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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 914
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IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Elias)
Tuesday, 22nd May 2001
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE JONATHAN PARKER
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW|
|DEPARTMENT OF EDUCATION & EMPLOYMENT|
|EX PARTE AMRAF TRAINING PLC|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
(Instructed by Messrs Palmers, 19 Town Square, Basildon, Essex, SS14 1BD
appeared on behalf of the Appellant.
MR CLIVE LEWIS (Instructed by Treasury Solicitor, Queen Anne's Chambers, 18 Broadway, London SW1H 9JS)
appeared on behalf of the Respondent.
Crown Copyright ©
Tuesday, 22nd May 2001
"1.The applicant in this case is a public company involved in the provision of training to individuals. Since the early 1990s it has trained IT and computer employees at all levels. It advertises in the press for largely self-finding persons who wish to change career and move into computer software and hardware skills. The applicant has a number of offices nationwide. It employs approximately a hundred people full-time in those various offices.
2.In the 1999 budget, the Chancellor of the Exchequer announced a training scheme called `Individual Learning Accounts' which was designed to provide incentives for people to learn other skills than were required for their employment. In particular, there was some emphasis put on the desire to obtain computer and mathematical skills.
3.A range of discounts and incentives were provided for individuals. First, for most types of training a 20 per cent discount of courses was provided with a ceiling of £500 as to course costs. This meant, of course, that the maximum government contribution would then be £100. Second, certain courses attracted a discount of 80 per cent. These were directed towards a limited range of courses providing training in IT and mathematics. No ceiling was stated in respect of courses in that category. Third, as a particular incentive to individuals taking up these opportunities, the first 1 million applicants were to receive an extra reduction of £150 per course, to be paid by the course provider. Fourth, certain tax incentives were also provided.
4.The structure of the legal arrangements implementing this policy is contained in the Individual Learning Accounts (England) Regulations 2000, made pursuant to the Learning and Skills Act 2000. One of the courses qualifying for the 80 per cent discount was what is called the European Computer Driving Licence (ECDL). This course provides an European-wide qualification and is administered in each Member State by a particular body, which in the case of the United Kingdom is the British Computer Society. The scheme operates essentially in this way: individuals register as learning account holders. This then entitles them to take the benefits of the discounts on offer.
5.Learning providers are also registered with the Individual Learning Account Centre. This is an administrative process which enables providers to be repaid the incentives which they have offered as discounts to learners who are Individual Learning Account holders. It means that the system is kept simple for the Individual Learning Account holder himself.
6.Learning providers are asked to satisfy very few criteria before they are entitled to be registered. They must provide certain administrative details, such as the name of the organisation, contact names and bank account details, and in addition they must confirm that they have in place the appropriate public insurance liability. They must also satisfy certain health and safety requirements. These requirements are referred to in the document as `the terms and conditions' applying to providers. It will be seen that they do not include any criteria relating to the costs of the courses provided.
7.The applicant in this case sought to register as a course provider and was sent a pack by the Individual Learning Accounts Centre (`ILAC'), which is bases in Darlington, under cover of an undated letter in late June 2000. The letter indicated a query line which could be used for providers to ask questions and receive guidance. The applicant met the relevant terms and conditions and signed a declaration through the appropriate company officer. On 21st July, the ILAC informed the applicant that it had successfully registered. The letter also indicated a query line which was available for individuals who wanted to ring for an information pack."
"You are registered with the Individual Learning Account Centre to offer discounts to holders of Individual Learning Accounts. It has come to our attention that you are advertising learning which qualifies for an 80% discount - the European Computer Driving Licence (ECDL) - at a cost which seems to be higher than would normally be the case.
Individual Learning Accounts are aimed at encouraging people to undertake more learning and to take more responsibility for their learning. I am concerned that, by charging at levels that may be inappropriate, individuals may be discouraged from learning or will not continue to learn if they perceive the costs are high. I am also concerned that the scope of the ECDL you offer is appropriate for the 80% discount.
I would like you to provide me in writing, and no later than Monday 4 September 2000, your reasons for charging £4,000 for the ECDL. If I do not receive this from you or I am not satisfied with the reasons you are giving, I may ask the Individual Learning Account Centre to remove Amraf Training Plc from the registered list of learning providers with immediate effect. This means that you will not be able to offer your learning to Individual Learning Account holders or be able to reclaim any discounts."
"17.I heard nothing from Ms Pierce until she telephoned on 31st August and left a message for me to return her call. This I did on the same day. Ms Pierce advised me that she had received the course material and had considered my letter. There was one point on which she required clarification from me in writing which was whether the Applicant would charge £4,000.00 for the ECDL course to an individual who did not qualify for the 80% discount."
"There then followed a protracted conversation. Ms Pierce confirmed that the Respondent was concerned with the pricing of the Applicant's course. However during the course of the discussion she did admit that the Applicant was not in breach of any of the terms and conditions for registration.... . The conversation ended with Ms Pierce confirming that she would revert to me in the event of there being any difficulties.
18.I heard nothing from Ms Pierce and on the 4th September 2000 the scheme commenced operating. I would have thought and assumed that had there been a problem Ms Pierce would have telephoned me."
"As you know, I had some concerns about the levels of charging for the ECDL course offered by Amraf Training Ltd to individual Learning Account holders £4,000 (including VAT) seemed high for 7 modules of relatively low level IT training together with the other elements of the ECDL.
I have given all that you say in your letters careful consideration. Even accepting that the time and money which Amraf Training plc has devoted to the development of its ECDL course makes it necessary for the company to charge a fee of £4,000 that does not mean that the training represents value for money. On the contrary, it is my conclusion that the training does not offer value for the money which the Government provides by way of the discounts afforded to Individual Learning Account holders.
As you know from the correspondence sent at the time of registration, Individual Learning Accounts are aimed at encouraging more individuals to do more learning. That intention is frustrated if substantial sums available under Individual Learning Accounts are utilised inefficiently to support training relatively few people at excessively high cost.
I have therefore asked the Individual Learning Account Centre to remove Amraf Training Ltd from the list of registered providers with immediate effect. The Department will honour eligible discounts already properly allowed by you to individuals who have booked their learning prior to the date of this letter. Although if the Department subsequently determines that the discounts have been applied irregularly, the Department may require repayment of the sums paid. In addition, the Department will be writing to you separately about the `Licence to Skill' program and the appropriateness of payment of the discounts on this package."
"I would also point out that it appears to me that there has been an element of victimisation of the Applicant. At paragraph 21 of his Affidavit of the 22nd September Mr Skinner points out that at least two other course providers are advertising their course on the Internet at £4,000, the same price as the Applicant's course. The newspaper advertisement which I have exhibited at page 59 of `JD1' also contains an advertisement midway down on the right hand side offering the ECDL at only £1,000.00. In fact I am aware that the provider is actually Simply Training. An old employee of the Applicant works for Simply Training. I telephoned our ex-employee who advised me that the £1,000.00 was actually the amount of money paid by the student. Accordingly, together with the 80% funding from the Government, Simply Training are in fact charging £5,000.00 for the ECDL course. I note the date of the advertisement in the Evening Standard is the 20th September the date upon which the Respondent de-registered the Applicant. I would ask and am aware that my solicitors have asked the Treasury Solicitor why it is that the Respondent has chosen to pick on only the Applicant. To date the Respondent and its solicitors have been unable to provide an answer."
"Further or in the alternative, the Respondent by selecting to instruct ILAC to remove the applicant from the list of Registered Providers but not Tech Connect and CCNA" [I interpose, those were the two providers referred to earlier in the grounds] "and others has acted selectively and in a biased manner."
"Amraf Training plc were the first learning provider who came to the attention of the Department as offering a course, which, in the Department's view, did not offer value for money. More recently, the Department has become aware of 3 other learning providers whose charge for an ECDL course seems very high. In each case the Department has written to the provider concerned asking for an explanation of the high charges and saying that, subject to the explanations given, it is minded to remove those providers from the register for the same reasons that apply in this case."
"54.That still leaves the victimisation argument. The applicant says that it has been treated unfairly because others in a similar position have been permitted to remain on the register. The respondent says that it is acting consistently and fairly because it is currently investigating other cases where it has come to its attention that the fee for courses has been pitched too high. Some of these instances were drawn to the attention of the respondent, by the applicant, when it obtained leave for permission for judicial review on 26th September. The companies concerned have been given the opportunity to make representation about their courses, just as the applicant was.
55.In view of the explanation given by the Department, I do not believe that the applicant has been victimised as alleged. The power given to the Secretary of State to determine the amount of grant is set out in Regulation 7 of the Individual Learning Accounts (England) Regulations 2000. It is in very broad terms and, in my judgment, it was lawful for the subsidy to be removed from a particular course, as opposed to imposing a blanket ceiling. Indeed, I do not understand Miss Appleby to be arguing to the contrary. Other companies are being investigated as and when the Department has become aware that they might be charging too much for their courses. It is true that the information about the cost of other courses was available to the Department and it would have been possible for it to have followed up these other companies more speedily than it has.
56.But in my judgment, even if it could be said that the Department was negligent in not investigating those companies earlier (a matter about which I express no view) that does not convert what would otherwise be the fair handling of the applicant into unfair treatment. Miss Appleby suggested that the reason why the applicant has been picked out for special treatment was because it had successfully recruited many students for the particular course and, as a consequence, the cost to the Department was high. I confess that even if that were so, it seems to me to be a perfectly rational reason for dealing with the position of the applicant as a matter of some urgency and before other companies were considered."
"... in my judgment, it was lawful for the subsidy to be removed from a particular course, as opposed to imposing a blanket ceiling. Indeed, I do not understand Miss Appleby to be arguing to the contrary. Other companies are being investigated as and when the Department has become aware that they might be charging too much for their courses. It is true that the information about the cost of other courses was available to the Department and it would have been possible for it to have followed up these other companies more speedily than it has.
But in my judgment, even if it could be said that the Department was negligent in not investigating those companies earlier (a matter about which I express no view) that does not convert what would otherwise be the fair handling of the applicant into unfair treatment."