Antisocial Behaviour etc. (Scotland) Act 2004: Part 7 - Antisocial Behaviour Notices: Guidance for Local Authorities

Review

39. Local authorities must notify the applicant that there is a right to a review of the decision and the time within which a request for a review should be made. A request for a review should be made within 21 days of the service of the ASBN, or a longer period if the authority allows this.

40. The procedure for the review is set out in section 70 of the 2004 Act. The person who carries out the review should be senior to the person who made the decision that is under review, and should also have had no involvement in the making of the decision. The options open to the reviewer are to:

• confirm the notice;
• vary any part of the notice;
• suspend the notice pending completion of the review - the reviewer should specify a period of suspension; or
• revoke the notice.

41. The authority must notify the applicant of the decision reached on review and the reasons for reaching the decision. Notice should be given in writing. Review notification letters should advise applicants of their right to go to the Scottish Public Services Ombudsman if they are dissatisfied with the way in which their application has been handled. There is no right to request a review of a decision reached on review.

42. Each local authority will wish to consider the most suitable review procedure for its circumstances, but it should incorporate the following features:

• it should be as speedy as is consistent with a full and fair consideration of the case;
• suitable training should be given to reviewers, who should be able to consider the merits of the case, and to substitute their own decision for the original one, or to carry out further investigations including seeking clarification or expansion of the basis of the landlord's request;
• reviewers should also be able to consider such matters as whether proper and unbiased procedures were followed, whether all relevant and no irrelevant factors were taken into account, and whether the decision was within the local authority's powers;
• the written notification of the review decision should include full and clear explanations of the reasons behind the decision and set out clearly which parts of the original notification are, and are not, being changed; and
• arrangements should be in place for ensuring that the implications of review decisions for decisions on, or the handling of, future applications are drawn to the attention of officers dealing with ASBNs and of senior officers.

43. Applicants unhappy with a decision may seek judicial review. In a judicial review the court cannot substitute its own opinion for that of the decision makers. However, it can strike down a decision on the grounds that the decision maker has exceeded or abused his powers, or failed to perform the duty delegated or entrusted to him, or exhibited bias. The court's decision may affect the particular case only, but it may also have wider implications for the local authority's policies and procedures. For example, it may call in question the legality of a current policy being applied, or indicate shortcomings in the local authority's procedures.