Intro to Administrative Justice (L14) Flashcards
How successful has judicial review actually been?
Judicial review is an elite remedy.
It is essential to settle legal controversies and to the development of administrative law. But it is perhaps less important as a remedy for righting individual injustices.
That said, research has shown that judicial review claims can achieve success at various stages of the process: high levels of settlement in the “shadow of the law” at the pre-action and permission stages.
- PLP, Dynamics of Judicial Review Litigation 2009.
What are the barriers to administrative justice, and what does this result in?
People don’t know they have experienced a problem (naming).
People don’t know who to blame for the problem (blaming).
People don’t know how to pursue a claim to sort the problem out (claiming).
Result: many potential disputes never emerge as “legal problems”.
How can the quality of first instance decision-making be analysed?
Difficult to access but evidence of continually high levels of allowed appeals.
Criticism of social security and immigration decision-making by senior judges.
Common problems include:
- Not following relevant policies and procedures;
- Incomplete collection of relevant evidence;
- The failure to assess the evidence properly;
- Factual errors;
- Not applying relevant legal rules;
- Not giving proper reasons.
What is the internal process of administrative review?
“Administrative review is the process by which an individual whose claim or application that has been refused applies to the relevant public authority for a review of that decision. It is ‘administrative’ in the sense that the government department or public body will review its own decision — for instance, to identify any case-working error or to consider additional evidence submitted by the individual. Administrative review has increasingly been introduced as either an intermediate stage in the dispute process before going to a tribunal or as a substitute for tribunals.”
What are the benefits of administrative review?
It is quicker, cheaper, and more efficient than tribunal.
What are the downsides of administrative review?
Appeals are decided by an independent body through fair procedures, typically oral hearings. Reviews are decided by an official and decided on the papers.
Whereas appeals involve the tribunal substituting its own decision, reviews are typically limited to considering whether the initial decision was incorrect.
The compulsory nature of administrative review discourages many people from pursuing their case to a tribunal.
The abolition of appeal rights and replacement by administrative review – as has happened in immigration – will not only curtail remedies against and oversight of government, but will make the Home Office judge in its own cause.
What is the internal process of complaints?
Complaints involve the way a service was provided or a decision was taken rather than a decision itself.
However, the standard definition of a complaint is very broad: “A complaint is an expression of dissatisfaction by one or more members of the public about an organisation’s action or lack of action, or about the standard of service provided by or on behalf of the organisation”.
In some contexts (e.g. health or social care) complaints procedures are statutory or supported by statutory guidance.
In most areas, complaints procedures are a matter for the body concerned – diversity and complexity.
For Scottish devolved public services, the ombudsman is responsible for designing Model Complaint Handling Procedures.
Why is administrative justice important?
The importance of decisions i.e. in terms of consequences for the citizen.
The status of many claims as legal entitlements.
The volume of decisions made by public authorities which affects citizens’ legal rights and interests.
A crucible for the relationship between citizen and state i.e. touchpoint where our relationship with the state is realised.
The distinctive aspects of the administrative process subject to review.
