Farrell, R (on the application of) v Cheshire County Council (Rev 1) [2009] EWHC 260 (Admin)

Case No CO/8838/2007[2009] EWHC 260 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd February 2009
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MCKENNA
(Sitting as Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF FARRELLClaimantv
Between
CHESHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Fullwood (instructed by Stripes Solicitors) appeared for ClaimantMr O'Brien (instructed by Cheshire County Council) appeared for Defendant
J U D G M E N T
[1]HIS HONOUR JUDGE MCKENNA: This is the hearing of an application for judicial review arising out of a decision made by Cheshire County Council, notified by letter dated 9th July 2007, not to grant the claimant, John Farrell, what has been described as a Cheshire badge which would allow him to drive buses either owned or contracted to Cheshire County Council. Permission to pursue this application was granted at an oral hearing on 21st April 2008 by Cranston J.[2]In summary, the claimant challenges the decision of 9th July 2007 on three grounds. Firstly and principally, on the basis that the decision was unlawful because the defendant County Council have failed to notify the claimant at any point as to the criteria that it would adopt when determining Mr Farrell's application. Secondly, on the basis of a failure to give the claimant an oral hearing; and thirdly, on the basis that the decision was flawed for irrationality.[3]As counsel for the claimant rightly conceded during the course of his argument, the second and third aspects are really extensions of the first ground. The reality, as it seems to me, this application stands or falls by the contention that the council's decision was flawed on account of a failure to notify the claimant as to the criteria that the defendant would adopt when considering Mr Farrell's application. I should also say at the outset that it is conceded by Cheshire County Council that at no stage did it in fact provide the claimant with details of the criteria which it would adopt.[4]The factual background to this application can be summarised in this way: the claimant has driven buses for most of his working life, I think he is 59 years old. He applied for a position driving yellow school buses for the defendant in September 1999, having previously worked as a driver for another company for some 10 years or more. He was offered a position and started work and was given a Cheshire badge which was valid for three years. This is the badge which is granted after vetting of the driver has been completed; the reason being that the drivers will be working with children on behalf of the council.[5]It is fair to say, and I do not think that I need to go into the detail, that Mr Farrell got into some disciplinary difficulties with the defendant as a result of which, on 11th October 2002, he was notified in writing that he was to be suspended. On 4th December 2002, the claimant was admitted to hospital; and it is also fair to say that during this period his evidence was that he was suffering personal problems of one sort or another.[6]In early January 2003, he was informed that the investigation had been completed and he was invited to attend a disciplinary meeting on 21st January. He was then notified that he had been found guilty of a number of allegations which were made against him. By letter dated 24th January he was formally notified of the outcome of the hearing. As a result, a final warning was issued which was expressed to remain on his file for two years, and he was to be redeployed from so called yellow bus work to work on the defendant's passenger fleet.[7]He appealed against that decision on the 28th January. On 30th April, the suspension was lifted but the claimant's health was such that he could not return to work and in November 2003 he resigned from his employment with the defendant.[8]In 2004, at the time when his existing Cheshire badge had still not expired, he applied for a further badge but that application was not processed.[9]In November 2006, a further application was made and pursued by Mr Farrell which led to a decision on 1st May 2007, a copy of which is at bundle one page 389, the material contents of which are as follows:
"Whilst the disclosure itself [that is a criminal records bureau search] does not identify any matters for concern, having taken into consideration previous disciplinary matters, as summed up in the letter of 24th January 2003, the department has come to the decision not to issue you with a vetting badge. In coming to this decision the department has considered all the relevant factors in mitigation that you raised at the time of the original procedure and all the matters which have subsequently been raised by your solicitor. However, the fact remains that you are found to have behaved inappropriately and you are removed from school buses indefinitely. It is acknowledged that this decision is not subject to review but this was due to the fact that you were off work due to sickness and then there was provisions for an appeal."
[10]On 18th May 2007, an appeal was requested by letter dated 14th May 2007. Mr Farrell set out a number of matters that he wanted to have taken into account and produced a number of documents, including some references which can be found at bundle 2, page 3105 and following, which include: references from a Mr Preen, unsigned and not on headed note paper; references from a bus company called Pegasus; and another company called Local Motion; and another reference from a Mr Massey. It is also fair to record that the claimant's solicitor also made representations by letter.[11]All of that material was considered by Louise Rees who is described as County Policy Manager, Children's Services at the defendant's council. By letter dated 9th July 2007, Mr Farrell was notified of the outcome of his appeal.[12]It is, as I say, against that decision that this application for judicial review has been brought. The material section of that letter is as follows:
"The concern the department has from your previous disciplinary history centres on the difficulties you experienced in maintaining appropriate boundaries in managing the behaviour of children on your bus. I looked very carefully at the character references that you have provided and I note that they refer to you as, "hardworking, honest conscientious and reliable."
I have also given great consideration to the information you personally submitted together with correspondence from your solicitor as well as the references. Whilst the references are very positive, they do not give sufficient assurance that positive steps have been taken to ensure you are now better able to observe appropriate boundaries concerning the interaction and behaviour management strategies regarding the children who would be travelling on your bus. I also note that two of the references from Pegasus and Locomotion have not been provided on official company headed paper which I find a little surprising."[13]It concludes:
"On the basis of the information provided to me, I am therefore unable to over turn the previous decision concerning refusal of a driver's badge."
[14]In support of the claimant's primary submission that the decision is unlawful because of the failure to notify the claimant as to the criteria to be applied to his application, I have been referred to, first of all, the decision of the McGary VC in the McInees v Onslow Fane and another, reported at 1978 WLR, page 1520 and following; and the more recent decision of Scott Baker J, as he then was, in the Quark Fishing case, to be found at 2001 EWHC Admin 1174, and in particular, to paragraphs 66 to 69; and to the Court of Appeal decision in the same case, in particular, paragraph 58, where the approach of Scott Baker J, as he then was, was approved.[15]Having identified the three categories of cases involving the application of the Rules of Natural Justice and Procedural Fairness, Scott Baker J at paragraph 67 identifies where the case before him properly fell; namely the second category as an application case. At paragraph 68, he says as follows:
"In my judgment, the rules of natural justice are underpinned by fairness and accordingly they require to be tailored to the particular administrative decision making exercise under consideration."
[16]Then at paragraph 69, in terms of the particular facts of the case he had before him, he said:
"As far as in my judgment there is no reason why applicants for such a licence should be left in any doubt about the criteria upon which they will be granted. The process should be transparent and the criteria published at the time applications are invited."
[17]It is said in support of the claimant's application that in the same way, in this case, Mr Farrell should have been provided with the criteria on which his application would be granted. There is much force in that submission, as it seems to me which is perhaps reflected in the way in which counsel for the defendant sought to persuade me that notwithstanding that there were no published criteria or criteria communicated to the claimant, that in any event Mr Farrell must have been aware of what the criteria were because he sought to deal with, in particular, his somewhat unfortunate employment history with the defendants when submitting his material. Of course, counsel sought to make much of the absence of any identification of material which the claimant could have deployed which, it was said, he was prevented from supplying since the decision was not made until the application for judicial review was made and indeed down to the present time. Of course, the difficulty with that submission is that unless and until Mr Farrell knows exactly what the criteria are, it is perhaps a bit rich for the defendants to say that he has not identified any material which he could have deployed but was prevented from doing so by not knowing what the criteria were. Again, counsel for the defendant sought to rely on the existence of the appeal process. But again, to my mind, one comes back to the same point, unless and until one knows what the criteria are on which the decision is being made, the existence of an appeal process of itself does not, as it seems to me, get over the procedural unfairness, as I see it, of not having criteria.[18]For all these reasons, therefore, it does seem to me, that the decision made by Louise Rees, I am sure in all good faith, must be quashed and the defendant must be required to provide transparent criteria for deciding on what basis these badges are going to be, or not going to be, awarded.[19]I have to say that in coming to this conclusion, I do have some reservations, not the least of which being a strong feeling that even if this decision is, as I have decided, quashed and formed criteria are formulated, the likelihood is that the result will be the same. Of course, I cannot be certain of that, otherwise I would not be making the order that I am. It may be that Mr Farrell will be able to produce sufficient material which would enable the decision maker to come to a different decision on a fresh application.[20]So, what order do you want Fullwood?[21]MR FULLWOOD: The order I want is firstly that the application for judicial review be allowed. Secondly, that there is a quashing order in respect of the decision dated the 9th July 2007 by Louise Rees; I do not think that I need a declaration. What I would seek next is an order demanding the defendant to publish clear criteria that it will use when determining applications for Cheshire badges.

HIS HONOUR JUDGE MCKENNA: Is that it, Mr Fullwood?

[23]MR FULLWOOD: Well, I have also included some provisions, maybe, for a timetable but I think that if my learned friend could indicate, obviously in light of your judgment, and I think that he already has, that he will now make a fresh application and it will be determined. They must have a reasonable time to do so. Obviously, I do not think that I need to impose a timetable or a written timescale.

HIS HONOUR JUDGE MCKENNA: I do not think I would be prepared to do so anyway, Mr Fullwood.

[25]MR FULLWOOD: No, I am not asking.

HIS HONOUR JUDGE MCKENNA: Can I just check with Mr O'Brien, is he content with those three orders?

[27]MR O'BRIEN: My Lord, I need to be clear as to whether we are publishing criteria which will apply to all applicants for Cheshire badges, or are we being asked to publish criteria making plain what information we feel is relevant when processing the application by a former Cheshire employee. The reason I say that is if it is going to be something which effects a wider group then we may end up from the start and look at the forms again.[28]HIS HONOUR JUDGE MCKENNA: You also have the issue, have you not, that Cheshire County Council is going to cease to exist on 1st April?[29]MR O'BRIEN: Cheshire is going to cease to exist on 1st April. So my Lord, clearly if there is an order that within so many days we notify Mr Farrell that if he wishes to make a fresh application this is what he is should do, and these are matters which we may wish to take into account; and if he wants to address them by supplementary information then he should do so.[30]HIS HONOUR JUDGE MCKENNA: I understand your caution. Mr Fullwood, what do you say?[31]MR FULLWOOD: My view is that the only sensible way of doing this to avoid a future problem is to have objective and rational criteria that will be applied for all applications, because I can foresee difficulties in the proposal for the option at least for just having criteria for this individual case, when obviously there are many others people applying for Cheshire badges. It has to be objective, I think that the council accept that. If it is objective, it should be applied for all applications for Cheshire badges because that would be the only way of avoiding future difficulties. I think the shake up of Cheshire into east and west may well provide an opportunity for formulating such a countywide policy or criteria.[32]HIS HONOUR JUDGE MCKENNA: I suspect there might be a lot of other things they have to do as well. Mr O'Brien, it does seem to me that it is bit difficult to --[33]MR O'BRIEN: My Lord, what I make absolutely plain now, on behalf of Cheshire, is that my learned friend and his clients have had ample opportunity if they were going to say that it is irrelevant to take into account the history. The reason I say this is, is that I noted that my learned friend used objective criteria which could apply to everybody. Now, there are people who could be Cheshire employees and there are people who will not have been Cheshire employees; and I just want to make it plain that where someone has been an employee the local authority are likely to want to have a criteria which allows looking at somebody's previous employment history as a driver. Now, that may be --[34]HIS HONOUR JUDGE MCKENNA: I am more than happy if it assists, Mr O'Brien, to say that I have no doubt whatsoever that when considering whether or not to grant a Cheshire badge to an individual that person's employment history with Cheshire County Council must be a relevant factor.[35]MR O'BRIEN: My Lord, I am grateful for that, because what I did not want to do is --[36]HIS HONOUR JUDGE MCKENNA: And I do not think that Mr Fullwood would say otherwise, would you, from the way --[37]MR FULLWOOD: I do not dispute that at all.

HIS HONOUR JUDGE MCKENNA: I thought that was the case.

[39]MR O'BRIEN: You will understand my anxiety because what I do not want to do is go back and have the County Transport, who are dealing at the moment with a number of other things, as you imagine when trying to divide a county which has existed for hundreds and hundreds of years, trying to sort out that, trying to edge round the judgment. My Lord having made that position clear it becomes a lot easier.[40]My Lord, what would be appropriate, I think we really need to know this, is how quickly Mr Farrell would wish to be able to request sight of the new policy, so if he wants to make a fresh application he can do so. My learned friend is not suggesting that if the answer is that it is going to take, here we are now at the beginning of February, we are going to be into April and it is going to be a couple of months.

HIS HONOUR JUDGE MCKENNA: Mr Fullwood?

[42]MR FULLWOOD: Well, I had this discussion with your Lordship. I was hesitant about suggesting a time frame because I know that Cheshire is changing in April. Obviously, Mr Farrell wishes to reapply as soon as possible but we appreciate the practical challenges that are facing Cheshire. In terms of this issue, the relief at three at the end of my skeleton argument, is one that we therefore feel is appropriate. But again, you have already indicated, my Lord, that you do not want impose a timetable.[43]HIS HONOUR JUDGE MCKENNA: I do not think it is right for me to do. It seems to me, that it is now for Cheshire to go away and produce its criteria. It is no good me saying well, you must do it in 14 days or 28 days, particularly when I know Cheshire is going to cease to exist; and I do not know who the right person in East Cheshire or West Cheshire will be. There may come a time when, if Cheshire have not produced objective criteria, Mr Farrell might have some recourse to the court although I hope it does not come to that, but subject to that it seems to me that it is a matter for Cheshire just to get on with it, in so far as they can, along with all their competing claims on their time.[44]MR FULLWOOD: Well, my Lord, in that case if the order in paragraph 3 could be made which does not impose a timetable but is clearly requiring Cheshire to devise and publish to the criteria.[45]HIS HONOUR JUDGE MCKENNA: Right, so firstly, application for judicial review allowed. Secondly, quashing order in respect of the letter of 9th July 2007. Thirdly, defendant or its successor authority to formulate and publish criteria to be adopted by the defendant or successor when considering applications for Cheshire badges, or whatever they will become in the new order.[46]That, I think that is probably it, is it not, apart from costs?[47]MR FULLWOOD: It is, the only other orders I seek are, first of all, an order that the defendant do pay the claimant's costs to be assessed if not agreed. The other order for costs is a detailed assessment of the claimant's CLS funding costs.[48]MR O'BRIEN: My Lord, I cannot resist that.

HIS HONOUR JUDGE MCKENNA: Good.

[50]Right, thank you both very much.[51]MR FULLWOOD: Thank you my Lord.