The High Court dismissed a serving soldier’s judicial review challenge to his removal from a non-commissioned officer (NCO) training course after the Defence Forces found he was over its age limit.
The judgment, delivered by Mr Justice Cross on 16 May 2014, concerned a decision made on 2 November 2012. The applicant had been selected for the course, passed a medical examination and begun training at Casement Aerodrome, Baldonnell. He was sent back to his unit at McKee Barracks after being told that he was too old to continue.
The applicant had served for about 23 years and said he was distressed by his removal and had suffered lost earnings. He argued that, having been accepted onto the course, he had a legitimate expectation that he would be allowed to finish it. He also challenged the age criteria and sought orders including an opportunity to attend a future course and damages. At the hearing, the equality claim was not pursued.
The respondents said his acceptance was an administrative error. They maintained that he did not meet the course’s age requirement, that the age limit reflected a reasonable policy, and that he should have known about it. Evidence from a medical officer explained the policy by reference to concerns about physical capacity and safety as people age.
The judge accepted the applicant’s evidence that he did not know of an absolute age limit of 40. He found that the application code indicating the limit was unclear, and that the respondents had also failed to notice the applicant’s ineligibility before admitting him. Earlier cases in which people over 40 completed the course did not establish an exception, the judge said; he considered those admissions to have resulted from similar administrative errors.
However, the court found that the mistake did not create a legitimate expectation that the applicant could continue. His time preparing for and attending the course did not, in the judge’s view, establish such an expectation or legal detriment. The judge also concluded that, even if an expectation had arisen, it was not legitimate in light of the eligibility criteria and the Defence Forces’ age-limit policy.
The court further found no breach of fair procedures or natural justice. The applicant had been placed on a course for which he did not qualify and, the judge held, had no right to be heard before being returned to his unit. The case was dismissed. The judgment did not grant the requested relief.