Excess OR Absence OF Power PDF

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EXCESS OR ABSENCE OF POWER EXCESS/ABSENCE OF POWER: A public body acts unlawfully if it does something which is outside the “four corners” of the powers conferred by the statute governing the particular matter AG v Fulham Corporation 

Literal Approach o Lees V Sec of State for Social Services

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Purposive Approach o R v Sheffield Supplementary Benefits Appeal Tribunal, ex parte Shine  “Householder…. directly responsible for household necessities and rent”  It is plain that Parliament intended that the Supplementary Benefit Act 1996 should be administered with as little technicality as possible. It should not become the hunt ground of lawyers…The courts should not enter into a meticulous discussion of the meaning of this or that word of the Act. The should interpret …the Act in a broad and reasonable way according to the spirit and not to the letter.”  What is parliament trying to do to supply the benefit….   

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Form to welfare to supplement the benefit to people with low income The statute said if u r householder, u have to responsible for household necessities and rent?? Not the householder because you didn’t pay the…..

Conflict between literal and purposive approaches o A court may only depart from plain/natural meaning if words in issue are unclear/ambiguous– Dupont Steels Ltd v Sirs  A court may depart from the plain/natural meaning …….if the clear meaning will lead to an absurd result  In statute point normally is literal approach…?  If the word is unclear, it is possible to apply purposive approach o True meaning of words only discoverable from the statute as whole”  DPP v Bull 

Meaning of “common prostitute” in Sexual Offences Act 1959  Sexual offences act 1959 only woman can be common prostitute . the courts: common prostitute is woman, not man (in section1) s1 must assume that the woman commits that offence

o R v Social fund Inspector, ex parte Connick  Funding not available for “medical items”  Judge concludes the inspector applied the wrong legal test for determining what constituted a “medical items  Use the wrong test because it doesn’t work

Parliamentary materials and statutory interpretation Pepper v Hart Only permissible if all of the following are satisfied (a) Legislation was ambiguous/unclear/lead to absurdity (b) Material = statement by minister (c) Effect of statement(s) is clear

Law or fact? question of “law”: 1. identify, interpret and apply the Law which pertains to the decision 2. identify and examine relevant facts & evidence 3. follow the correct procedures in order to identify and examine the relevant facts& evidence NOT a question of “law” – issue is whether they are right or wrong  assess the relevant facts & evidence, and decide whether, in its view, Joe Bloggs is a fit and proper person to hold the licence.

Anisminic v Foreign Compensation Commission All questions of law are matters for the reviewing court – the assessment of the facts is a matter for the decision-maker empowered by Parliament to take the decision in question R v South Hams DC ex p. Gibb R v Social fund Inspector, ex parte Connick

“Mixed law and fact” OR “Fact and degree” R v Industrial Injuries Commissioner Ex parte A.E.U. -

Concern a statute which a person was entitled to industrial injury benefit Injury caused by an accident Out of or in the course of his employment Work in a factory Have a break from 1030-1040

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Smoking area was full He was waiting there1045?? A truck came around the corner and hit him Broken leg Seek benefit but was refused court: is impossible to identify Judicial review- court should not intervene??

R v Hillingdon LBC ex parte Puhlhofer 

“a broad spectrum from the obvious to the debatable, to the just conceivable, it is the duty of the court to leave the decision..to the public body”

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Unless wednesbury unreasonable

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2 parents and 2 children Must provide accommodation to person who homeless the council provide them a place to stay 1 room house, no cooking and washing facilities C said, no it is fined Claim for Judicial review and argue that council fail to provide accommodation Is this accommodation? Court will not interfere unless it is absurd..???

R v MMC ex parte South Yorkshire Transport Ltd    

“so imprecise that different decision makers each acting rationally might reach differing conclusions” Unless wednesbury unreasonable “ ‘substantial’ part of the UK” The court: different decision makers each acting rationally might reach differing conclusion

Matters of fact which the courts will review 1. Precedent facts 2.Fundamental factual error. 1. Precedent facts A body acts in excess of its powers if it makes an error of PRECEDENT FACT For example: If the weather is sunny the seminar leader may hold the seminar outdoors -

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If the word “sunny” is a factual matter  Seminar outdoor: power  they decide whether the weather is sunny and decide whether hold the seminar outdoor or not This is not part of decision, pre-condition which must look into

How can one distinguish between a factual matter which is not regarded as a precedent fact, and one that is?

Forms of negative statutory construction White & Collins v Min for Health  Could approve the compulsory purchase so long as the land was not part of a PARK

Nature of the decision making exercise – who is best suited to assessing the facts in the circumstances? R v Sec of State for the Home Dept ex parte Zamir [1980]

Nature of the decision making exercise – R v Sec of State for the Home Dept ex parte Khawaja [1984]  The fact that power triggered involved a deprivation of liberty meant the court must enquire into the correctness of the factual circumstances which gave rise to the authority to exercise the power

Scope for Judicial disagreement R v Sec of State for the Home Dept ex parte Zamir [1984]

2.Fundamental factual error. Here we are concerned with what we might call fundamental/basic/objective errors of fact R v Housing Benefit Review Board of London Borough of Sutton, ex parte. Keegan (1995) 25 HLR 92. 

Traditionally fundamental error of fact was treated as a species of Wednesbury unreasonableness.

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However, there is a developing trend towards treating it as a freestanding ground.

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In E v Secretary of State for the Home Dept [2004] EWCA Civ 49 the Court of Appeal said o In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law… First, there must have been a mistake as to an existing fact….Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning. o So this ground of review simply relates to situations where the decision maker makes a mistake which is not dependent on matters of opinion/evaluation/judgment, and it is possible to provide clear, and unambiguous evidence which directly contradicts findings of objective factual matter relied on by the decision maker, and upon which the decision in question relies.

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It is important to stress here that the sort of “fact” at issue, is not one which depends on judgement/evaluation. Thus in the Montes & Anor v Secretary Of State For Home Department [2004] EWCA Civ 404 the Court of Appeal said o The extent to which a mistake of fact can amount to an error of law for the purposes of founding an appeal on a point of law, was recently considered by this court in E and R v Secretary of State for the Home Department EWCA Civ 49…the principle articulated by this court in E and R was closely and carefully circumscribed. This needs to be emphasised. If the principle is applied too broadly there is a real danger that this will lead to an unacceptable conflation of errors of law with errors of fact. It is necessary to maintain the distinction since this court cannot entertain appeals on fact. That is why in E and R the court stated that it was a necessary, but not sufficient, condition for a mistake of fact giving rise to unfairness as a separate head of challenge in an appeal on a point of law, that the mistake should be as to fact or evidence which is relevant, as well as uncontentious and objectively verifiable....