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Going through a problem question

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Richard Kirkham

on 19 May 2011

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Transcript of Going through a problem question

The Government is concerned that its policy of encouraging individuals to take responsibility for their own health has failed to make much impact. The Government's main concern centres on the financial implications this failure has for NHS budgets but they have promoted the policy under the banner of 'The Nation's Health - Feel Better in the 21st Century'.

Under new legislation, the Citizens Health Act 2009, the Secretary of State for Health is given powers 'to provide grants to voluntary and other bodies who are working to promote better health'. The Act provides that the Minister must be satisfied 'that their activities are such that they will make an impact on the nation's health in their particular field'.

Under section 3 (1) of the Act, grants will normally be given to cover a two year period and regular monitoring of the performance of grant-holders must be carried out by or on behalf of the Minister. According to section 4 (1) of the Act, the Minister may issue licences to private companies to undertake these monitoring functions, 'if he sees fit'. The Minister does set up a licensing scheme and issues a licence to one company, Healthspec, to undertake regular inspection visits to grant-holders.


1)Plus-size-and-proud (PSAP) is a pressure group. It wishes to challenge the Minister's action in giving a grant to Slimco. Slimco operates a rigorous slimming programme in uncomfortable surroundings on a farm in Yorkshire. Slimco's policy is to impose a strict fasting regime which has proved very successful at least in the short-term, but there are some fears about the long-term dangers of such a rigorous programme. PSAP have heard that Slimco were given the grant because their operation is not an expensive one, and because the Minister dislikes fat people.

2)Jane runs an alternative therapy clinic which has successfully treated people who wish to give up smoking. Her clinic has a waiting list of people seeking treatment and Jane would like to be able to expand her business so she applies for a grant under the Act. In her application she provides details of the substantial research evidence which shows that the type of therapy she offers is currently the most effective available for smokers. Jane found the application procedure difficult as the Department for Health's website lacked information about the application process and the application form itself was difficult to download. She rang the Department's dedicated helpline on several occasions and either did not receive an answer or was promised that someone would ring back with more information. However, no-one from the Department evr rang back. Her grant application is refused with no reasons given.

3)Rod runs a voluntary group which meets once a week and uses local sports facilities to help people with physical disabilities take part in sporting activities. He has been successful in gaining a grant of £2000 to provide equipment and training to the organisers of the group. Healthspec come to inspect one of Rod’s sessions. The Healthspec inspector informs Rod that the grant is going to be revoked with immediate effect, because Healthspec think that the group’s activities are a waste of time.

4)A new EU Regulation concerns standards to be met for all exercise equipment sold direct to the public. Gymco manufacture and sell a new and unique type of exercise equipment which is cheap and easily portable. Medical tests have confirmed its benefits for those, like the elderly, who prefer to exercise at home. Unfortunately, it does not meet the new EU standards. Gymco are the sole manufacturers in the EU and their business depends on the sale of this equipment.

Advise PSAP, Jane, Rod, and Gymco. 1. Be prepared - ie know the law

2. Understand the game - read past papers

3. Read the question thoroughly

4. Work your way through the question methodically
HAVE A PLAN The Government is concerned that its policy of encouraging individuals to take responsibility for their own health has failed to make much impact. The Government's main concern centres on the financial implications this failure has for NHS budgets but they have promoted the policy under the banner of 'The Nation's Health - Feel Better in the 21st Century'.

Under new legislation, the Citizens Health Act 2009, the Secretary of State for Health is given powers 'to provide grants to voluntary and other bodies who are working to promote better health'. The Act provides that the Minister must be satisfied 'that their activities are such that they will make an impact on the nation's health in their particular field'.

Under section 3 (1) of the Act, grants will normally be given to cover a two year period and regular monitoring of the performance of grant-holders must be carried out by or on behalf of the Minister. According to section 4 (1) of the Act, the Minister may issue licences to private companies to undertake these monitoring functions, 'if he sees fit'. The Minister does set up a licensing scheme and issues a licence to one company, Healthspec, to undertake regular inspection visits to grant-holders. 1)Plus-size-and-proud (PSAP) is a pressure group. It wishes to challenge the Minister's action in giving a grant to Slimco. Slimco operates a rigorous slimming programme in uncomfortable surroundings on a farm in Yorkshire. Slimco's policy is to impose a strict fasting regime which has proved very successful at least in the short-term, but there are some fears about the long-term dangers of such a rigorous programme. PSAP have heard that Slimco were given the grant because their operation is not an expensive one, and because the Minister dislikes fat people. What do I do about procedure? 1. At the beginning

2. At the end

3. As I go along Note EU issue in Part 4, deal with separately

PSAP, Jane and Rod potentially judicial review

Therefore: If applying for JR all applicants will need to follow:

- Two stage procedure

- In writing to Administrative Court

- Need to demonstrate: Pre-action protocol

3 month time limit

Arguable case

Standing

Against public body PSAP and Standing Possible (National Federation of Self-Employed Businesses)
Need strong argument in law plus
Recognised body, with reputation, relevant knowledge, lack of alternative claimants (eg WDMF, Greenpeace)
BUT remember Rose Theatre Co FEW FACTS TO GO ON SO WILL NEED TO ASK RELEVANT QUESTIONS INSTEAD 2)Jane runs an alternative therapy clinic which has successfully treated people who wish to give up smoking. Her clinic has a waiting list of people seeking treatment and Jane would like to be able to expand her business so she applies for a grant under the Act. In her application she provides details of the substantial research evidence which shows that the type of therapy she offers is currently the most effective available for smokers. Jane found the application procedure difficult as the Department for Health's website lacked information about the application process and the application form itself was difficult to download. She rang the Department's dedicated helpline on several occasions and either did not receive an answer or was promised that someone would ring back with more information. However, no-one from the Department evr rang back. Her grant application is refused with no reasons given. PSAP = Public Interest Group

Ombudsman only receives complaints from individuals or bodies with a grievance

Therefore Judicial Review 'PSAP have heard that Slimco were given the grant because their operation is not an expensive one, and because the Minister dislikes fat people.' Improper Purpose and Irrelevant Considerations? eg Roberts v Hopwood, Wednesbury
Analogous cases?
What does the Act say?
What purpose can we infer? The Government is concerned that its policy of encouraging individuals to take responsibility for their own health has failed to make much impact. The Government's main concern centres on the financial implications this failure has for NHS budgets but they have promoted the policy under the banner of 'The Nation's Health - Feel Better in the 21st Century'.

Under new legislation, the Citizens Health Act 2009, the Secretary of State for Health is given powers 'to provide grants to voluntary and other bodies who are working to promote better health'. The Act provides that the Minister must be satisfied 'that their activities are such that they will make an impact on the nation's health in their particular field'. Look out for red herrings
Note the conflicting purposes
Be prepared to infer purposes if necessary
eg 'economically sound' (WDMF) What's an irrelevant consideration? Consideration needs to be logically connected to purpose
And/or does not undermine the purpose Operation inexpensive?
Dislike of fat people? Slimco operates a rigorous slimming programme in uncomfortable surroundings on a farm in Yorkshire. Slimco's policy is to impose a strict fasting regime which has proved very successful at least in the short-term, but there are some fears about the long-term dangers of such a rigorous programme. Is there bias here? “A fair minded observer would consider a real possibility of bias.”
Porter v. Magill

But - 'justifiable fear of bias'?

Is there a predetermination or just a predisposition? Things to think about How strong is the legal argument?
Are there some practical reasons why she may not be eligible for JR?
Will it change anything if she wins?
Might there be a better solution elsewhere?
Is there evidence of maladministration? The Legal Argument Wednesbury unreasonableness?
'Within the range of rational reponses'

Duty to give reasons? - Doody

If no reasons perhaps there are no good reasons? (Padfield v Minister for Agriculture) But need supporting evidence (Lonhro) Consider the Ombudsman Identify correct ombudsman
Identify process and ombudsman powers
Identify potential maladministration that led to an injustice
Identify potential outcome 3)Rod runs a voluntary group which meets once a week and uses local sports facilities to help people with physical disabilities take part in sporting activities. He has been successful in gaining a grant of £2000 to provide equipment and training to the organisers of the group. Healthspec come to inspect one of Rod’s sessions. The Healthspec inspector informs Rod that the grant is going to be revoked with immediate effect, because Healthspec think that the group’s activities are a waste of time. Is Healthspec a Public Body for JR purposes? What function is Healthspec performing?

Consider the different approaches in Datafin et al and YL v Birmingham The Minister does set up a licensing scheme and issues a licence to one company, Healthspec, to undertake regular inspection visits to grant-holders. Unlawful sub-delegation? Under section 3 (1) of the Act ... regular monitoring of the performance of grant-holders must be carried out by or on behalf of the Minister. According to section 4 (1) of the Act, the Minister may issue licences to private companies to undertake these monitoring functions, 'if he sees fit'. But for what purpose may sub-delegation occur?

Monitoring/Inspection, yes

Revoking licences, no
eg Barnard, Audit Commission v Ealing BC Legitimate expectations? eg Coughlan

Namely same rationale for grant that led to the award is now being used to revoke grant

No overriding public interest

Substantive or procedural? The Healthspec inspector informs Rod that the grant is going to be revoked with immediate effect, because Healthspec think that the group’s activities are a waste of time. 4) A new EU Regulation concerns standards to be met for all exercise equipment sold direct to the public. Gymco manufacture and sell a new and unique type of exercise equipment which is cheap and easily portable. Medical tests have confirmed its benefits for those, like the elderly, who prefer to exercise at home. Unfortunately, it does not meet the new EU standards. Gymco are the sole manufacturers in the EU and their business depends on the sale of this equipment.

NB The problem is a regulation, hence generally applicable

Art.263 - Procedure for JR

EU court can quash reg (Firma Foto-Frost)

Can Gymco use the Plaumann argument to demonstrate direct and individual concern?

Need Legal ground
Proportionality? Lack of competence?
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