded to make an award to provide assistance in respect of tuition fees for her course, but that the Education Act 1962 precluded partial awards. The applicant sought judicial review of the respondent's decision, contending first, that it had misdirected itself as a matter of law on the interpretation of s 1(6) of the 1962 Act and, secondly, that it had unlawfully fettered its discretion by adopting its policy on awards for students attending designated courses and by the manner in which that policy was applied to the applicant.
Held
(1) The respondent's interpretation of s 1(6) had been correct. Under the Education (Mandatory Awards) Regulations 1992, the respondent was under no duty to bestow a mandatory award on a person who had already attended a designated course (regs 10(1)(a) and 12(2)(a)). Because the applicant had previously had a mandatory award, she was not eligible for an award under s 1(1) of the 1962 Act. Instead, the local education authority had a discretion to make an award under s 1(6). The duties and conditions and the amount of the payment applied to students in receipt of discretionary awards under s 1(6), except insofar as the conditions and exceptions operated to disqualify that student. Once a local authority exercised its discretion to make an award under s 1(6), the student was to be treated the same way as students should be treated under s 1(1). The result was that a local authority had the choice between making a full award or no award at all. In his Lordship's judgment, the respondent was right in the interpretation it put on the relevant statutory provisions.
(2) The principle was well-established, and it was common ground, that a local authority could not adopt a policy which precluded the exercise of its discretion, nor could an authority slavishly follow a policy without regard to the merits of individual cases. It was legitimate for a statutory body such as the respondent to adopt a policy designed to ensure a rational and consistent approach to the exercise of a statutory discretion in particular types of case. But it could only do so provided that the policy fairly admitted exceptions to it. The respondent had effectively disabled itself from considering individual cases and there had been no convincing evidence that at any material time it had an exceptions procedure worth the name. There was no indication that there had been a genuine willingness to consider individual cases. On the contrary, there was every indication of rigid adherence to its policy. In his Lordship's judgment, an effective exceptions procedure depended on having the information available by reference to which special circumstances could be assessed, with a view to considering whether an exception should be made in favour of an individual. His Lordship was not satisfied that the respondent had such a procedure in place. The result was that the respondent fettered its discretion by adopting a policy, from which no departure was contemplated, of invariably refusing awards to applicants under s 1(6) of the 1962 Act for designated courses. It was not possible to say that the applicant had been afforded a proper opportunity to make such representations as she believed supported her request for special consideration.
Statutory provisions considered
Education Act 1962, s 1(1), (2), (3), (5), (6), (7)
Education (Mandatory Awards) Regulations 1992 (SI 1992/1270), regs 2, 7, 10, 11, 12, 13
Cases referred to in judgment
Attorney-General (ex rel Tilley) v Wandsworth London Borough Council [1981] 1 WLR 854, [1981] 1 All ER 1162, CA
R v London County Council ex parte Corrie [1918] 1 KB 68
R v Port of London Authority ex parte Kynock Ltd [1919] 1 KB 176
Stringer v Minister of Housing and Local Government [1971] 1 WLR 281, [1971] 1 All ER 65
COUNSEL
Suzanne Ornsby for the applicant
Cherie Booth for the respondent
JUDGMENT BY LEGGATT LJ
The applicant, Angela Bridget Jones, seeks judicial review of a decision of the respondents, the London Borough of Bexley, dated 30 July 1993, to refuse to grant to her an award for financial assistance to attend Leeds University in order to undertake a degree in medicine.
At the heart of this issue is the respondents' policy relating to such awards. Because discretionary awards to those on designated courses had, at the time with which these proceedings are concerned, to be full awards, that is to say, paid in relation to maintenance as well as fees, the respondents had decided not to make any such awards. They therefore determined by the decision letter, in respect of which relief is sought, to refuse the applicant's application for a discretionary award. She applies for certiorari to quash that decision.
Her argument is put in two ways. First, she attacks the premise of the respondents' policy that a discretionary award of the relevant kind had to be a full award and, secondly, she contends that the respondents fettered their discretion when considering her case by not contemplating any exception to their policy.
I pay tribute at the outset to the skeleton arguments and oral submissions of both counsel. Upon the arguments of both I shall without further acknowledgment draw substantially for purposes of this judgment.
It has always been the applicant's ambition to become a doctor. In order to fulfil that ambition, the applicant, between 1988 and 1991, undertook a first degree in biochemistry at Sheffield University for which she received a mandatory award from the respondents. It was an award falling within s 1(1) of the Education Act 1962 (the Act), to which I shall have to return in more detail later in this judgment. Let it be said at this stage that references to sections in my judgment will be to sections of that Act.
As long ago as 14 May 1990 the applicant received a letter from the respondents telling her that medicine as a second degree was then one of the courses which could be considered under the discretionary awards policy, and that assistance would be considered for the final 3 years of clinical study for such a degree. Between 1991 and 1992 the applicant undertook a Master's degree in experimental pathology and toxicology. That was financed by a careers development loan from her bank. After that she took a job as a medical and scientific editor for the purposes both of repaying her loan and of earning money to finance the first 2 years of the medical degree upon which she intended to embark. On 28 February 1993, having been offered a place to study medicine at Leeds University, she applied to the respondents for an award.
Her father says that in February and March/April 1993, he telephoned the respondents and was told by the person to whom he spoke that his daughter would get a grant for the 3 clinical years of her degree. She herself says that she was told the same in early May 1993, also on the telephone. However, on 17 July 1993 the applicant's father was told, again on the telephone, that all discretionary grants had stopped and that his daughter would not get a grant. That was confirmed by the decision letter of 30 July 1993 in which the applicant was told that the policy on awards no longer included her course.
On 8 December 1992, unbeknown to the applicant, a report had been made to the respondents' Libraries, Youth and Further Education Subcommittee which reviewed discretionary awards and set out policies to be adopted. That report 'proposed a through review of the awards policy to take account of changes in the structure of further and higher education courses and also to allow appropriate control of the discretionary awards budget to be achieved'. The report set out three groups of major discretionary awards, the detail of which is not necessary for present purposes to follow. Having considered the discretionary awards budget, the report said:
'The authority is therefore facing a projected overspend in 1992/93 of... £144,000 on major awards.'
It recorded that 'a more incisive step to reduce costs would be to stop giving maintenance grants with major awards for student on non-advanced courses. These awards have the greatest impact on the budget'.
The report continued:
'One impediment to this would be concerning those students who are receiving discretionary awards for courses that would normally attract a mandatory award, known as designated courses, but for special reasons they are exempted from entitlement... Such awards are made under s 1(6) of the Education Act 1962, which requires that if any discretionary award is made under such circumstances, to a student on a designated course, it must be at the full mandatory rate. Given the motives for introducing a fees only policy for other major awards, it is recommended that no awards of this type be made rather than allow them at the full rate.'
The report then set out three possible policy options of which the first two did not cover the course contemplated by the applicant, and the subcommittee recommended one of those two options. That was not, however, accepted by the education committee which, on 20 January 1993, resolved that 'the option of making no maintenance grants for students on courses leading to NVQ levels 3, 4 and 5 be adopted, and implemented in respect of applications to these courses commencing from the beginning of the 1993/94 academic year'.
It should be said that the applicant's course was one leading to NVQ level 4, and was, therefore, within the scope of the education committee's resolution. The effect of it was to adopt a policy, as described in the affidavit of Mr Tyson, who is the respondents' principal awards officer, which:
'... necessarily had the effect of making s 1(6) awards no longer available, since these could only have been offered on the basis that both tuition fees and maintenance would be paid if the student's application upon assessment led to this outcome, and the payment of a maintenance element would have been inconsistent with the [council's] decision.'
This was the policy which was applied by the respondents to the application for an award made by the applicant in July 1993.
By a letter dated 17 August 1993, after their decision letter had been received, the respondents told the applicant that it would have been the council's wish to offer assistance towards tuition fees only for such a course, but unfortunately the Education Act 1962 does not allow the authority to make partial awards.
Against that background let me turn to consider the two main issues in this case of which the first is, whether the respondents misdirected themselves as a matter of law on the interpretation of s 1(6) of the Act and the Education (Mandatory Awards) Regulations 1992 (the 1992 regulations) in reaching a decision to refuse the applicant an award. In principle under the Act there are two kinds of awards, mandatory and discretionary. As Miss Booth for the respondents has remarked, they are the subject of separate regimes.
Section 1 provides:
'(1) It shall be the duty of every local educational authority, subject to and in accordance with regulations made under this Act, to bestow on persons who are ordinarily resident in the area of the authority awards in respect of their attendance at courses to which this section applies.
(2) This section applies to any course which:
(a) is provided by a university, college or other [education] in the United Kingdom...
(b) is designated by or under the regulations for the purposes of this section as being such a course as is mentioned in subsection (3) of this section.
(3) The courses referred to in subsection (2)(b) of this section are:
(a) full-time courses which are either first degree courses or comparable to first degree courses.'
If a local authority makes a mandatory award under s 1(1), it must make a full award. That is so by force of reg 7 of the 1992 regulations. That regulation provides, so far as material:
'In pursuance of section 1(1) of the Education Act 1962 it shall be the duty of an authority, subject to the conditions and exceptions hereinafter provided, to bestow:
(1) a full award in respect of a person's attendance at a designated course within the meaning of these Regulations...
(2) where paragraph (1) does not apply, a fees only award ... [shall be bestowed] if the person is a European student.'
It is pertinent to bear in mind three of the definitions contained in reg 2 of the 1992 regulations, by which:
' "award" includes either a fees only award or a full award bestowed under these Regulations ...
"fees only award" means an award bestowed only in respect of fees described in Schedule 1;
"full award" means an award bestowed in respect of both fees described in Schedule 1 and a maintenance grant.'
By virtue of reg 10 mandatory awards are given to students on designated courses. Regulation 10 provides:
'(1) The following courses are hereby designated:
(a) a first degree course, that is to say:
(i) a course provided by an institution for a first degree or for the degree of Bachelor of Medicine or an equivalent degree.'
It follows that medicine is a designated course.
Not all students on designated courses are entitled to mandatory awards because the regulations provide for conditions and exceptions. I accept Miss Booth's submission that that phrase, which is to be found both in the Act itself and in the regulations, is to be regarded as a term of art, and to refer to regs 11, 12 and 13, each of which, as their respective side-notes indicate, are expressly concerned either with conditions or with exceptions.
A new exception was added by the 1992 regulations, namely reg 12(2)(a), which provides:
'Subject to paragraphs (4), (5), (8) and (9) an authority shall not be under a duty to bestow an award on any person where he has previously attended:
(a) a course designated under regulation 10(1)(a).'
Because the applicant had previously had a mandatory grant, as I have indicated, she is not eligible for an award under s 1(1). Instead the local authority is, in such cases as hers, given a discretion by the terms of s 1(6), which provides:
'Without prejudice to the duty imposed by subsection (1) of this section, a local education authority shall have power to bestow an award on any person in respect of his attendance at a course to which this section applies, where he is not eligible for an award under subsection (1) of this section in respect of that course.'
Thus far the interpretation of the Act and the 1992 regulations is, I apprehend, a matter of common ground. The discretion is, however, qualified in some respects by s 1(5) and (7). So far as material, subs (5) provides:
'Regulations made for the purposes of subsection (1) of this section shall prescribe the conditions and exceptions subject to which the duty imposed by that subsection is to have effect...'
Subsection (7) provides:
'The provisions of subsection (5) of this section and of the regulations made in accordance with that subsection (except so much of those provisions as relates to the conditions and exceptions subject to which the duty imposed by subsection (1) of this section is to have effect) shall apply in relation to awards under the last preceding subsection as they apply in relation to awards under subsection (1) of this section.'
The effect of that, as Miss Booth submits, is to provide that the duties and conditions and the amount of the payment, with which subs (5) is also concerned, and the regulations, apply to students in receipt of discretionary awards under s 1(6), except insofar as the conditions and exceptions operate to disqualify that student. Once a local authority exercises its discretion to make an award to a student under s 1(6), that student is treated exactly the same as students are treated under s 1(1). The result, Miss Booth contends, is that in these circumstances a local authority such as the respondents has the choice in practice between making a full award or making no award at all.
Miss Ornsby on behalf of the applicant resists the latter part of that interpretation. She submits that under s 1(7) the 1992 regulations apply to awards under subs (6), unless, as she puts it, they are disapplied by exceptions contained in those regulations. Regulation 7 (material parts of which I have read) is expressed to be subject to conditions and exceptions. Miss Ornsby submits that it is not possible, looking at the conditions and exceptions, to divorce reg 7 from the effect of reg 12, because that regulation says, in effect, that there is an exception so far as awards under subs (6) are concerned. She adds that it was not possible to see how what is taken out of reg 7 is put back into that regulation, bearing in mind the provisions of reg 12(2)(a). Those regulations, she submits, have to be construed together so as to produce the effect that, by contrast with Miss Booth's submission, the respondents would enjoy an unfettered discretion as to the nature of the award that they were entitled to make available for persons in the applicant's position.
In my judgment, Miss Booth and therefore the respondents are plainly right in the interpretation that they put upon these statutory provisions. Because for purposes of awards under s 1(6), subs (7) excludes conditions and exceptions from the operation of subs (5) and the regulations, reg 12 has no effect in this context so as to procure the result for which Miss Ornsby contends, even if, had it been applicable, it could have availed the applicant. Her argument on the first issue therefore fails.
The second issue is whether the respondents have fettered their discretion by adopting the policy on awards for students attending designated courses for the purposes of the 1992 regulations, who are not entitled by operation of the Act under the 1992 regulations to a mandatory award, and whether they have fettered their discretion by the manner in which that policy was applied to the applicant.
The principle is well-established and it is common ground that a local authority cannot adopt a policy which precludes the exercise of its discretion, nor can it slavishly follow a policy without regard to the merits of individual cases. Those principles are established by cases to which I need not refer, other than to identify them as R v London County Council ex parte Corrie [1918] 1 KB 68 per Avory J at p 74, R v Port of London Authority ex parte Kynoch Ltd [1919] 1 KB 176, a case in which R v London County Council ex parte Corrie was specifically approved by the Court of Appeal, and more modern cases, such as Stringer v Minister of Housing and Local Government [1971] 1 WLR 1281 in which the case of R v Port of London Authority ex parte Kynoch Ltd was cited, and which was itself applied in Attorney-General (ex rel Tilley) v Wandsworth London Borough Council [1981] 1 WLR 854. The applicant argues that in the adoption of the policy to which I have referred the respondents have precluded the exercise of their discretion under s 1(6), and have adhered slavishly to that policy without regard to the merits of the applicant's case. In the interest of making good that proposition it has been necessary for the applicant by her counsel to examine some of the documents in this case in a little more detail, as I shall now have to do. I have referred already to the subcommittee's review of discretionary grants which took place on 8 December 1992. As I have also indicated, it was recommended that no awards under s 1(6) of the Act be made, rather than allow them at the full rate.
In relation to the third of the options considered by the subcommittee, they said:
'Under the third and most far-reaching option, all major awards would be made on a "tuition fees only" basis. This would have the effect that those students described in section 3.2 of this report as coming within the scope of s 1(6) of the Education Act 1962 would not be eligible for any form of award. This is because the Act requires that if any discretionary award is made to such students at all, then it shall be at the full mandatory rate, including maintenance.'
I have read that option simply because it contains, as is apparent, reference to that consideration which governed the policy subsequently evolved by the respondents.
The education committee on 20 January 1993 adopted the option of making no maintenance grants for students on courses leading to the relevant NVQ level, and resolved that it be implemented in respect of applications for these courses commencing from the beginning of the 1993/94 academic year.
The only extant file notes relating to the conversations with the applicant's father are in July 1993. The notes relating to 15 July 1993 show that he was told:
'Unfortunately there is no assistance for second qualifications under current policy...
The discretionary policy is reviewed annually and assistance is not, currently, available.'
I read that account by an officer of the respondents themselves, because it shows how unequivocally the policy was expressed. When inquiry was made on the applicant's behalf by Councillor Barman, an internal memorandum was prepared by Mr Tyson. It was dated 16 July 1993 and it mentioned that:
'Under the 1993 discretionary awards policy she [the applicant] would not be entitled to an award for any of this second degree course.'
Later in his note, Mr Tyson said:
'It is an unfortunate fact that under the Education Act 1962 any discretionary award paid to students in these circumstances would have to be paid at the full mandatory rate.'
He added:
'...it was therefore decided that in view of the fact that assistance could not be limited to fees only in the above cases no assistance could be provided with either fees or maintenance. Previously such students would have received a discretionary award for part of their studies only (the previous policy was outlined to the student in 1990).'
He concluded by saying:
'Her application has therefore been considered under the new policy and she has therefore been turned down for an award.'
It is to be noted that that memorandum was plainly expressed in terms of the operation of a policy to which no exception was contemplated. Had it been, one is entitled to suppose that a note such as that would have proceeded to consider the merits of the applicant's position, at any rate so far as they were then known to the respondents.
By letter of 23 July 1993 to the same councillor, Mr Tyson said:
'Any assistance for Miss Jones could therefore only come via the council's discretionary awards scheme. Because of the requirement to achieve expenditure reductions the criteria to qualify for the discretionary awards scheme have become progessively tighter over the last years or so and unfortunately Miss Jones does not qualify under the current scheme.'
Similarly by a note, apparently of a conversation with the councillor, it was recorded, presumably by one of the respondents' officers, that the councillor had suggested that the respondents should write to the applicant confirming that 'no assistance is available under current policy', and the writer of the memorandum agreed with that.
There followed the decision letter to the applicant herself of 30 July 1993 in which Mr Makin, the educational services secretary, apologised for the fact that the applicant had only heard by telephone that her application, as he put it, 'is not eligible for either a mandatory or a discretionary award', and he regretfully confirmed that her application 'is not eligible for either'. As one of the reasons for that, he said:
'The council's current policy for discretionary awards limits those awards to courses leading to a National Vocational Qualification (NVQ) or courses specifically recognised by the authority for awards purposes...'
He also made plain to the applicant that when she inquired about an award for a medical course in 1990, the criteria were less restricted. He added:
'Unfortunately the need to limit expenditure has meant that the council has subsequently had to consider its spending priorities very carefully and has subsequentially reduced the budget available for discretionary awards by applying the stricter criteria described above.'
Mr Makin wrote again to the applicant (in response to an intervening letter of hers) on 17 August 1993. He explained that:
'A designated course is a course which has been approved by the Department for Education for mandatory awards purposes... Your application was therefore considered for a discretionary award. Regrettably under current policy you do not qualify for a discretionary award.
In determining the policy to be applied to discretionary awards for 1993 the council decided that assistance would not be given for second degree courses such as this.'
One could not have it plainer than that.
The last such letter was written to the applicant by Mr Tyson on 3 September 1993. In it he gave his explanation for the council's refusal to afford her a grant, saying:
'The decision not to assist students undertaking a second designated course from "local" funds was taken at the meeting of the education committee on 20 January 1993 following a recommendation by the Libraries, Youth and Further Education Subcommittee.'
Those documents, or some of them, were exhibited to affidavits sworn by Mr Tyson and Mr Makin on 2 September 1993. In Mr Tyson's affidavit he explained that:
'The denial of any maintenance element as part of future discretionary awards by the respondent necessarily had the effect of making s 1(6) awards no longer available, since these could only have been offered on the basis that both tuition fees and maintenance would be paid if the student's application upon assessment led to this outcome, and the payment of a maintenance element would have been inconsistent with the respondent's decision.'
He then added this passage which, so far as the court is aware, constitutes the first intimation to the applicant or anyone associated with her that there was, or might have been, any form of consideration given to exceptional cases. Mr Tyson said this:
'However notwithstanding the applicant's ineligibility for an award under the terms of the present discretionary awards policy, the respondent's procedures do allow for consideration of individual cases outside the terms of the policy in exceptional circumstances. This would be by the educational services secretary in consultation with the chairman of the Libraries, Youth and Further Education Subcommittee in an appropriate case. I believe that the educational services secretary concluded in this case that there were no exceptional circumstances meriting reference of it to the chairman, a conclusion with which I agree.'
In responding to paragraphs of the applicant's affidavit, Mr Tyson said later in his own affidavit:
'...the respondent's position is that any award under s 1(6)... would have to admit of the potential at least for both a tuition element and a maintenance element. It was because paying maintenance in addition to tuition would be inconsistent with the respondent's new policy that s 1(6) awards were discontinued.'
He said finally:
'The policy which the respondent adopted was rather one which made s 1(6) awards no longer available to any students, regardless of whether they would be assessed as being entitled [to] maintenance or not.'
He thought it right to add:
'It is further submitted that this was a perfectly lawful policy to adopt, subject as it was to the respondent's procedure for departing from it in an exceptional case.'
In the first of his two affidavits Mr Makin said that, as far as it was a matter for him, he found 'the applicant's contentions that assurances were given to her by unnamed representatives of the respondent as to the availability of an award after she lodged her 1993 application unconvincing'. He also said:
'I can find no other circumstances in the case which might make it merit special consideration outside the terms of the policy.'
Later in his first affidavit he said:
'The new policy clearly had the effect of disqualifying a number of students who under the old policy would have had an expectation of a maintenance award as part of a discretionary award from receiving the same, and to this extent it generated a lot of inquiries, several of which were pursued through councillors.'
Later in his affidavit, concerning representations said to have been made by or on behalf of the respondents as to her eligibility for an award, he said:
'...even if, contrary to my belief, such a representation was made, then had I been aware of this I doubt that it would have made a difference to the respondent's decision. The representation would clearly have been an unauthorised one, and what I would have had to consider is whether the applicant had been prejudiced by it in such a way that it would be unfair to refuse her an award.'
He was speaking, of course, of such a representation as the applicant and her father asserted had been made to them respectively when they inquired of the council about the continuing availability for an award in support of the course which the applicant contemplated undertaking.
Finally, for good measure, Mr Makin exhibited to his second affidavit of 21 April 1994 the minutes of the Libraries, Youth and Further Education Subcommittee of 15 March 1994, in which, in setting out the discretionary awards policy, there was included, and included so far as the evidence shows for the first time, a paragraph to this effect:
'Appeals/exceptional cases
There are no formal appeals procedures. Exceptional cases falling outside the normal policy will be considered on an individual basis by the educational services secretary, in consultation with the chairman of the Libraries, Youth and Further Education Subcommittee.'
The expression 'falling outside the normal policy' is a little obscure, but it is presumably intended to refer to cases which do not fall to be refused in the manner or for the reason that the applicant's application had previously been refused.
By reference to that material Miss Ornsby contends that there is no contemporary evidence that at the time the applicant's application was considered by the respondents, it was subject to an exceptions procedure of the kind adumbrated by Mr Tyson. She also submits that there is no documentary evidence setting out what the procedure was, when it was adopted, by which committee it was adopted, or what the criteria are which constitute exceptional circumstances in the judgment of the council or which might be capable of doing so. Nor is there any evidence relating to other students who may have been the subject of such a procedure. Although it is said to operate automatically as part and parcel of the procedure of applying for the award, the application form for an award makes no provision for personal information to be supplied by an applicant so as to show or suggest that the application is, or might be treated, as of an exceptional nature.
Miss Ornsby argues that according to Mr Tyson's affidavit the procedures allow for the educational services secretary to determine a case in consultation with the chairman of the relevant subcommittee. Yet the respondents adduced no evidence to suggest that either the applicant or any others in her position were told that such a determination of an application is possible; nor is there evidence that any of them has been told what criteria have to be satisfied so as to procure that method of determining an application; nor has it been revealed upon what basis the chairman, in consultation with the educational services secretary, would entertain such a reappraisal of an application. In any event, in the present case, so far as the procedure did consist of consultation with the chairman, it did not take place.
It is to be noted that Mr Makin only became involved in the applicant's case upon his own account when a formal inquiry was made of him by a councillor. But that was only after the decision had been made by the respondents to refuse an award to the applicant, and indeed it was after the applicant's father had been told of that decision. It cannot, therefore, be contended, for purposes of this case, that Mr Makin himself could have considered whether the matter fell to be dealt with under the exceptional circumstances procedure before the decision had actually been made.
He says that he considered the applicant's case at the time of the query raised by the councillor, but there is no evidence before the court that Mr Makin considered any circumstances, so far as the respondents knew, which were peculiar to the applicant. He merely satisfied himself that she fell within the policy and, therefore, did not qualify for an award. Mr Makin also says that he has considered the matter in relation to the application for judicial review. Miss Ornsby submits that that suggests that no formal exceptional circumstances procedure exists, if it be the fact that an applicant is only considered under that procedure after a decision to refuse has been made, communicated to the applicant and challenged by her in proceedings such as these. In any event, it is to be noted that the applicant had not been invited at any stage to say what circumstances differentiated her case from others.
Finally Miss Ornsby prayed in aid paragraphs from her opponent's skeleton argument, in which it is said on behalf of the respondents:
'In the circumstances, even if the applicant should have been invited to make representations as to why there should be a departure from the policy in her case, any representations she would have made would have made no difference to the result.'
With comparative brevity, but with a spirit that more than made up for any shortfall in quantity, Miss Booth submitted that the applicant is not a special case, because hers is a case in which there would have to be a full award, if any award. The respondents enjoyed no such discretion as they formerly had to give her a fees only award. This is a matter, as is apparent from the passages I have read from the affidavits and other documents before the court, in which the applicant's case was considered by Mr Tyson and his staff in May and June 1993, and also at the time when the councillor raised the matter, and later still when leave to apply for judicial review was given by this court. On each occasion she says that the respondents had decided that this was not a case in which to make a full award to the applicant under s 1(6).
So far as the special circumstances upon which she might rely are concerned, they relate to representations which are said to have been made to the applicant or her father. That allegation was considered by the respondents once the matter had been raised, though it was only raised specifically when application was made for leave to apply for judicial review. Having considered the representations alleged to have been made, the respondents take the view that they were not made. But, as Miss Booth submits, they go further because, even if such representations had been made, the view had been taken that that circumstance should not lead to an exception being made in the applicant's favour.
In any event, she was told on 15 July 1993 that there was to be no award for her at a stage when she was still in employment. Indeed, it was only after that that Leeds University apparently wrote to her indicating that she had still an opportunity to withdraw her application to attend their course, but she nevertheless chose to continue even though by then she had been told that she would not receive an award. She therefore, as Miss Booth contends, has not been misled by any representation that may have been made to her by any member of the respondents' staff, and it cannot be said in those circumstances that no reasonable authority, looking at these matters relating to the representations alleged to have been made to the applicant or her father, could have reached the conclusion reached by this local authority.
Miss Booth adds that the respondents cannot be criticised for not treating her position as exceptional in September 1993, because at that stage the suggestions about representations made to the applicant had not been disclosed to the respondents. Finally she reminds the court that by their original letter of 14 May 1990 there was no positive representation made by or on behalf of the respondents that the applicant would receive an award, but only that she would be considered for one.
It is, of course, legitimate for a statutory body such as the respondents to adopt a policy designed to ensure a rational and consistent approach to the exercise of a statutory discretion in particular types of case. But it can only do so provided that the policy fairly admits of exceptions to it. In my judgment, the respondents effectually disabled themselves from considering individual cases and there has been no convincing evidence that at any material time they had an exceptions procedure worth the name. There is no indication that there was a genuine willingness to consider individual cases. On the contrary, there is every indication of rigid adherence to their policy of refusing those eligible for discretionary awards on the grounds that the respondents would be obliged to make full awards and were not prepared to do so.
The exceptions procedure was referred to by the respondents for the first time in answer to the applicant's application for judicial review. It looks as though when, for the purpose of drafting his affidavit, Mr Tyson was pressed to say how an exceptional case might have been dealt with, he gave an answer about the education secretary consulting the chairman of the relevant subcommittee. That, however, as I have already remarked, did not happen in this case. There is no indication that it ever has happened. The respondents have made no provision for seeking or responding to exceptional circumstances. It follows that if, as it is said to be, the procedure was part and parcel of the making of an application for an award, it inevitably operated without regard to any such circumstances as would have revealed that any particular application for an award was in fact exceptional. In my judgment, an effective exceptions procedure depends on having the information available by reference to which special circumstances can be assessed, with a view to considering whether an exception should be made in favour of the individual concerned.
I am not satisfied that the respondents had such a procedure in place at the time for the most obvious of all reasons that there was no prescribed method of eliciting exceptional circumstances from applicants without which the procedure could not operate. The result is that the respondents fettered their discretion by adopting a policy from which no departure was contemplated of invariably refusing awards to applicants under s 1(6) of the Act for designated courses. The applicant was the victim of that policy. She and her father say that they had several reassurances by telephone that the respondents' former policy was still applicable. Those telephone conversations are repudiated on behalf of the respondents on the ground that they ought not to have taken place. They may not have. I cannot try that issue.
The applicant's application was then dealt with tardily. Thereafter, in face of her application for judicial review, an exceptions procedure seems to have been developed, as witness the recommendation by the relevant subcommittee on 15 March 1994, by which time, at any rate, the need for such a procedure had become apparent.
I have come to the clear conclusion that by adopting their policy of refusing discretionary awards on the ground that it was not possible to make fees only awards, the respondents did disable themselves from exercising their discretion in individual cases; that they were, therefore, not prepared to consider the applicant's application individually to see whether it deserved special treatment; and that even if they had been, there was no communication of any such policy to the applicant and no provision in the application form which might enable the applicant to demonstrate grounds for soliciting exceptional treatment. In view of those considerations it is not possible to say that the applicant has been afforded a proper opportunity to make such representations as she believes support her request for special consideration.
Although the respondents' rejection of her application thus far might not seem to augur well for a fair reappraisal of her application, the respondents have hitherto been in a defensive position for the purposes of these proceedings. Now that they are no longer in thrall, I trust that taking account of the aggravation to which this episode must have exposed her, the respondents will feel able to accord to the applicant the exceptional treatment that she may now be thought to merit. It is doubtful whether simply to refuse her application by means that are unexceptionable will any longer be seen to be just.
There will be an order of certiorari to quash the respondents' decision of 30 July 1993.
I apprehend, Miss Booth, that no order of mandamus will be necessary.
MISS BOOTH: My Lord, no.
DISPOSITION
Costs to the applicant. Legal aid taxation.
SOLICITORS
Teacher Stern Selby for the applicant local authority solicitor
NEVILLE HARRIS BARRISTER
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