Unsettling Practices in Public Administration: KR and LR (A Minor) v Health Service Executive [2024] IEHC 255

One of the great unseen issues in public administration is the settlement of applications for judicial review. There has been a general trend in recent years towards the encouragement of out-of-court negotiations between applicants and public bodies. There are obvious benefits to settlement, in terms of sparing scarce judicial resources, permitting both sides to retain funds that would otherwise be spent on legal fees and setting aside decisions that are obviously unlawful.

Sunkin and Bondy, in their seminal study on judicial review in the United Kingdom after the Bowman reforms of the 2000s, comment favourably on settlement:

Most judicial review claims are settled and most settlements satisfy the claims made in the judicial review. The evidence indicates that the rate of settlement has increased since the post-Bowman reforms and that a growing proportion of claims are settled prior to the permission stage. These findings indicate that the post-Bowman reforms have been successful in achieving a higher incidence of earlier settlement. Whether or not there has been a change of litigation culture, the research identifies that there is a widespread conscientious concern amongst both claimant and defendant solicitors to resolve disputes in a timely fashion. Moreover, concerns that settlement may disadvantage individuals in dispute with relatively well-resourced and powerful public bodies appear to be unfounded (The Dynamics of Public Law Litigation: The Resolution of Public Law Challenges Before Final Hearing (Public Law Project, 2009), at p. 46).

But there is a downside. Sometimes, systematic settlement of meritorious judicial review applications will facilitate maladministration. Canadian readers might think of mandamus applications made in respect of tortuously slow immigration processes: there is precious little jurisprudence to guide litigants and decision-makers, however, because most cases settle; anecdotally, it also seems that settlement is the preferred strategy of Canadian government lawyers in response to meritorious challenges to the use of automation in the area of immigration. Systematic settlement gets results for individual applicants but means courts are not able to opine on important issues of legal principle (see also Tomlinson & Thomas on mandatory reconsideration). And even if one thinks that courts should not be in the business of preventing or resolving maladministration, judicial decisions can contribute to transparency by highlighting systemic issues for other actors (such as parliamentarians, NGOs and watchdogs).

These concerns were prominent in a recent decision of the Irish High Court, KR and LR (A Minor) v Health Service Executive [2024] IEHC 255. This was a decision of Hyland J, who manages the judicial review list in the Irish High Court and thus has a bird’s eye view of litigation about the lawfulness of public administration in Ireland.

Hyland J began by explaining that settling public law cases on consent is qualitatively different from settling private law cases on consent, where a court will simply memorialize the parties’ agreement “without substantively reviewing its contents” (at para. 1). As the Supreme Court recently explained:

It is important to recall that when the High Court makes an order for judicial review, it is exercising its inherent power to supervise the legality, rationality and procedural fairness of the activities of the District and Circuit Courts, tribunals and other public authorities (Hogan, Morgan and Daly, Administrative Law in Ireland, 5th Ed 2019, Ch 18).  Thus, an applicant for judicial review is asking the High Court to exercise its supervisory function.  That inherent power of the High Court can only be exercised when it has been established that the decision was unlawful (remedy of certiorari) or that unlawfulness is apprehended (remedy of prohibition) or that an order is required to compel compliance with a legal obligation (remedy of mandamus).  Usually where all the relevant parties (including the notice party) are consenting to the quashing of an order, there will be very little to trouble the High Court in the exercise of its supervisory function.  Nevertheless, the High Court in granting the relief sought does not do so as a matter of course.  Instead, the High Court must be satisfied that it is a lawful exercise of its supervisory function based on the evidence and submissions made to it (Ballyboden Tidy Towns Group v an Bord Pleanala & Ors [2024] IESC 4, per Donnelly J).

In judicial review proceedings, therefore, an agreement to settle a matter on consent cannot simply be rubberstamped by the reviewing court.

The underlying issue here was the HSE’s failure to conduct an assessment of needs under the Disability Act 2005 in a timely manner. The statute requires that an assessment be commenced within three months of an application and be completed within three months of commencement unless there are exceptional circumstances (at para. 3). But the HSE did nothing at all for six months. At that point, the applicant complained. Four more months passed before the HSE responded to a solicitor’s letter to say that it would need seven months to answer the complaint (at paras. 4-5). That would mean an 18-month delay overall, making a mockery of the clear timelines set out in the legislation.

Lo and behold, once judicial review proceedings seeking mandamus were commenced, the HSE agreed to consent to an order requiring it to answer the complaint within eight weeks and to pay the applicant’s costs (at paras. 6-7). The HSE accepted that its current delays in the processing of complaints — around 11 months — are unlawful (at para. 13). Its current practice is to agree to consent orders in such cases once the High Court has granted leave to bring judicial review proceedings.

There are four obvious problems here: first, those with the resources to instruct legal representatives to commence judicial review proceedings will have their complaints treated before the complaints of the unrepresented; second, the courts will be unable to set out any general principles about how the HSE should address its inability to meet its statutory obligations; third, systematic settlement creates a deadweight social loss as the HSE meets its own legal fees and the legal fees of applicants in respect of services the HSE is, in any event, legally obliged to supply (these fees run into the tens of thousands of euro); and fourth, judicial resources are unnecessarily diverted to deal with these cases.

Hyland J was evidently concerned. She noted that there has, in recent months, “been a very significant increase” in judicial review applications seeking mandamus in respect of delay in the complaints process and explained that she therefore “asked the HSE to explain the context of the application and proposed consent order” (at para. 14).

The HSE provided an affidavit explaining that more than 1,000 complaints have yet to be assigned: only 44 judicial review applications have been commenced. In 2019, the average complaint processing time was 22 days but the volume of complaints has risen significantly since 2023 whilst the number of civil servants tasked with dealing with complaints has remained unchanged. The affidavit provided further context:

i)  During Covid- 19, staff were re-assigned to unrelated duties.

ii) In 2021, whilst the Office had a relatively low number of complaints, it also had its lowest staffing level since 2017. In addition, multiple-issue complex complaints increased by 120%. Only 62% of all complaints are straight-forward timeframe related complaints. There was a 100% increase in Service Statement related complaints and a 200% increase in complaints made under section 14(1)(a) 14(1)(c) of the 2005 Act, which are significantly more time consuming.

iii) In 2022 the complexity of Service Statement related complaints increased following the High Court’s decision in JN & TM v. Harraghy [2022] IEHC 407. In the same year, the complexity of assessment-related complaints also increased due to the decision of the High Court in CTM v. HSE [2022] IEHC 131, which affected 10,000 families and led to a further increase in time-consuming section 14(1)(a) and section 14 (l)(c) complaints.

iv) Complaints involving legal representation spiked from 2022 onwards, with increasingly detailed complaints. The proportion of cases with legal representation has continued to increase in 2024.

v) The volume of court cases unrelated to the backlog is taking a toll, as legal scrutiny intensifies, leading to:

a) An increased administrative burden to a delegated lead DCO to ensure all DCOs are up to speed on new legislation, case law and advice.

b) Court ordered re-investigations of complaints, in some cases due to judgements that supersede previous judgements.

c) More lengthy and detailed investigations, specifically in relation to section 14(1)(d) of the 2005 Act.

vi) The legal protocol is an additional administrative burden.

vii) The volume of complaints continues to rise significantly.

viii) Judicial Reviews arising from the delays lead to an increased administrative burden on the DCOs.

ix) As amendment to the Disability Regulation by way of Statutory Instrument 704 of 2021 and changes to Regulation 16A regarding eligibility for services has led to increased scope of complaints and investigation by DCOs.

Hyland J commented in strong terms on the affidavit. She noted that there was no information provided “identifying how the HSE intend to comply with their legal obligation to address complaints” (at para. 16). She described the HSE’s approach as “unsatisfactory” (at para. 19), as it burdens the court and incurs unnecessary legal costs:

It is obvious from the affidavit of Ms. Ahern that the HSE is incurring considerable legal costs in settling these cases. It is also clear that the HSE is prioritising the complaints of parents and guardians of children who have issued proceedings over those that have not, since the order consented to is an order agreeing that the complaint will be processed within 8 weeks from the date of the order. This is significantly shorter than the number of days taken to process a complaint in 2023 i.e. 172 days. By not addressing the underlying problem, and by settling claims by agreeing to process the complaint in an expedited manner, the HSE is incentivising parties to issue proceedings. That has an impact upon this Court since it means that court resources are being diverted from other litigants, and are required to be expended on managing cases where there is an admitted breach by the HSE but no proposal to remediate that breach. As identified above, applications relating to a failure to process complaints within a timely manner currently form a significant percentage of the judicial review leave applications. Viewed through these perspectives, it is clear that the approach of the HSE to complaints under s. 14 of the 2005 Act is adversely impacting upon the resources of the Court insofar as judicial review is concerned and that significant legal costs are being incurred (at paras. 17-18).

Ultimately, Hyland J granted the consent order: it was no fault of the applicants that the Executive has been unable to meet its statutory obligations (at para. 19).

Nonetheless, her approach is laudable. She shone a light on systematic maladministration, forcing the Executive to explain its approach and explaining the impact on the legal system. What happens next is a matter for the Executive and other bodies, such as the legislature, the Ombudsman and non-governmental organizations. Any action they take to resolve this systematic maladministration will be informed by the information put in the public domain by Hyland J’s proactive response to the application for a consent order.

This content has been updated on May 16, 2024 at 13:11.

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