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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Judicial review, human rights and maladministration - overviewJudicial review
Judicial reviews are court proceedings that review the lawfulness of a decision or action made by a public body, and are as such a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
The court is not empowered to substitute a decision.
Judicial review can be made on the following types of decision:
decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of it
certain decisions of the immigration authorities and Immigration Appellate Authority
decisions of regulatory bodies
The Administrative Court can make the following findings:
a quashing order
a prohibiting order
a mandatory order
in specified circumstances, a declaration or an injunction, or an award of damages
During the pre-action stage claimants should write to the local authority identifying the issues in dispute and seek to avoid litigation through settlement or ADR.
Applications for permission to apply for judicial review are covered in CPR 54.5. Claimants should serve defendants within seven days of the date of issue and defendants should normally respond to that letter within 14 days. Sanctions may be imposed unless there are good reasons for not responding within that period.
The court will grant permission if there is an arguable case. On granting permission the court may make case management directions under CPR 54.10(1) for the progression of the case. Defendants have 35 days from service of the order granting permission to file and serve the grounds for contesting the claim and supporting evidence.
The Human Rights Act 1998 ratifies the European Convention on Human Rights and makes those rights enforceable in courts of England and Wales.
The human rights are:
art 2 - right to life
art 3 - prohibition of torture
art 4 - prohibition of slavery and forced labour
art 5 - right to liberty and security
art 6 - right to a fair trial
art 7 - no punishment without law
art 8 - right to respect for private and family life
art 9 - freedom of thought, conscience and religion
art 10 - freedom of expression
art 11 - freedom of association
art 12 - right to marry
art 14 - prohibition from discrimination
art 16 - restriction on political activities of aliens
art 17 - prohibition of abuse of rights
art 18 - limitation on use of restrictions on rights
First Protocol: art 1 - protection of property
First Protocol: art 2 - right to education
First Protocol: art 3 - right to free elections
Thirteenth Protocol: art 1 - abolition of the death penalty
There are three types of rights:
absolute rights such as arts 3, 4, 7 - these rights cannot be interfered with
limited rights, such as art 5 - there are certain limitations in explicit and finite circumstances
qualified rights, which include arts 8, 9, 10 and 11 and Protocol 1, arts 1 and 2 - interference with them is permissible only if what is done has basis in law, is done to secure a permissible aim set out in the relevant article and is necessary to fulfil a pressing social need, pursue a legitimate aim and be proportionate to the aims being pursued
The effect of the Human Rights Act 1998 on domestic UK law has been far from marginal, and has involved the courts in a much more active and intense scrutiny of the Executive than they had been required to do prior to October 2000. Existing legislation must be applied in a way that is compatible with the rights set out in the Act.
Public authorities have an obligation to treat people in accordance with their Convention rights. The human rights have a wide application in local authorities across the services provided, including the provision of care for vulnerable people, planning and licensing, and can be attached to judicial review process. A study in 2003 identified that just under half of all judicial review claims cited the Human Rights Act 1998 (Public Law Project (June 2003), The Impact of the Human Rights Act on Judicial Review).
While public authorities must ensure that their decision-making processes take into account individuals’ human rights (R (Robertson) v City of Wakefield MC  All ER (D) 243 (Nov) and K v Newham LBC  All ER (D) 252 (Feb)), the rights of one person often have to be balanced against the rights of others or against the needs of the broader community. Any restriction must be proportional to achieve the objective.
The Audit Commission has called for local authorities to develop a human rights culture including training for front line managers and checklists for policy makers.
Complaints of maladministration are made to the Ombudsman and may only be made by a member of the public. The complainant must claim to have suffered injustice.
The Ombudsman investigates alleged or apparent maladministration or service failure. The council will normally have had an opportunity to address the matter before the Ombudsman can investigate it.
Complaints must be made in writing, within 12 months from when the person aggrieved first became aware of the alleged maladministration/service failure.
The Ombudsman has the discretion to determine whether to initiate, continue or discontinue an investigation under the Local Government Act 1974.
Maladministration is not defined by statute but examples are:
failure to follow policy or procedure
failure to provide information
not giving reasons for a decision
The Ombudsman has the same powers as the High Court with respect to the attendance and examination of witnesses and the production of documents. The Ombudsman decides how the investigation should be conducted and can also appoint a mediator or other person to assist.
If the Ombudsman reports on maladministration or service failure, the report must be considered by the council concerned and the council must respond within three months.
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