There are now numerous Covid19-driven grant schemes in existence. These are intended to provide financial support to organisations operating in the different businesses sectors. This is obviously good news.
Increasingly, though, clients are experiencing difficulties both in terms of (a) understanding how to complete the grant applications and (b) challenging or successfully complaining about the grant decisions being made by the public bodies that are administering the schemes.
The fact that the new grant scheme documentation is sometimes less than entirely clear is perhaps unsurprising given the speed with which the schemes were devised and the inevitable rush to put them on the website. A Government grant scheme would normally take many months of detailed policy analysis, consultation, planning, modelling, detailed, careful drafting of the scheme documentation and perhaps a phased implementation. There has been no such luxury for government departments this time. In some cases it shows.
Some of the signs of stress in the schemes are:
1 unclear or changing eligibility criteria;
2 unclear (or constantly changing) guidance on how to apply;
3 an unclear rationale for some of the eligibility criteria and
4 timescales that applicants find it hard to meet.
Whilst the last thing that applicants want to think about is a potential legal challenge to a grant-related decision they don’t like, the fact is that having an understanding of the rules that government has to follow can help you frame a compelling complaint letter and increase your chances of a successful outcome. Of course, you can’t force them to award you a grant, but you can in theory, and often in practice, force them to handle your application properly.
Very often applicants find that the public body has not followed its own published process. This would give you one potential ground for making a complaint.
Alternatively, the concern might be that the scheme administrator has taken an unduly narrow line when applying the eligibility criteria, excluding an applicant on a purely technical ground and without giving them an opportunity to correct it.
Some of the schemes have a ‘complaints’ process for applicants to follow if they believe they have been treated ‘unfairly’. If so, that will usually be the best route to take (at least initially) and only once you’ve exhausted might you want to explore the possibility of launching judicial review proceedings. That’s a big step of course, and one that can be expensive but it is at least in your back pocket as a potential means of persuading the body of the need for them to revisit their decision. Judicial review, as well as being costly, can only be brought on specific grounds namely that the decision (eg to exclude an application on the basis of ineligibility) was made illegally, irrationally or by deviating from the correct procedure.
A well-constructed complaint letter can often persuade the public body that they have inadvertently treated an applicant unfairly and encourage them to change their decision without the need to go anywhere near issuing judicial review proceedings.
Understanding the rules a public body has to follow (and politely letting them know you understand them) can make all the difference when you are navigating these turbulent waters.
Tim Heywood, FRSA is a Partner at Gunnercooke llp. A former senior Whitehall lawyer experienced in the administration of grant schemes, he advises clients on all stages of their grant applications.
This blog is for information purposes only. It is not, and must not be relied upon as, legal advice. You should always seek legal advice on your specific circumstances.
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