Farrell, R (on the application of) v Cheshire County Council (Rev 1)

Procedural fairness requires a public authority deciding an application to identify and communicate the criteria it will apply, where those criteria materially affect the decision. The requirements of natural justice must be tailored to the particular administrative decision. An appeal process does not cure the unfairness caused by withholding the decision-making criteria. The criteria should be transparent and, where appropriate, published for applicants. A decision reached without giving the applicant that information may be quashed, even where the authority considers that the same result may follow after lawful reconsideration.

John Farrell sought judicial review of Cheshire County Council’s refusal to issue him with a badge permitting him to drive buses operated or contracted by the council. The badge followed vetting because the drivers worked with children. The council relied on his previous disciplinary history but had never notified him of the criteria governing badge applications.

The claimant alleged procedural unfairness, failure to provide an oral hearing and irrationality. The latter two grounds were treated as extensions of the principal complaint. Permission to apply was granted by Cranston J on 21 April 2008. The central issue was whether the council could lawfully determine the application without first communicating the criteria it would apply.

1. The application for judicial review was allowed. The council’s decision, communicated by letter dated 9 July 2007, was quashed.
2. The principles of natural justice and procedural fairness must be adapted to the particular administrative decision. In an application process, fairness may require the authority to make the governing criteria transparent and to communicate or publish them when applications are invited. The court applied the approach in Quark Fishing, [2001] EWHC Admin 1174, including the Court of Appeal’s approval of that approach.
3. The council accepted that it had never provided Mr Farrell with the criteria. His provision of material addressing his employment history did not establish that he knew the criteria. Without knowing the matters that would govern the decision, he could not know what further evidence or representations might be relevant.
4. The existence of an appeal procedure did not, by itself, cure the unfairness. An appeal is not an adequate substitute for informing an applicant of the criteria on which the original decision will be made.
5. The council or its successor authority was required to formulate and publish criteria for deciding applications for Cheshire badges, or their successor equivalent. No timetable was imposed, having regard to the impending reorganisation of Cheshire County Council. The claimant was awarded his costs.

Permission to apply for judicial review was granted at an oral hearing before Cranston J on 21 April 2008. No appeal or other appellate stage is stated in the judgment.