hardship

[zaffie]

Hi

trying to claim charges back for daughter. She is single mum on SMP tax credits and child benefit. I think she fits definition for hardship case.

Bank have taken £780.00 in little over a year more charges are going on!!

Went to HSBC with her to try and sort it out. They wanted her to take a managed loan just to repay bank charges:mad:

Her debit card was swallowed up by hole in wall and bank wont give her another. We are trying to get a cash card for her. Meantime she cannot get her benefit money whats she meant to live on?

I cannot believe how callous HSBC are being.

Does any one know how to put a good hardship case? I have worked a budget and it shows she has not got enough to live on now let alone pay bank charges

Thanks

Zaffie

[saintly_1]

If you approach the bank on the grounds of hardship they will prolong the process by requesting that you fill in their I&E form so have a look here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/154154-hardship-stayed-claims.html this will save a few weeks.

 

saint

[maroondevo52]

Hi, zaffie.

 

To add to Saintly1's post.

 

Sorry to hear about the bother your daughters having.

 

They should not be taking her benefits, you could try sending them this.

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/42170-right-appropriation-stop-bank.html

 

Regards.

 

Scott.

[saintly_1]

Another thought try opening another account at a different bank not connected to hsbc snd get her benefits paid into that instead

[zaffie]

Hi

 

Thanks for the quick replies.

I have already seen posted links. Infact included in prelim letter there is a record of finances and i have quoted the social security administration act 1992 sub section 187.

 

How skint do you have to be to be a "hardship" case. Daughter is in debit each month just from paying basic daily essentials and rent. HSBC lumping on their charges just makes it a whole lot worse. Especially so now as she cannot get to any money without her card.

Regards

Zaffie

[johnnymitch]

Hi zaffie -

 

What saintly is referring to is a 'Parachute Account'. Basically it's an account where you have all your money paid in for day to day living expenses, but don't go overdrawn.

 

That way, HSBC cannot get their hands on your money unless you pay it to them.........

This link should get you started :

 

http://www.consumeractiongroup.co.uk/forum/general/13832-do-you-need-parachute.html

 

If your daughter changes her benefit payments to the other bank as soon as possible, it'll give her breathing space to consider how to deal with HSBC.

Whatever happens, she should not be talked into taking out a 'Managed Loan'. The horror stories on this site regarding them would make your hair stand on end! LOL

You are getting good advice from others Zaffie - so take it on board once you've cleared your feet with the Para a/c

Best of luck stick with it and you'll get there.....

[kashfat]

Hi guys i was wondering if anyone could give a template to letter to fill in on a N224 form on the grounds of severe hardship? any help would be great:confused:

[johnnymitch]

It's already on the other thread kashfat , but there you go

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/41901-form-n244-application-notice.html

[zaffie]

Hi

quick update

parachute account opened

LBA sent record of finances sent hardship quoted. Standard reply from bank about stayed claims but asking to phone if suffering from financial hardship is this a good idea? if they had looked at my enclosed record of finances they could see I was in trouble!!

Now after the 14 days do I start legal proceedings or go to FOC?

Thanks

Zaffie

[johnnymitch]

Hi zaffie,

 

I would say write , not phone , and point out to them what you've said here ref your record of finances........... ask them again to consider treating your claim as a financial hardship case.

However , you've sent them an LBA - so don't let them off that hook - stick to that timetable , initiate court action , and then you can apply the 8% (s.69) interest and court fees........

You can still go to the FOS later if you think they've turned you down unfairly.......

[zaffie]

Dear

thank you for your letter dated 2 september 2008 advising that you are still in financial difficulties.

 

as previously advised, we would like to help you by carrying out a review of your individual circumstances and as part of the review we will be able to verify that you are indeed suffering financial hardship. If we consider that you are suffering financial hardship, our focus will be to consider what we may be able to do to assist (whether by re-scheduling debt or by alternative borrowing arrangements), and not solely to consider refunding charges as you have requested.

 

As you have not contacted us, we have been unable to assess if you are in financial difficulties. Until you contact us, as requested, we are unable to proceed and as a result your claim will remain on hold.

 

I have again enclosed our leaflet "putting your finances in order" which contains an income and expenditure form. I note you have included your own however we will need you to please complete this so that our records will contain your full financial picture.

 

Once you have completed the income and expenditure form please contact us on 08456006423 (monday-Friday 8am to 6pm). Calls may be monitored or recorded for the purposes of quality control.

 

Should you choose not to contact us as requested, I can confirm that the Banks position in relation to your complaint about bank charges will remain as stated in our letter dated 27 August 2008

 

As previously explained, we have recorded your complaint and once the legal proceedings between the Office of Fair Trading (OFT) and the banks are complete, we will resolve your complaint as quickly as possible.

 

I apologise for not being able to provide you with a full response now, but we will make sure that you are provided with appropriate up-dates about the proceedings with the OFT. I would remind you that you can check the latest position on our web-site at

 

Hi

Letter from HSBC.

I have sent recorded delivery 3 times records of finances.

What more do they want?

I was offered at branch a managed loan to which I declined.

They don;t seem to be embrassing the FSA waiver conditions at all advice please

Zaffie

[johnnymitch]

Hi zaffie , they're playing silly beggars as usual .........

Send them a letter (recorded delivery) - telling them you have already complied 3 times - enclose another copy if you can and that you are now reporting them to the FSA/ FOS for non- consideration of your hardship claim.

 

our complaints procedure and how to complain

 

Tell them also that you will not deal with them by telephone - only in writing and that they must do the same..........

 

Meanwhile, carry on with your claim - on schedule- don't let them off the hook -

 

So glad to see you resisted the Managed Loan - well done!

[johnnymitch]

Sorry zaffie , wasn't quite with it at 00.23 this morning LOL - I meant to post this too :

 

Making a complaint : FSA Money made clear—guides

[TUTTSI]

Hi Zaffie, I am also sorry to hear about your daughters plight with HSBC.

 

I agree with Johnny that HSBC are not playing ball and that it is parmount that she opens a new account immediately for for benefits.

 

IMHO, in order to make a hardship claim with HSBC you definately need to send them an income and expenses summary, all evidences of hardship, a statement of charges and compensatory interest together with a nice letter advising them why you fall under the FSA waiver rules for financial hardship. Basically as much info as you can throw in will help your case. I also believe this route is quicker than the court route as you will have to supply all of this at a latter stage and your claim could get stayed along with the majority of cases in the court system at the moment.

 

I did this with my Abbey claim and have just been paid out and I also know someone else with First Direct which is part of HSBC who has also had his hardship claim paid.

 

Under the hardship rules the banks only have to look sympathetically at claims it is not written in stone that they have to pay out. So at this stage being nice and appeal to their better nature would be more prudent.

 

If after you have done this and HSBC do not play ball the you have 2 options, one to complain to the CEO of HSBC on the grounds that they have not looked sypathetically at the claim and secondly a complaint to the FSA and FOS.

 

I wish your daughter all the best and if there is anything further I can help with just shout.

 

Tuttsi xx

[zaffie]

Hi

thanks johnny for ongoing support.

Tuttsi I have sent income expenses summary three times. Do you know who CEO is and contact address?

Regards

Zaffie

[maroondevo52]

Hi, Zaffie.

 

These are the only contact details we have......

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/74985-hsbc-contact-information.html

 

You might find one you could use, even if it's just to get the info your looking for.

 

Regards.

 

Scott.

[TUTTSI]

Hi

thanks johnny for ongoing support.

Tuttsi I have sent income expenses summary three times. Do you know who CEO is and contact address?

Regards

Zaffie

 

Zaffie have you sent all evidences surrounding the hardship and a letter explaining. If you phone the customer services number ask them for the contact details.

 

I do hope you get somewhere very soon.

 

Fingers crossed for you.

 

Regards

Tuttsi xx

[johnnymitch]

Hi again zaffie

 

Tuttsi I have sent income expenses summary three times. Do you know who CEO is and contact address?

 

This is reason why I said report to FOS/FSA - I think being ignored three times is cause enough........

I've been on the HSBC website - their complaints procedure (outlined below ) doesn't include writing to the CEO - if you can find out who he is:rolleyes: - there are dozens of 'em apparently (I googled CEO HSBC) and got to page 35 without finding out who was the relevant CEO............

 

Part 3 of their complaints procedure says if you're not happy - complain to the FOS - so that's what I'd do, using the link I gave you earlier.

If you send a copy of your FOS complaint (recorded delivery)to HSBC Complaints Dept it may spark some action - they know FOS are getting cheesed off with Banks playing fast and loose............

How to complain: HSBC Bank UK

 

Come back if you need more info zaffie ........ stick with it , you're doing OK ..........

[zaffie]

Hi

Tuttsi yes letters have been sent claiming hardship. My daughter is luckier than most i have paid most of her bank charges to try to keep her afloat. She is not in arrears with rent etc as family have helpt her out. I can't do it any more no more money. Her account is in debit again solely from charges. She was homeless for a time and pregnant now on SMP and living on about 40% of what she was earning. Her record of finances clearly show she does not have enough for her basic needs and that the bank has been taking charges from her benefits. She opened another account and has her benefits paid into that. HSBC keep pilling on charges putting her deeper into debt. HSBC has been told all this.

Johnny I have not had the final word from HSBC yet and it has not been 8 weeks since refund of charges was asked stating hardship.

Regards

Zaffie

[johnnymitch]

Johnny I have not had the final word from HSBC yet and it has not been 8 weeks since refund of charges was asked stating hardship.

 

Ah, right zaffie , I've jumped the gun a wee bit then - sorry ,

then it's ammo for the future - HSBC are notoriously difficult to convince 'Hardship ' to. However, one or two people have managed it and I hope your daughter does too...............

[zaffie]

Hi

Thanks Johnny its great to have support. It will be me fighting my daughters case she has her hands full poor love. HSBC have had nearly £1000 from her including interest certainly more than £500 in 12 months which is a FSA indicator of financial difficulty not sure if I can use that to support hardship

Regards

Zaffie

[TUTTSI]

Thanks Zaffie for giving me more insight into your daughters hardship. I only want to help and not to hinder and was only trying to understand exactly where your daughter was at, which I think you can fully understand. Sometimes another angle to reach the end result can be a bonus.

 

Whilst I have been sucessful with Abbey we still have a couple of claims that we awaiting decisions on including HSBC on the hardship.

 

Whether you take my advice or others is for you and your daughter to decide. HSBC are extremely dificult to get the hardship through but with a little persevence you may get lucky.

 

Regards

 

Tuttsi xx

[zaffie]

Hi

Tuttsi any advice/strategies/hints most welcome. Been reading other threads including yours well done and there does not seem to be a consensus by the banks as to what is "hardship". even when someone seems to have a good case for removal of stay re hardship it does not happen. Well I'll keep on battling

Regards

Zaffie

[veester]

Agree with Tuttsi/Zaffie,

 

The HSBC are full of rubbish - they do not assess hardship inline with proper process, its all to get more money out of you.

 

They just told me they calculated my disposable income without taking any of my creditors into account - incl there own loan!!!!

 

They said i had £200 in disposable income - my HSBC loan payment is £200!!! Then proceeded to offer me a consolidation loan for my overdraft/credit card and loan.

 

They totally ignored guidelines set-out by the FOS; so know waiting for them to confirm all this stuff in writing; i.e

A) There assessment criterion

B) They offered me a consolidation loan

 

Then i have to go back to the HSBC with the FOS stating that

 

A) They did not consider all evidence - illegal

B) The assesment criterion for hardship is not inline with FOS guidelines

C) The I&E calculations are flawed as they do not take into account creditors.

 

And also using the premises of Natural Justice (as the HSBC is failing under a number of these areas - See Below for concept of Natural Justice, i found a number of these statutes apply to my case and will form basis of the complaint and communication to follow)

 

All delaying tactics by the muppets at HSBC!

 

Natural Justice

 

A. Definition

 

Natural Justice is an umbrella term for the legal standards of basic fairness. It is a fundamental doctrine within the common law, rested in centuries of legal tradition.

 

R v Panel on Takeovers and Mergers, ex parte Datafin PLC (1987).

Sir John Donaldson, Master of the Rolls

 

“... a failure to observe the basic rules of natural justice, which is probably better described as fundamental unfairness since justice in nature is conspicuous by its absence.”

 

B. Importance

 

John v Rees (1970) .

Justice Megarry

 

“It may be that there are some who would decry the importance of the rules of natural justice. ......those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered ; with inexplainable conduct which was fully explained; ........ nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find there is a decison against them as being made without their being afforded any opportunity to influence the course of events.”

 

C. Parliament’s Intent

 

Fairmount Investments Ltd v Secretary of State for the Environment (1976)

Lord Russell

 

“I am satisfied that if the true conclusion is that the course which events followed resulted in that degree of unfairness ... that it is commonly referred to as a departure from the principles of natural justice and it may equally be said that the order is not within the powers of the Act and that a requirement of the Act has not been complied with. For it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in paraticular procedures, compliance with those principles .”

 

R v Commission for Racial Equality ex parte Hillingdon London Borough Council (1982) - Lord Diplock

 

“I do not think that in administrative law as it has developed over the last 20 years attaching a label ‘quasi-judicial’ to it is of any significance. Where an Act of Parliament confers upon an administrative body functions which involves making decisions which affect to their detriment the rights of other persons ... there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision.”

R v Tower Hamlets London Borough Council ex parte Chetnik Developments Ltd (198 Lord Bridge

 

“Statutory power conferred for public purposes is conferred as if it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way in which Parliament when conferring it is presumed to have intended.”

 

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd (1995)

 

Lord Justice Rose

 

“statutory powers however permissive, must be used with scrupulous attention to their true purposes and for reasons which are relevant and proper”

 

Lord Steyn (1997)

 

“We live in a democracy in the narrow sense that majority rule prevails but, more importantly, we live in a liberal European democracy based on values of justice, liberty, equality and humanity. Judges are therefore entitled to assume, unless the Statute makes crystal clear provision to the contrary, that Parliament would not wish to make unjust laws.”

 

R v Secretary of State for the Home Department ex parte Pierson (199

Lord Steyn

 

“... unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.”

 

R v Secretary of State for the Environment Transport & the Regions ex p Spath Holme (2001) Lord Nicholls

 

“No statutory power is of unlimited scope”

 

D. Rights and Duties

 

1) Duty to promote the legislative purpose

 

R v Secretary of State for Home Department ex parte Brind (1991)

Lord Ackner

 

“The discretion .......... must be used only to advance the purposes for which it was conferred. It has accordingly to be used to promote the policy and objects of the Act."

 

 

 

2) Duty not to act ‘ultra vires’

 

HTV Ltd v Price Commission (1976)

Lord Denning - Master of the Rolls

 

 

“A public body which is entrusted by Parliament with the exercise of powers for the public good cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misue its powers: and it is a misuse of power for it to act unfairly or unjustly towards a private citizen when there is no overriding public interest to warrant it”.

 

Bromley London Borough Council v Greater London Council (1983)

Lord Scarman

 

“The unreasonableness of the decision i.e that which would enable the Court to conclude that it is one which no reasonable authority could have reached, is that it proceeded upon a misconception of the duties imposed upon the appellants by the statute.”

 

R v Hendon Justices, ex parte Director of Public Prosecutions (1994)

 

“It is implicit in the enactment that a conferred power is not to be exercised

unreasonably .......... If it is ... the conferred power can be characterised as illegal, void or a nullity”

 

3) Duty to act in good faith

 

Board of Education v Rice 1911

Lord Loreburn

 

“They must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything”.

 

4) Duty to act reasonable

 

Roberts v Hopwood 1925

Lord Wrenbury

 

“A person in whom is vested a discretion must exercise his discretion upon

Reasonable grounds. A discretion does not empower a man to do what he likes

merely because he is minded to do so - he must generally exercise the discretion to do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably”

 

R v Department for Education & Employement ex parte Begbie( 2000)

Lord Justice Laws

 

“Fairness and reasonableness and their contraries are objective concepts: otherwise there would be no public law, or if there were it would be palm tree justice.”

 

5) Right to fairness

 

Bushell v Secretary of State for the Environment (1981)

Lord Diplock

 

“in exercising their discretion, as in exercising any other administrative function they owe a constitutional duty to perform it fairly and honestly and to the best of their ability”

 

Board of Education of the Indian Head School Division of 19 of Saskatchewan v Knight (1990)

 

“ The existence of a general duty to act fairly will depend on the consideration of three factors:

 

i) The nature of the decision to be made by the administrative body

ii) The relationship existing between that body and the individual

iii) The effect of that decision on the individual’s right”

 

R v Inland Revenue Commissioners ex parte Unilever PLC (1996)

Lord Justice Simon Brown

 

“Unfairness amounting to an abuse of power .......... it is unlawful ....... because it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power”.

 

R v Secretary of State for Home Department ex parte Pierson (199

Lord Hope

 

Referring to the Secretary of State as “ bound by considerations of substantive

unfairness ...... as there are no statutory rules, the presumption must be that he will exercise his powers in a manner which is fair in all the circumstances.”

 

6) Right to procedural fairness

 

Greater London Council (1985)

Lord Justice Muskill

 

Went on to identify four ways in which a decision might be procedurally improper, namely,

 

“1. Unfair behaviour towards persons affected by the decision.

2. Failure to follow a procedure laid down by legislation.

 

3. Failure properly to marshall the evidence on which the decision should be based. For example taking into account an immaterial factor or failing to take into account a material factor or failing to take reasonable steps to obtain the relevant information.

 

4. Failure to approach the decision in the right spirit for example where the decision maker is actuated by bias or where he is content to let the decision be made by chance”

 

 

 

7) Duty of enquiry

 

The Secretary of State for Education and Science v Tameside M B C (1977)

Lord Diplock.

 

“the question for the Court is did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

 

R v Secretary of State for the Home Department ex parte Venables (199

Lord Justice Hobhouse

 

“Essential that (the Secretary of State) should be fully informed of all material facts and circumstances”, “it is not clear what account the Secretary of State took of this consideration nor that he took any steps to inform himself of the relevant facts”,

 

Duty to ask the right question

 

Secretary of State for Education and Science v Tameside M B C (1977)

Lord Wilberforce

 

“The ultimate question in this case, in my opinion, is whether the Secretary of State has given sufficient, or any, weight to this particular factor in the exercise of his judgement.”

 

Lord Diplock

 

“The Secretary of State did not direct his mind to the right question; and so, since his good faith is not in question, he cannot have directed himself properly in law”

 

9) Duty to consider all relevant material

 

R v Secretary of State for the Home Department ex parte Nelson (1994)

 

“Not satisfied that the material before the Secretary of State was properly considered before the decision was taken”

 

R v Legal Aid Area Number 1 (London) Appeal Committee ex parte McCormick (2000)

 

“The Committee cannot simply leave those issues in the air since their resolution ... could be beneficial ...”, “serious doubts about whether they did take into consideration all potentially relevant factors”

 

10) Duty to consider relevant evidence

 

Dakar v Minister of Transport

 

“There may be situations when the Ministerial body has not taken any extraneous factors into account and has confined itself solely to relevant factors, yet there has been such a distortion and lack of proportion given to the weight given to these that the final result cannot possibly hold up and is therefore, completely unreasonable.”

 

Secretary of State for Education & Science v Tameside Metropolitan Borough

Council (1977) Lord Wilberforce

 

“The ultimate question in this case, in my opinion, is whether the Secretary of State has given sufficient, or any, weight to this particular factor in the exercise of his judgement”

 

Recommendation Number R (80)2 of the Committee of Ministers (adopted 11 March (1980)

 

In describing this basic principle “an administrative authority when exercising a discretionary power .......... observes objectivity and impartiality, taking into account any of the factors relevant to the particular case”.

 

R v Parliamentary Commisioner for Administration, ex parte Balchin (199

 

“The relevant test .......... as well as a consideration has been omitted which, had account been taken of it, might have caused the decision maker to reach a different conclusion”

 

R v Director General of Telecommunications, ex parte Cellcom Ltd (1999)

Justice Lightman

 

“The Court may interfere if the Director has taken into account an irrelevant

consideration or has failed to take into account a relevant consideration.”

 

R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment and the Regions (2001)

Lord Slynn

 

 

 

“It has long been established that if the Secretary of State ............. takes into account matters irrelevant to his decision or refuses or fails to take into account matters relevant to his decision .......... The Court may set his decision aside”.

 

11) Duty to consider evidence of probative value

 

Mahon v Air New Zealand Ltd (1984)

Lord Diplock

 

In referring to a principle of natural justice that an investigative decision maker “must base his decision upon evidence that has some probative value.”

 

R v Wakefield Magistrates Court ex parte Wakefield M B C (2000)

 

The Magistrates decision “fatally flawed by its error of law in purporting to make a critical finding of fact, without having heard any evidence called in the proceedings upon which that finding of fact could properly be founded”

 

12) A right to see documents relied on

 

T A Miller v Ministry of Housing Local Government (196

 

“The person at risk should have an opportunity to comment on materials being

considered by the decision maker and to contradict them”.

 

Wiseman v Borneman (1971)

Lord Morris

 

“I feel bound to express my prima facie dislike of a situation in which the tribunal has before it a document (which might contain both facts and arguments) which was calculated to influence the tribunal but which has not been seen by a party who will be affected by the tribunal’s decision”

 

Lord Wilberforce

 

“The natural aversion against allowing a decision to be made on the basis of material he has not seen”

 

R v London Borough of Camden ex parte Paddock (1995)

Justice Sedley

 

“The principle that a decision making body should not see relevant to giving those affected the chance to comment on it and if they wish, to contravert it is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is the duty lying upon everyone who decides anything.”

 

 

 

13) Right to sufficient information

 

Bushell v Secretary of State for the Environment (1981)

Lord Diplock

 

“Fairness requires that the objector ......... be given sufficient information about the reasons relied on by the Department as justifing the draft scheme to enable them to challenge the accuracy of any facts and the validity of any arguments upon which the departmental reasons are based”

 

14 ) Right to cross-examine

 

Osgood v Nelson (1872)

Baron Martin

 

There can be no doubt my Lords that the Courts of Law in this country, would take care that any proceeding in this country were conducted in a proper manner; that the person proposed who was to be removed should have every opportunity of cross-examining the witnesses brought forward against him, or otherwise opposing the case up against him; that he should have the power of calling witnesses to prove his own case; and he should have every possible opportunity which a person can have, according to the law and constitution of this country, of defending himself and of establishing that he is not liable to amotion”

 

Bushell v Secretary of State for the Environment (1981)

Lord Edmond-Davies

 

“There is a massive body of accepted decisions establishing that natural justice

requires that a party be given an opportunity of challenging by cross-examination witnesses called by another party on relevant issues.”

 

15) Right to legitimate expectation

 

Council of Civil Service Unions v Ministry of the Civil Service (1985)

Lord Roskill

 

“The principle (of legitimate expectation) may (include) .......... an expectation of being allowed to undertake representations especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure.”

 

R v Secretary of State for The Home Department ex parte Ahmed (1999)

Lord Justice Hobhouse

 

“The principle of legitimate expectation and English law is a principle of fairness in the decision making process.................”

 

 

16) Duty not to adopt an unduly rigid policy

 

R v Secretary of State for the Enviroment ex p.Brent London Borough Council (1982)

 

“(The Minister is) entitled to have well in mind his policy. To this extent the

reference to keep an open mind does not mean an empty mind. This mind must be kept ajar”

 

R v Hampshire County Council ex parte W (1994)

Justice Sedley

 

“What is required by the law is that, without falling into arbitrariness, decision makers must remember that policies are means of securing a consistent approach to individual cases, each of which is likely to differ from others. Each case must be considered, therefore, in the light of the policy, but not so that the policy automatically determines the outcome”.

 

R v Ministry for Agriculture Fisheries and Food ex p Hamble Fisheries(Off shore) Ltd (1995) Justice Sedley

 

“In describing the two conflicting imperatives of public law “the first is that while a policy may be adopted for the exercise of a discretion it must not be applied with rigidity which excludes consideration of possible departure on individual cases.............., the second is that a discretionary public law power must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it............. the line between individual consideration and inconsistency, slender enough in theory, can be imperceptible in practice”

 

17) Duty to reconsider where an important error of fact is made known

 

R v Newham London Borough Council ex parte Begum (1996)

 

“the decision cried out for review when the error, on so important a matter, was drawn to the council’s attention by the claimant’s solicitors ............ A failure to reconsider the decision in these circumstances would in my judgement have been unlawful.”

 

1 Duty not to be irrational

 

Bromley and London Borough Council v Greater London Council (1983)

Lord Diplock

 

“Decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached”.

 

Council of Civil Service Unions v Minister for the Civil Service (1985)

Lord Diplock

 

“By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness ............. it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

 

19) Right for the procedural process not to effect an unfair conclusion

 

Mahon v Air New Zealand Ltd (1984) - referring to the rule of natural justice,

Lord Diplock

 

“that the decision to make the finding must be based on some material which tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically

self-contradictory”.

[johnnymitch]

subscribing!