Hidden Hearing Ltd, R (on the application of) v Hearing Aid Council

Judicial review is an inappropriate vehicle for obtaining an advisory ruling on the limits of a non-statutory, non-binding guidance note where the wording is qualified and the relevant boundary is fact-sensitive. To obtain relief, a claimant must show that the challenged guidance is manifestly incorrect on any proper factual basis. A statement that an activity may constitute dispensing will not ordinarily satisfy that threshold, particularly where binding professional regulations already include the activity within dispensing and the guidance expressly refers to the statutory and regulatory definitions. The court should avoid deciding abstract grey areas without established facts or proper consultation.

Hidden Hearing Ltd sought judicial review of guidance issued by the Hearing Aid Council concerning the meaning of dispensing hearing aids. The guidance stated that dispensing could include clinical and commercial practices, hearing-aid fitting and post-fitting rehabilitation work, while qualifying the statement by referring to definitions in law and the Council’s regulations.

The claimant argued that section 14 of the Hearing Aid Council Act 1968 confined dispensing to oral negotiations directed towards supplying a hearing aid, so that fitting and post-fitting work occurred too late. The Council relied on consumer protection, the regulatory scheme and the non-binding character of the guidance. The central issue was whether the guidance was sufficiently manifestly incorrect to justify quashing or withdrawal.

1. Application refused. The court refused to quash or require withdrawal of the guidance note.
2. Because the guidance was non-statutory and non-binding, and used the qualified word “may”, the claimant had to show that fitting hearing aids and post-fitting rehabilitation work could not form part of dispensing. The court would not decide the issue by reference to general hypothetical circumstances where the facts had not been investigated and grey areas were accepted.
3. The court accepted that the general purpose of the Hearing Aid Council Act 1968 was consumer protection in a health context. That purpose did not, however, resolve the precise statutory definition, particularly because contravention could lead to prosecution.
4. Although the ordinary medical meaning of dispensing and the wording of section 14 might support a broader analysis, the court was hesitant to transfer the meaning of “supply” from another statutory context. The words “with a view to effecting the supply” might extend beyond negotiations completed before physical supply, and fitting or post-fitting rehabilitation might therefore constitute dispensing. The court expressly declined to reach a concluded view without established facts.
5. Rule 27 of the Code of Trade Practices, made under section 1(3) of the Act and having binding effect, had included hearing-aid fitting within dispensing for many years. In that context, and because the guidance stated that dispensing was defined by law and regulation, its reference to fitting was not manifestly incorrect.
6. The claimant likewise failed to show that the reference to post-fitting rehabilitation work was manifestly incorrect. The possibility that such work might be connected with a further supply demonstrated why a prescriptive conclusion would be inappropriate.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.