[2024] UKUT 330 (AAC)

to ask ourselves whether the DBS’s decision was unlawfully irrational or unreasonable; if so then we should substitute our own decision; and if not,

to ask ourselves whether the DBS had properly addressed its mind to the question of proportionality i.e. followed lawful process; if not then we should find a mistake of law and remit to DBS; and if so,

to ask ourselves whether there was anything unusual such that even though the DBS had rationally and properly considered proportionality the decision was nevertheless disproportionate. If so then we should find a mistake of law, and if not then the decision of DBS should be confirmed.

Importing a test of irrationality into the test of proportionality, as the DBS invites us to do as a first step, risks complicating rather than simplifying the task of the Upper Tribunal when considering proportionality. Irrationality or unreasonableness is a different concept to proportionality, as emphasised in Dalston Projects. A decision can theoretically be irrational but proportionate, or, conversely, rational but disproportionate. If the DBS considers proportionality, and reaches a decision in a way which is not unlawfully irrational then it is highly likely that the Upper Tribunal, giving significant weight to that conclusion as it must, will agree with the DBS - but that is not necessarily so (as expounded in Miss Behavin’.) Plainly in the course of determining proportionality and giving weight to the DBS’s decision, the Upper Tribunal will closely examine the DBS’s conclusions, rationale and reasoning. However, we do not agree with DBS’s submission that a formal determination about unlawful irrationality should be a step in our process for determining proportionality.

Similarly, in our view, importing a question of whether the DBS has properly addressed its mind to proportionality, as the DBS invites us to do as a second step, also risks complicating the Upper Tribunal’s task. There is a distinction to be drawn between challenges about Convention rights (‘the decision-maker made an error of law because it made a decision which did not balance my rights against community interests’) and procedural challenges (‘the decision-maker made an error of law because it did not take into account relevant material, or took into account irrelevant material’ etc), a distinction emphasised in Miss Behavin’ and repeated in Dalston Projects. That is not to say that consideration of the DBS’s procedures are irrelevant to challenges about proportionality. In Miss Behavin’, in the context of a challenge about Convention rights, it was observed that the views of the local authority would be bound to carry less weight where they had made no attempt to address the question of proportionality (at [37]). It may be useful, therefore, for the Upper Tribunal, when considering proportionality to have regard to DBS’s decision-making process as that may affect the degree of weight which the Upper Tribunal places on the DBS’s decision. We do not agree with DBS’s submission that a formal determination about whether DBS’s procedures was so flawed as to be unlawful should be a requisite step in the decision-making process.

Finally, importing consideration of ‘unusualness’ into proportionality, as the DBS invites us to do as a third step, also risks complicating the Upper Tribunal’s task. DBS relied on a passage in Miss Behavin’, quoted in ISA v SB :‘If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights’. That observation was plainly not intended to create any sort of route map for reaching a decision on proportionality. Indeed, in ISA v SB passages from Miss Behavin’ including this one were said to be ‘illustrative of the need to give appropriate weight to the decision of a body charge by statute with a task of expert evaluation’. It is a useful illustration to bear in mind, but we do not elevate it into a formal step in the decision-making process.

‘Where, as here, the DBS has carefully and thoughtfully sought to strike a fair balance between the rights of the individual and the rights of the community; its decision should not be interfered with by the UT, even if the UT would have come to a different view (DBS v Harvey [2013] EWCA Civ 180, per Treacy LJ @ paras 37 to 39).’