When can you challenge public body decisions about policies?

Emma Vincent Miller

An introduction to public law

Public law governs the relationship between public bodies, such as central government or local government, and private individuals. Public bodies, including government ministers, must comply with the law and if they fail to do so this can be challenged by way of judicial review in the High Court.

What are policies?

Policies – sometimes called guidance or procedure – exist to guide decision makers, and can help private individuals to understand how a public body will approach their case.

By way of example, the Home Office has a policy governing how it allocates accommodation to destitute asylum seekers. Local authorities have policies concerning when they will award Discretionary Housing Payment or when they will impose charges for adult social care.

Policies are not law and as such do not bind public bodies, but issues relating to policies often arise in judicial review claims. Case law says that a policy should be followed by a decision maker, unless there is a good reason to depart from it.[1] If a policy has not been properly considered or has been wrongly applied by a decision maker, then this is a basis on which to seek judicial review of a decision.

Secret policies

Public bodies should make their policies publicly available, so private individuals know where they stand. This also helps ensure an individual has an opportunity to make meaningful representations before a decision is made about them. If policies are kept secret, the failure to publish the policy can be a cause of action in judicial review.[2]

Challenging policies

Policy documents themselves can also be challenged by way of judicial review, for example if a policy contravenes the public body’s legal duties under the Human Rights Act 1998 or the Equality Act 2010. If these cases are successful, the High Court can decide that a policy (or part of a policy) should be ‘quashed’, usually meaning it would need to be withdrawn or rewritten.

Until recently, policies could be challenged if there was an unacceptable risk they would lead a decision maker to act unlawfully. The scope for these sorts of challenges has reduced in the last few years, following Supreme Court cases.[3] In R (A) v SSHD [at 46] the Supreme Court clarified the three types of cases where a policy may now be found to be unlawful for misrepresenting the law:

“(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way…..; (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so ….:; and(iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that…”.

This narrows the scope for challenging the lawfulness of government policies.

The court in A nevertheless emphasised the important fact that if a public body has breached their legal duty and acted unfairly, regardless of whether the unfairness was produced by the application of a policy or not, then an individual is of course entitled to seek redress.

How can we help?

Osbornes Law are experienced in advising on judicial review matters including challenges to central and local government decision making, and issues relating to policies. If you have been treated unfairly by a public body and would like advice on whether judicial review is the appropriate remedy, you can contact us for specialist advice on 020 7485 8811.

[1] See R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

[2]R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

[3]R (A) v Secretary of State for the Home Department UKSC 2019/0065, R (BF (Eritrea)) v Secretary of State for the Home Department UKSC 2019/0147