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Delay as a ground for Judicial Review – what if a public body takes too long to make a decision?

Whereas civil claims are concerned with obtaining compensation, judicial review is the process of challenging the lawfulness of a decision made by a public body or, in some cases, a private body performing a public function. In a claim for judicial review, the Court will be concerned with reviewing the way a decision is made, rather than the substance of the decision itself and delivering a judgment as to what steps that body should or shouldn’t take so as to clarify the rights and obligations of the respective parties.

Claims for judicial review must ordinarily be brought before the Administrative Court “promptly” and “in any event, not later than 3 months after the grounds to make the claim first arose”. [1] This usually means within 3 months of the date of the ‘decision’ being challenged. However, what happens when there is no decision? What if a public body fails to or takes too long to make a decision? Can this also be challenged by way of judicial review? And when should a claim be brought?

There have traditionally been three grounds for judicial review. They are illegality, irrationality/unreasonableness and fairness/procedural impropriety – these are the principles upon which all public bodies must base their decisions. In other words, public bodies are required to act legally (within the confines of the law and policies), reasonably (not irrationally) and with fairness (such as with transparency and without bias, for example). The courts have been clear in ruling that the delay or failure to make a decision in itself can, in certain circumstances, be in breach of some and maybe even all of these principles. As for when and in what circumstances a delay may be considered to be unlawful, this will depend entirely on the circumstances of the case and any relevant legal provisions or policies, although there is unlikely to be a finding of illegality unless the delay itself is extreme.

In the case of R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin), which concerned the Secretary of State’s duty to transfer a claimant to a hospital for appropriate assessment, a delay of 5 months was considered to be “manifestly unreasonable”.

In another case, R (on the application of M) v Criminal Injuries Compensation Authority (CICA) [2002] All ER (D) 143 (Nov) a claim was made to the CICA in September 2000 and was still ongoing by February 2002. The Court held that from around the end of 2001, the CICA’s delays were unreasonable and irrational.

As for when a claim should be brought, the Court in R (Ali Raja & Anor) v London Borough of Redbridge [2020] EWHC 1456 (Admin) recognised that sometimes a claimant does not seek to challenge a specific decision on a specific date, as the conduct under challenge “may be of a continuing nature”. Whilst this does not remove the requirement for a claim to be brought ‘promptly’, it means in circumstances where it is difficult to point to a specific act, a claim may be classified as having a deadline which is ‘rolling’ where the ‘decision’ being challenged is deemed to be ongoing rather than occurring on a specific date.

In other words, it is not just specific decisions which may be challenged by way of judicial review but sometimes the failure to act or make a decision which may be challenged.

If you believe a public body may have acted unlawfully and you wish to challenge that decision, contact us for confidential legal advice.

[1] Civil Procedure Rules, 54.5

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