Knot Builders Limited, R (on the application of) v Construction Industry Training Board

A public authority applying a published discretionary policy must remain willing to consider departure from it. An express request is not always necessary where the application implicitly seeks a waiver. The court will not substitute its own view on whether departure is merited.

A public authority must determine an application according to the policy made available to the affected person, subject to any lawful and adequately notified criteria. For construction training grants, eligibility required the applicant to identify the need for training, organise it and accept its cost. Generic contractual responsibility for health and safety, and payment of operatives’ ordinary remuneration, did not satisfy those requirements.

The claimant, formerly Hudson Contract Services Ltd, challenged decisions of the Construction Industry Training Board concerning grants claimed for training provided during the 2015/16, 2016/17 and 2017/18 grant years. The claimant had been assessed to construction industry levy for 2015/16, but the later assessments were withdrawn after a restructuring meant that it was not liable for those periods.

The claimant alleged unlawful fettering of discretion, breach of legitimate expectation, application of unpublished criteria and irrational unequal treatment. The central issues were whether the registration restriction should have been waived, whether the claimant was entitled to determination under the published grant policies, whether the tripartite training requirement was satisfied, and whether relief should be refused under Senior Courts Act 1981, section 31.

1. Ground one succeeded in part. The 2015/16 policy clearly restricted newly registered employers from claiming the relevant grants until 1 August 2016. The restriction turned on registration date, not entry into the industry. However, the claimant’s retrospective grant application implicitly requested waiver of that condition. The Defendant was therefore required to consider rationally whether to depart from the policy. The court was not to decide the merits of that departure.
2. The Industrial Training Act 1982 and the 2015 Levy Order did not impose a general proactive duty on the Defendant to identify and register every employer in the industry. The statutory provisions concerned assessment of levy and did not create entitlement to grant.
3. The alleged assurance by counsel in earlier proceedings did not amount to a clear, unambiguous and unqualified representation that the claimant would receive grant. At most, it indicated that the business model did not automatically prevent an application. The legitimate-expectation claim based on that assurance therefore failed.
4. Ground two failed. Although the tripartite requirement was omitted from the express wording of the 2015/16 and 2016/17 policies, it had been applied consistently, had been notified to the claimant before its retrospective application was determined, and was reflected in the Training and Development Plan Rules. The claimant’s contracts did not identify particular training needs or organise training. Payment of operatives’ ordinary remuneration did not mean that the claimant accepted the financial cost of training. The Defendant was entitled to conclude that the criteria were not met.
5. Ground three failed. The treatment of alleged comparators was materially different, and the Defendant’s refusal of supplementary payment was not irrational.
6. Relief was refused for categories (b), (c), (e) and (f) of the 2015/16 claim because it was highly likely that the outcome would have been the same under the lawful eligibility criteria. Decision One was quashed only for categories (a)(i) and (d), which were remitted for fresh consideration including whether the registration condition should be waived. Decision Two stood.

First-instance judicial review decision. The judgment records earlier litigation concerning levy liability, including a Court of Appeal decision reported at [2020] ICR 1344, but the present claim was determined by the High Court at first instance.