Public Law Case Update – Q1 2024

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In this spring edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the first quarter of 2024 which highlight important points...
UK Government, Public Sector
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In this spring edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the first quarter of 2024 which highlight important points of principle and procedure.

Our team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them. This edition contains some interesting cases on consultation, as well as the application of policies:

Consultations without proposals and the timing of challenges

R (CU) v Secretary of State for Education was a challenge to a question in a Government Green Paper on remedies available to the First-tier Tribunal in claims brought by children alleging disability discrimination by schools.

The claimant argued that the information provided alongside the question did not mention that the Tribunal did not currently have the power to order compensation. This contravened the second of the Gunning principles which requires that sufficient information be given to consultees to allow for intelligent consideration of the relevant issues.

At a rolled-up hearing, the Secretary of State (SoS) argued that permission should be refused as the claim was out of time, asserting that time started to run from the date of issue of the consultation, rather than the date it closed. The Court held that the answer will depend on the facts of the case and which Gunning principle is being invoked.

For example, a claim that there has been no conscientious consideration of responses will only crystallise at the end of the consultation process, whereas claims as to adequate time for responses and adequate information can crystallise at the beginning. In this case, whilst the most logical starting point would be the start of the consultation period, where the claimant had asked the SoS to remedy the flaw within a reasonable time the subsequent refusal was itself a new decision capable of challenge in its own right.

However, a claim in relation to adequacy of information should not await the final decision itself, unless the circumstances are such that there was a proper basis for saying that the final decision included a decision not to remedy the flaw in the prior consultation process.

Ultimately, the Court did not have to give a definitive answer on the timing point as it found against the claimant on his substantive grounds.

In  Secretary of State for Work and Pensions v Eveleigh & Ors, the Court of Appeal held that the Gunning principles apply only where –

  1. a public authority is proposing to make a specific decision that will affect a defined group or individual, and
  2. that proposal is sufficiently developed for its reasoning to be explained and consultees to intelligently comment on it.

In this case, although the Green Paper described itself as a consultation, the relevant question attached to no explicit proposal other than to explore how well current Tribunal remedies were working. The fact that the responses might affect the scope of the future investigation did not convert it into a proposal to which the Gunning principles applied.

The SoS also raised an argument under section 31(2A) of the Senior Courts Act 1981, that there was no substantial difference whether the information had been provided or not. However, the Court held that, although the claimant already knew the information he asserted had been withheld from the Green Paper, the 'outcome' for him within the meaning of section 31(2A) included all consultees being able to respond on the basis of that information. It could not be said that the result of the consultation was highly likely to be the same in such circumstances.

However, although the Court did not refuse permission on the basis of the timing or section 31 points, the claim was dismissed on the merits.

The importance of telling consultees why a proposal is being made

In  R (Police and Crime Commissioner for the West Midlands) v Secretary of State for the Home Department the High Court considered a challenge made by the Police and Crime Commissioner for the West Midlands (the PCC) to a decision made by the SoS to transfer the PCC's powers to the Mayor of the West Midlands.

The focus of the challenge was the lawfulness of the consultation process that was undertaken by the SoS. In particular, the PCC contended that –

  1. the consultation was not undertaken at a 'formative stage' but only when the SoS had a closed mind, having already decided to make an order,
  2. no sufficient information was provided to permit the public a fair opportunity to participate,
  3. the responses to the consultation were not conscientiously considered, and
  4. the decision-makers failed to take reasonable steps to acquaint themselves with relevant information.

The Court observed from the outset that Grounds 1 and 3 were connected, as the underlying contention was that the SoS' decision was a foregone conclusion. The context was that the SoS had already made two 'decisions' to transfer the relevant powers. The first was rescinded as he had not obtained the consent of the West Midlands Combined Authority, which was required as the law stood at that time, and the second was withdrawn as the required statutory consultation had not been undertaken.

Ultimately, the Court found no real possibility that the SoS had undertaken the consultation with a closed mind.

Ground 2, on the other hand, succeeded. The Court clarified that the sufficiency of information depends upon the context of the consultation. For example, here it was a statutory requirement and so it was necessary to identify whether the consultation met the purpose of the corresponding statutory provision.

Before making an order, section 113 of the Local Democracy, Economic Development and Construction Act 2009 (the Act) required the SoS to be satisfied that the transfer was –

  1. likely to improve the economic, social and environmental wellbeing of some or all of the people living or working in the area, and
  2. appropriate having regard to the need to secure effective and convenient local government and to reflect identities and interests of local communities.

The Court considered that, as a minimum, the consultation ought to enable the public to comment on the SoS' reasons why the conditions under the Act were satisfied.

The information provided on this occasion fell 'well short of this mark' as the consultation did not explain why the relevant conditions were met. It therefore did not provide sufficient information to permit such an intelligent and informed response.

The SoS attempted to rely on section 31(2A) of the Senior Courts Act 1981, arguing that even if the consultation had been conducted unlawfully it was highly likely that the outcome would not have been substantially different.

However, the Court noted that section 31(2A) sets a very high bar. Had different (unspecified) information been provided as part of the consultation in this case (as it should have been), the consultation may well have produced different responses. There was too much uncertainty to conclude that the outcome was 'highly likely' to have been substantially the same.

The decision was therefore quashed with elections for the PCC (which would otherwise have been cancelled) taking place on 2 May.

Adhering to statutory guidance and a past practice of consultation

In R (Medical Justice) v Secretary of State for the Home Department, the High Court considered the lawfulness of a Home Office policy which required immigration caseworkers to seek a second opinion on external medical opinions submitted in relation to people in immigration detention as to their vulnerability to harm in detention (the Policy).

Medical Justice (MJ) is a charity that facilitates the provision of medical assessments, advice and assistance to people who are detained in immigration removal centres. It therefore provides the sort of external medical opinions which were the target of the Policy.

MJ contended that the Policy was unlawful for the following three reasons –

  1. It contradicts statutory guidance (the Guidance) issued under section 59 of the Immigration Act 2016. The Guidance requires consideration of 'available evidence'. However, the Policy encourages caseworkers not to give external medical opinions sufficient attention or weight, even when they meet required standards.
  2. It frustrates the statutory purpose of section 59 in that it results in longer detentions notwithstanding evidence of vulnerabilities or likely harm.
  3. The SoS was under a duty to consult on the Policy on the basis of previous practice but did not do so.

The Court considered Grounds 1 and 2 together. It agreed with MJ that the Guidance required that a person not be detained where the available evidence shows that this is not justified.

While this does not mean that other information cannot be taken into account, it would be contrary to the Guidance to postpone a detention decision for more than a de minimis period of time after receipt of material new evidence in the form of an external medical report. However, the Policy required caseworkers to systematically postpone decisions in cases where a second opinion was to be sought. 

As the statutory guidance was required to be approved by Parliament, it was not open to the SoS to contradict or undermine it without Parliament's approval.

The Court also agreed with MJ that there was an unlawful failure to consult. Absent a statutory duty to consult, a legitimate expectation of consultation can arise in common law on the basis of either an explicit promise or an established practice of consultation so consistent that it amounts to a promise.

In this case, the Court was provided with witness evidence from MJ that for over 15 years the SoS had 'routinely and consistently' consulted it – and other members of a stakeholder forum on asylum detention – on draft policies that fell within its area of expertise. Sometimes that consultation took place through the stakeholder forum and sometimes it was a more informal process conducted through email exchanges with selected organisations. The Court noted that the SoS had not provided evidence to contradict that claim, instead seeking to have MJ's witness evidence struck out – which the Court declined to do.

While acknowledging that the bar to demonstrate an established practice is high, the Court concluded that MJ's unchallenged evidence meant that it had a legitimate expectation of consultation on the Policy. The SoS had provided no explanation as to why a consultation had not taken place.

MJ was successful on all three grounds and the Policy was quashed.

Flexible policies and expert decisions

In  R (The Duke of Sussex) v Secretary of State for the Home Department, the claimant challenged the decision of the Executive Committee for the Protection of Royalty and Public Figures (RAVEC) that, as he was no longer a working member of the Royal Family, he would no longer be provided with the same degree of publicly-funded security by the police when in Great Britain. RAVEC made that decision on behalf of the SoS.

In a  previous update, we covered the decision refusing permission on the papers on all grounds. Permission was later granted on certain grounds following an oral hearing.

The claimant argued RAVEC failed to follow its own policy without good reason. He also argued that the decision to remove the security lacked transparency in failing to provide him with RAVEC's policy, and lacked procedural fairness by denying him the opportunity to make representations.

The policy in question was RAVEC's terms of reference. The claimant submitted that this required RAVEC to commission a risk analysis before deciding whether to remove his protection. It had not done so and therefore breached the principle that a policy must be followed unless there is a good reason not to.

The Court held that the terms of reference was not a hard-edged policy but rather a document used by RAVEC in the context of a number of value judgements. The Court noted that RAVEC's members had significant knowledge and expertise in their highly specialised area and the Court had to be wary of concluding that expert adjudicators had fundamentally misunderstood how to go about their allotted tasks – particularly where these were rooted in prerogative powers. In this case, they had used that expertise to put in place a bespoke assessment with respect to the claimant.

More generally, the Court criticised the claimant's mechanistic and overly literal approach to the terms of reference which subjected the RAVEC process to an interpretative approach more suitable for legislation or statutory guidance.

The Court also dismissed the claimant's transparency argument. It noted that the concept of transparency is not attributable to any legal standard and that the courts were not well placed to prescribe legal standards for the principle.

The argument that RAVEC was applying an undisclosed or secret policy was misplaced as the claimant was aware of the central point of contention – he believed that he should be given protection and RAVEC disagreed.

Furthermore, the evidence of frequent meetings and discussions with the claimant showed that RAVEC had not acted in a procedurally unfair manner.

The claimant asserted that he should have been able to make representations based on the approach taken by RAVEC to other VIPs. However, the names of those VIPs were obviously highly sensitive in nature, and only disclosed as part of the duty of candour. The Court held that the position of those individuals had no bearing on the position of the claimant, other than providing a template for the bespoke approach to his assessment adopted by RAVEC

Dealing with extreme financial circumstances can be a legitimate aim

The claim in  R (YVR) v Birmingham City Council was brought on behalf of a severely disabled man who was unable to work and receiving care from the council (BCC).

BCC assessed the claimant as having needs that neither he nor his family could meet. In such circumstances, the law obliges BCC to meet those needs, but gives BCC discretion to charge for some of the support given.

The claimant relied on benefits, being unable to earn. The law required BCC to assess his finances before charging for the support, as charging is prohibited where an individual's income is below a statutory threshold. BCC concluded that part of the claimant's income was recoverable through charging.

The Court held that the relevant regulations deliberately privileged earned income to incentivise paid work. This could be both irrational, because individuals 'cannot be incentivised to do that which they are incapable of doing', and unfair, because it privileges earners over those whose disabilities prevent them working.

However, the framework had to be considered as a whole and Government guidance discouraged the 'unconsidered assumption' that benefits were entirely available for recovering charges. In other words, councils could take steps under their own charging policies to mitigate the difference in treatment established under the regulations.

BCC developed its charging policy (the Policy) intending to raise revenue for use towards the adult social care budget. The Policy included benefits as income for recovering charges, but also provided an uplift to the statutory income threshold for individuals to purchase certain support items.

BCC charged the claimant the maximum amount under the statutory scheme, having classed all of his benefits as relevant income.

The claimant alleged, among other things, that the Policy was discriminatory – under both human rights and equalities law.

The Court found that the Policy failed to relieve individuals from the statutory privileging of earned income over income from benefits. This was discriminatory, treating disabled people who could earn differently from those who could not.

However, discrimination can sometimes be justified and the Court went on to consider whether the Policy was a proportionate means of achieving a legitimate aim.

BCC has well-publicised financial difficulties. While cost-saving is rarely a legitimate aim in itself, in this context, the Court agreed that the 'imperative' of reducing spending and maximising revenue was a legitimate aim justifying the different treatment between earned income and benefits.

The Court granted BCC a 'degree of latitude' for budgetary decisions, particularly because it was constrained by Government intervention in its financial crisis, noting that 'sacrifices' were being made by everyone in the city. This was an 'exceptional' decision, resulting from BCC's situation of 'disaster recovery'.

The Court could not identify any less intrusive options available to BCC. Some councils may have other choices for raising the revenue, but BCC had no other source of income to enable it to charge those who cannot work less.

A cautionary tale about responding to an adverse judgment with effects on outstanding matters

In the previous case of  KTT, the Court made a declaration in respect of the interpretation of published Home Office policy on applications for leave to remain in the UK (leave) for victims of modern slavery (Victims) claiming asylum. KTT was upheld on appeal.

The issue in XY v Secretary of State for the Home Department was the way in which the SoS sought to deal with similar applications while the appeal in KTT was outstanding.

The claimant was a Victim claiming asylum. He was deeply traumatised by his experiences and submitted evidence that his wellbeing would not improve until he felt 'safe and stable' in the UK.

While an appeal against the refusal of his asylum claim was pending, the claimant made an application for leave under the policy and brought a challenge to the defendant's 'refusal' to issue a decision on that application for over a year.

The Court noted that KTT  was the law, and unless and until overturned on appeal, 'an authoritative statement' of the policy's meaning.

While KTT  was under appeal, the SoS did not seek to stay the operation of the Court's declaration, or amend the policy to state that until the appeal was settled no decisions would be made in certain cases. The Court acknowledged the potential political consequences of such action, but noted that this could not 'dilute' the importance of relevant legal principles.

The Court noted that maintaining the published policy suggested that leave would continue to be granted while, in reality, Home Office officials were instructed not to serve decisions on applicants. The claimant argued that this instruction operated as an unpublished policy which contradicted the position maintained in public.

It transpired that a decision had been made to refuse the claimant's application but that due to the unpublished policy this decision had not been communicated to the claimant. The Court held that this deprived the claimant of the opportunity to challenge the refusal, and was unlawful.

The Court noted that even when responding to legal challenges on delays to applications under the published policy, the SoS did not explain that decisions were on hold – instead, leave was granted to those bringing proceedings (including the claimant). This strongly supported the contention that leave was offered to keep the true position 'secret'.

The Court also found that the SoS breached the duty of candour. The SoS took the approach of 'revealing as little as possible, and only then in response to specific requests', inconsistent with the requirement for parties to approach litigation with 'cards face up on the table'.

The Court agreed that if the defendant had disclosed the unpublished policy earlier, the claimant's representatives would not have had to go to 'considerable effort'to obtain information elsewhere.

Similarly to  IAB (see  our previous edition), the Court noted that the SoS misunderstood what qualified for redaction for irrelevancy. Unless disclosure would be positively harmful or involve disproportionate disclosure, material should not generally be withheld on irrelevance grounds.

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