Q22: What record is appropriate?
The decision of the decision-maker should be recorded in writing so that the decision is clear and can be communicated to those it affects, and will be clear in the event of challenge.
Any statutory decision, and all significant decisions (especially involving a third party), should be recorded. Recording decisions is also part of normal, prudent business practice (as required by s 17 of the Public Records Act 2005).
For some decisions, the relevant Act may expressly require the decision-maker to record reasons for the decision, see for example s 27 of the Immigration Act 1999. For other decisions, the relevant Act may state that reasons are not required, for example ‘absolute discretion’ decisions under s 11 of the Immigration Act 1999 where reasons are not required.
An accurate record of reasons helps the decision-maker to ensure the decision is reasonable. Reasons provide accountability.
Officials preparing recommendations should carefully formulate the reasons for the recommendation.
Stop and consider: are the reasons logical and coherent, is this a well-reasoned decision, do the reasons support the decision?
When recording a decision, the following matters are important:
- Decisions expressly refer to mandatory relevant considerations.
- If consultation was required, the record notes that this was carried out and that the decision-maker (or delegate) considered any representations made. It is also helpful to summarise the consulted parties’ positions and attach their submissions.
- If a recommendation for a decision was made and the decision-maker did not accept it, the reasons for the decision should be recorded, together with any new or different matters that were considered.
- Where policy guidelines are being applied these should be referred to. If policy guidelines exist but are not being followed, this should be explained and reasons given for the departure.
- The report and accompanying reasons are factually correct, otherwise the decision could be unlawful.