Q8: Are there statutory processes to follow?
The particular statute may require certain processes to be followed in making a decision. Often, this will require a lawyer to read and interpret the statute as the process may not be neatly set out in one statutory provision.
Sometimes, a statute will set out the process that is to be followed in making a decision. Where this is the case, a failure to follow the process may invalidate the decision. A process may be set out in a particular section of the statute, or in a number of sections. It will usually be sensible to check with your in-house lawyer whether the statute you are applying contains a process for making the decision. And, if so, what steps the decision-maker is required to take.
| The Social Security Act 2018 contains a process for the imposition of sanctions. That process is set out over several sections of the Act: |
| – Section 252 provides that a notice must be given before a benefit may be reduced, suspended or cancelled and sets out the required contents of that notice; |
| – Section 254 sets out how a notice may be given; |
| – Section 255 sets out additional steps that must be taken in certain circumstances. |
| The Immigration Act 2009 sets out how claims or refugee or protected person status are to be accepted and determined (see sections 134-138). |
A statutory process differs from a process set out through policy or guidelines.
A statutory process must be followed, or the decision may be rendered unlawful. By contrast, where a decision is being made pursuant to a policy or guideline, the decision-maker:
- must give consideration to whether a departure from the policy is warranted;
- may be required to consult with affected parties if intending to depart from the policy; and
- if there is a departure, must explain why.