Lai, R (on the application of) v Secretary of State for Defence

Service accommodation policies must be read as a whole. A general policy obligation to provide or enable accommodation may be subject to defined exceptions. Wording permitting the Ministry of Defence to authorise substitute accommodation concerns the available options, not a discretion to provide no accommodation at all.

Under section 180 of the Army Act 1955, “wronged” has a broad scope. The decision-maker may interpret policy purposively and grant redress where its application causes significant unfairness or unreasonableness. Judicial review remains limited to legal error, irrationality, failure to consider relevant matters or reliance on irrelevant matters. The claim failed because the Army Board had rationally concluded that the claimant was not unfairly treated.

The claimant, a serving Army brigadier, challenged the Army Board’s dismissal of his complaint under section 180 of the Army Act 1955. He had been denied substitute service single accommodation because he owned a flat within the prescribed commuting distance of his duty station.

He argued that the accommodation policy imposed a fundamental obligation to provide either service accommodation or substitute accommodation, and that applying the exclusion to an investment property was unfair. The Army Board’s decision was referred to and upheld by Her Majesty the Queen. The central issues were the proper interpretation of the accommodation policies and whether the Board had lawfully concluded that the claimant had not been wronged.

1. The claim for judicial review was dismissed. The court was not hearing an appeal on the merits. It could intervene only for misinterpretation of the relevant policies or section 180, irrationality, failure to consider relevant matters, reliance on irrelevant matters, or legally inadequate reasons.

2. The Tri Service Accommodation Regulations were policies, not statutory instruments, and had to be construed as a whole. Paragraph 0101 stated a general and fundamental obligation on the Ministry of Defence to provide or enable satisfactory accommodation for serving personnel. That obligation could be met through accommodation on or near the base, private-sector accommodation, or assistance with private accommodation.

3. The words “may authorise” in the substitute accommodation provisions referred to the available accommodation options. They did not confer a discretion to provide no accommodation. Nevertheless, the general obligation was subject to defined exceptions within the policy framework. Paragraph 5(d) of Annex C to Chapter 8 was such an exception and was not unlawful merely because it existed.

4. The exception was not ambiguous and, on its face, applied to the claimant’s property. The Board was entitled to interpret and apply the policy purposively. A person was “wronged” for section 180 purposes if treated significantly unfairly or unreasonably through the interpretation or application of policy, but the assessment of fairness was primarily for the Board, whose expertise and experience required substantial weight.

5. The court accepted that applying the exception to investment property could operate arbitrarily and might cause real financial loss. The Board had nevertheless considered the underlying fairness issue. It was entitled to rely on the claimant’s prior knowledge of the exclusion, his opportunity to withdraw and invest elsewhere, the assistance he received with legal costs, the prospect of capital gain, and his earlier willingness to occupy the property.

6. The Board’s conclusion that the claimant had not been treated unfairly was rational and involved no legal error. The claim was dismissed.

The claimant challenged the Army Board’s decision of 30 April 2008. The decision had been referred to and upheld by Her Majesty the Queen on 1 April 2009. The Administrative Court dismissed the judicial review claim.