Public body delays taking decision - Remedies?

[VGkK]

Hello!

This is my first post here. My question is not really related to benefits as such, yet in the absence of a general Administrative Law forum, this is the best I could find.

Having been trained in Administrative Law on the Continent, I have been struck by the differences between Civil and Common Law Administrative Law practice.

Essentially, I wonder what remedies are available to a citizen in case of a public body refusing to take a decision, e.g. an FOI decision. On the Continent, most legal systems would in such a situation, i.e. a public body refusing or delaying to take a decision, allow for an accelerated appeal to the Administrative Court which would usually be dealt with without a hearing. The court will make a decision within two weeks and issue an enforceable title, ordering the public body to take a decision within two weeks after the court's decision.

All I could find with regards to English law is that the citizen can request the public body "reconsider" its failure to take a decision. To me, this does not have any teeth whatsoever, since the public body could then also decide to delay the "reconsideration".

Anyone have an idea as to whether it is possible to appeal to the administrative tribunals if a public body refuses or delays taking a decision?

Many thanks in advance!

[stevemLS]

Re: Public body delays taking decision - Remedies?

In English law where a public body refuses to carry out a statutory duty (and that may amount to not taking a decision) it is possible to apply to the Administrative Court for a mandatory injunction requiring them to do so (used to be called an Order of Mandamus).

There is nothing like such a clearly defined timetable though and such a case may take many months.

If it is an FOI decision you are thinking about there is a whole separate framework to enforce the Act and ensure public authorities comply with their obligations (complaint to ICO/First Tier Tribunal/Upper Tribunal) which is likely to be quicker and much less expensive.

[VGkK]

Re: Public body delays taking decision - Remedies?

I understand that cases going to the Administrative Court usually cost £10k plus in fees, when an appeal to a Dutch Administrative Court to force a public body to take a decision would cost EUR160 in court fees plus EUR78 in bailiff fees. Bang!

The Administrative Court may thus not be the venue of choice, except for oligarchs.

Am I correct in assuming that it is essential to research what the lex specialis, e.g. the FOIA 2000, says about the right to appeal? Thus, assuming that the ICO is the first instance in the appeals process, the ICO would also be competent to hear an appeal in case of no decision being taken (in Dutch legalese called "fictitious refusal")? The Administrative Court would then be the venue of last resort.

To illustrate this, a case for the (fictitious) refusal to take a planning decision, should be brought to the Planning Inspectorate?

[stevemLS]

Re: Public body delays taking decision - Remedies?

£10k is not an unreasonable starting estimate for a case in the Administrative Court.

I suspect the Dutch Court exercises a different jurisdiction.

And yes, many different mechanisms exist depending on who has failed to do what. So, for your planning decision, if the planning authority fails to take a decision with (from memory) 8 weeks, the applicant can refer the matter to the Secretary of State (in practice the Planning Inspectorate) for determination.

Don't ever expect English law to be wholly logical!

[VGkK]

Re: Public body delays taking decision - Remedies?

The Dutch Administrative Court is competent to only hear cases against decisions (and that concept is clearly defined in law). That does not mean that a little court shopping is not an option! In borderline cases, one can arbitrage between the Administrative Court and the Civil Courts depending upon which Court is likely to be more favourable.

By the way, court shopping is also an option for UK consumers: In case a consumer orders goods on the internet from another EU member state, the consumer can, using the European Small Claims Procedure, choose whether to sue the trader in the Small Claims Court or in the court of the member state in which the trader is based.

[stevemLS]

Re: Public body delays taking decision - Remedies?

Yes, you're right in a small number of cases, court selection is an option.

However, where legislation provides a specific route for appealing against decisions, the Administrative Court (which is a specialist Division of the High Court) would expect that route to be exhausted before a case was brought before it.