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.