Fettering and exception making

It is a matter of legal principle that a statutory discretion must be exercised, and cannot simply be put on the shelf and ignored by those officers made responsible for the function. A discretion is something which may be exercised, or it may not, and the way in which a decision is reached, is subject to the scrutiny of the Administrative Court, for unreasonableness or for having overlooked relevant considerations.

Discretions can be exercised from time to time (say from year to year) but not for longer periods without re-consideration; and it is an absolute rule that authorities given a discretion must never say ‘Never’. If they do, they are fettering the discretion that was given by Parliament, and can be judicially reviewed for over-rigidity.

However, at the same time, the courts appreciate that administration cannot run smoothly if every single case has to be examined in minute individual detail right from scratch; and also that electoral mandate attaches a legitimate weight to policies being developed on the part of local and central government. So authorities are allowed to have policies, as to how they will generally exercise their discretion, when they have a choice. A local authority may also wish to ensure consistency in decision making by establishing policy guidelines or rules, because consistency is thought of as a good in its own right. A policy must not firm up into an absolute rule, however.

 

The administrative law framework of the UK requires that policies must not

(1) be based on considerations which are legally irrelevant nor

(2) be applied so rigidly that an exercise of discretion in each individual case is precluded

Some famous examples of these principles in action can be found in the law reports. For instance, in LCC ex p Corrie, bylaws prohibited selling anything in parks without the consent of the council. The Council resolved to withdraw the existing consents and to grant no new ones. It was held that this resolution was beyond its powers – because councils must consider applications on their merits. This case could be relevant to policies about the suitability of direct payments for particular clients or client groups, or to decisions by health authorities not to fund any further free nursing care, although the criteria are still in force and the local authority can no longer buy it themselves, for someone who has qualified under the criteria.

In Attorney General ex rel Tilley v London Borough of Wandsworth, the local authority adopted a social services resolution not to provide accommodation for families with young children whose parents were deemed by the housing authority to be intentionally homeless (pre Children Act). This was held to be invalid because it laid down a policy without exceptions, which so fettered the authority’s discretion as to prevent proper consideration of the particular circumstances of a child or its family.

In North Yorkshire County Council, ex p Hargreaves (No 2) a challenge was made to the council’s inflexible policy regarding refusal to fund the basic cost of taking a holiday by a disabled person, and its restriction of its functions under the CSDP Act to the funding of the additional costs of taking the holiday attributable to the disability.

In Lambeth London Borough Council, ex p Ashley the local authority’s scheme under s22 Housing Act 1985 was found to be rigid and inflexible, and therefore unlawful, as it did not allow for account to be taken of number of persons affected within one household and the number of categories of need, when assessing priority.

Another example is AG v Tynemouth Union in which there was a decision to write off unpaid loans made to miners during the 1926 coal strike. This decision was held to be beyond the authority’s powers – because the decision had been taken on a general basis without regard to means, and the ability of particular debtors to repay. This principle could be relevant to the illegality of deciding not to pursue a whole particular client group for repayment of their social care charges.

In Fisher, an NHS Trust’s policy decision not to authorise the supply of Beta Interferon for certain Multiple Sclerosis sufferers was quashed. This was because the decision had been taken in blatant and disingenuous disregard of government guidance. When the applicant was referred to one of the local Trust’s hospitals, a consultant assessed him as suitable for the drug, but the Trust declined to fund his treatment when the HA declined to make any further funding available. The HA was sceptical about the merits of the drug anyway, and despite the government guidance, of which they were aware, officers told the Trust that their policy was to consider funding only for patients participating in a randomised control trial. When the HA finally realised that any trial was still 18 months away, it reconsidered the options, including release of £50,000 it had identified as a last resort, but decided to maintain its current policy until it was “no longer sustainable”. Even when the NHS Executive again emphasised that there was no further reason for delaying the introduction of local purchasing policies for the drug, the HA decided it could not ban the use of the drug, but that it would not provide any “new money” for it.

The court held that whilst not being absolutely obliged to follow the policy in the Circular, if a HA decided to depart from it, then it had to give clear reasons for so doing, and if it failed to understand the guidance, its policy would be defective anyway. This policy was plainly not in accordance with the Circular. The within-a-trial policy revolved around testing the efficacy of the drug, not treating people with it. The policy was not a reasonable way of giving effect to the Circular and it was not open to the Authority to fail to implement it just because it disagreed with it altogether.

Making exceptions is therefore an important local government or health authority responsibility, related to keeping the authority on the right side of the law, which should be the remit of accountable senior management and Members. But the making of the exceptions is governed by public law principles as well. Exceptions should be made rationally, not as a knee jerk reaction to threatened litigation.

Once an exception is made, it does not in law set a precedent for the same outcome, even in similar cases. That is the whole point of an exception. It may set a bandwagon rolling so far as people pressing for the making of exceptions is concerned, but that sort of pressure simply goes with the territory of working in the public sector, discharging statutory functions which are largely discretionary and which turn on judgments about people’s situations relative to one another.

Making exceptions is strong management, not weak, because it announces to the world that the authority is flexible, can see the difference between two similar situations, and can acknowledge that sometimes its carefully thought out policy left something out of account which makes all the difference.

 

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