Abolarin, R (on the application of) v Liverpool City Council

Procedural fairness in an administrative review is context-sensitive. The court must consider the statutory framework, the nature and purpose of the decision, and the constitution and expertise of the decision-making body. Compliance with regulations is a significant indication of fairness, but is not conclusive.

Overlapping membership between an initial panel and a review panel does not necessarily create apparent bias. Nor will an adviser’s presence or repetition of an argument in the affected person’s absence necessarily make the process unfair where the panel is independent and experienced, and the person has already had a fair opportunity to address the substance of the argument. A decision is not irrational merely because the panel prefers one permissible interpretation of disputed events or records oral exchanges differently from a party.

The claimant had been approved as a foster carer by the defendant since 2009. Following concerns about his openness and ability to work in partnership with the fostering service, the defendant proposed to terminate his approval.

An initial fostering panel recommended termination. After the claimant made written and oral representations, a review panel confirmed that recommendation. The defendant’s agency decision maker then terminated the claimant’s approval under the Fostering Services (England) Regulations 2011.

The claimant sought judicial review on grounds of apparent bias, procedural unfairness and irrationality. The central issues were whether the review panel’s overlapping membership, the involvement of a fostering-service adviser, and the adviser’s comments in the claimant’s absence rendered the process unfair, and whether the panel had relied on irrelevant or inaccurate matters.

1. The claim was dismissed. The defendant’s decision was the result of a fair and rational process. Although the formal decision was that of the defendant, an unfair or irrational recommendation by the review panel would have invalidated the resulting decision.
2. Fairness had to be assessed contextually. The court considered the statutory framework, the protective purpose of the fostering regime, the claimant’s substantial interests, and the character and expertise of the panel. Compliance with the Fostering Services (England) Regulations 2011 was a significant indication of fairness, but not conclusive.
3. The overlap between the two panels did not create apparent bias. Six of the seven review-panel members were independent, the members were selected for relevant experience, and the second panel was expressly reviewing the first recommendation in light of further representations. A fair-minded and informed observer would not regard the review as incapable of genuine reconsideration.
4. The presence of Mr Kelly as an adviser did not create apparent bias. His role was materially different from that of a panel member who determined the issue. The panel’s independence and experience enabled it to distinguish advice from direction and to reject advice if appropriate.
5. Mr Kelly’s comment after the claimant had withdrawn did not require the claimant to be recalled. The comment merely repeated an argument already advanced by the social workers and addressed by the claimant. Fairness might have required a response to new factual material, but no new material had been introduced.
6. The panel was not irrational in taking account of earlier incidents. Those matters were relevant to whether the claimant’s difficulties reflected a continuing pattern or were out of character. Differences between the claimant’s recollection and the minutes did not establish reliance on inaccurate facts, and the panel was entitled to prefer the fostering service’s interpretation of the evidence.
7. The unredacted minutes of the first panel did not disclose undisclosed evidence. The passage relied on was properly understood as a comment on material in the report which the claimant had received and addressed.