Hofstetter & Anor v London Borough of Barnet

The independent review mechanism for prospective adopters is not an appeal. It provides an independent second opinion, while the adoption agency remains the decision maker. A qualifying determination is a provisional minded-to decision, not a final determination.

An agency decision maker may make more than one decision in the process, but must approach each decision with an open mind and make the decision personally. If the decision maker adopts a panel’s reasons, those reasons become the decision maker’s reasons and remain vulnerable to public law challenge if flawed.

Openness and honesty are important in adoption assessments, but must be applied sensibly by reference to the nature and relevance of the information and the parties’ responses.

The claimants had been approved as prospective adopters by the London Borough of Barnet. After the borough learned that the first claimant had previously been dismissed for gross misconduct by another local authority, an Adoption and Permanency Panel recommended rescission of the approval. The agency decision maker made a qualifying determination and, following referral to the Independent Review Mechanism, made a final decision rescinding the approval.

The claim challenged the decision on grounds including failure to consider the original approval, excessive reliance on the dismissal, unfairness and apparent bias arising from the same decision maker taking both decisions, inadequate reasons, and procedural unfairness in the review process.

1. Statutory structure. The claim was dismissed. Under Adoption Agencies Regulations 2005, the qualifying determination is a provisional minded-to decision. The later decision is made by the adoption agency after considering the relevant panel recommendations. The IRM review is not an appeal and the IRM cannot overturn the agency’s determination; it supplies an independent recommendation.
2. Functions of the decision maker. The agency decision maker must examine the material independently, approach the case with an open mind and identify the reasons for the decision. The decision maker may adopt a panel’s reasons, but then adopts all those reasons as his or her own. Any flaw in the panel’s process or reasoning may therefore infect the decision.
3. Reasons. There was no general requirement for the decision maker to restate, in his own words, reasons which followed the relevant recommendation. By adopting the IRM panel’s short but clear reasons, the decision maker gave reasons for the final decision. The earlier flaws in the Adoption and Permanency Panel’s reasoning did not invalidate the final decision because the IRM panel’s process and reasoning were sound and supplied the effective reasons for the final decision.
4. Openness and honesty. The requirement is not a mantra. It must be applied by reference to the nature and relevance of the alleged non-disclosure, why it occurred, and the parties’ reactions. It is a two-way process involving judgment. Here, the claimants’ failure to disclose the dismissal and their insistence that it was irrelevant supported the conclusion that the non-disclosure was deliberate and relevant to their ability to deal openly with difficulties affecting an adopted child.
5. Apparent bias. The same agency decision maker could lawfully make the qualifying determination and final decision. A fair-minded and informed observer would understand that the later stage required reconsideration in light of a different recommendation or further information. The claimants did not establish unfairness or a real possibility that the decision maker had a closed mind.
6. Procedural point. The former practice of inviting only the agency to comment on draft IRM minutes caused no unfairness on these facts. The judge indicated that the later practice, under which both sides receive checked minutes subject to confidential redactions, was correct.