The laws concerning higher education
On 1 July 2018, a new Administrative Procedure Act began to apply. To make the legal text easier to comprehend, certain linguistic and editorial changes have been made in the new act. Certain principles that previously applied in practice have been explicitly stipulated in the new act. The legal text has also been adapted to a more expanded digital reality. Here, the Legal Division wants to highlight the new features of the act which are of importance for you as an employee at Lund University. As it is not possible for the Legal Division to describe in brief the entire content of the act or its application, here are a few selected parts that are relevant to the activities of the University. In case of uncertainty, please contact the Legal Division.
Information about the new Administrative Procedure Act
Important new features
-Click the links below to read more about the most important new features of the new act. All the links will open in the same window.
Here you will find a link to the new Administrative Procedure Act (2017:900) (opens in the same window) (in Swedish) on the Swedish Parliament's website.
On the website of the Government Offices of Sweden you can read The government bill 2016/17:180, A Modern and Legally Secure Administration – the New Administrative Procedure Act, which you can reach by clicking here (opens in the same window) (in Swedish), if you, for instance, is seeking an explanation so to why a change has been made.
Certain general and basic principles of administrative law (legality, objectivity and proportionality) are now explicit provisions in the new act.
The scope of several of the rules governing how public authorities are to handle inquiries and matters from the public is extended in the new Administrative Procedure Act. Previously, the application of certain rules in the act was limited to matters relating to the exercise of public power. That is, matters where the public authority would unilaterally take decisions concerning an individual, for example, on grading or admission to education. By contrast, the starting point for the new Administrative Procedure Act is that all procedural rules are to apply to all cases processed by a public authority. Id est not only to those relating to the exercise of public power. However, there will be exceptions made for specific types of cases covered by special legislation (for the University, this mainly refers to the Higher Education Act and Higher Education Ordinance).
When it comes to access for involved parties, the previous act stated that a party is entitled to have access to the material that has been brought into the matter. This was so provided that the matter concerned the exercise of public power in relation to someone. This provision has been extended in the new act so that the party has the right to access all material brought into a case, regardless of the type of case. This extension seems to involve increased administrative processing in all types of cases.
The public’s confidence in the impartiality of public authorities is important. It requires that all administrative officers with a conflict of interest shall be prevented from taking part in the processing of a case. The provisions concerning conflict of interest/disqualification have been modernised in the new Administrative Procedure Act. This is so without any major changes in substance. However, in one respect, the scope of what constitutes a conflict of interest has been expanded in the new act. A person participating in the handling of a case in a manner that may affect the decision of the public authority is to be considered disqualified if they, or someone close to them, “is likely to be affected by the decision to a more than insignificant extent”. A new feature of the act is that there may be a conflict of interest even if the person concerned is not party to the decision, or does not significantly benefits or suffers from the outcome of a case. It is sufficient that the outcome of the case, id est the decision, is likely to have significant consequences for the person involved in the processing of the case, or someone else close to them. This means that the prerequisites for when someone is considered to have a conflict of interest will be met more frequently.
Pursuant to both the current and the previous Administrative Procedure Act, cases are to be processed as efficiently, quickly and inexpensively/cost-effectively as possible without compromising legal certainty. An important new feature of the new act is that an individual who initiates a case may request that the public authority decides on the case if this has not been done in the first instance within six months. Such a request must be made in writing. The public authority will then have four weeks from the date of the request to either decide on the case or to reject the case through a special decision. Such a rejection may subsequently be appealed by the party to the Administrative Court.
The obligation to use an interpreter and to translate documents when the public authority is in contact with someone who does not speak Swedish is reinforced in the new act. The same applies if the public authority is in contact with someone with a disability that severely limits their ability to see, hear or speak.
The new Administrative Procedure Act introduces explicit provisions on how to open a case. Under the new act, an individual may open a case at a public authority through an application, report or other request. The request shall contain information about the person’s identity and contact details. Furthermore, the request is to state what the matter concerns, what the individual wants the public authority to do and, as a main rule, the circumstances underlying the individual’s request. If the request is incomplete or unclear, the public authority shall primarily offer assistance in correcting the request to the individual. However, if the deficiencies in the request are unresolved, to an extent that it prevents the public authority from processing the matter, the public authority may impose a requirement for the individual to correct any deficiencies. In such cases, the public authority must state that if the deficiency is not corrected, the individual’s request may not be considered at all.
The new Administrative Procedure Act explicitly regulates the public authority’s duty to investigative. The rule is designed so that the requirements for the extent of any necessary investigative measures vary, depending on the nature of the case concerned. The new act also includes the rule that if an individual opens a case, they are required to actively participate in and contribute to the investigation. Furthermore, pursuant to the new act, if a public authority finds that there are deficiencies in terms of what was submitted into the case, the public authority shall, through questions and remarks, urge the party to rectify any uncertainty.
According to the new Administrative Procedure Act, a public authority shall before making a decision on a matter, unless clearly unnecessary, inform the party of all material relevant to the decision. The public authority shall also give the party an opportunity to comment on the material within a certain time frame. Previously, the obligation to communicate material was limited to information added to the case by someone other than the party him- or herself, and also to matters relating to the exercise of public power in relation to an individual. There are some exceptions to the obligation to communicate material in a case, for example, if the case concerns employment of a person. However, the new act, in contrast to the old, makes no exception to the obligation to communicate information in cases concerning grading and admission. Such exceptions have however been included in the Higher Education Ordinance instead.
How decisions are made
The new Administrative Procedure Act clarifies the rules regarding decision-making. The provision states that decisions can be made by one or more executive officers, or in an automated fashion.
Justification of decisions
Previously a public authority’s final decision had to be justified, if the case concerned the exercise of public power in relation to an individual. Under the new Administrative Procedure Act, the obligation to state the reasons for a decision applies to all decisions which are believed to affect someone’s situation in a more than insignificant way. The decision shall state the legal provisions on which it is based. The public authority shall also account for the circumstances that have been decisive for the outcome of the case, in a way that is understandable to the individual. Justification is not required when clearly unnecessary, id est when an objective assessment would find it unnecessary, such as a decision completely in the party’s favour.
There are some exceptions to the justification obligation. If the decision concerns employment, for example, an exception can be made. However, the new act, unlike the old act, has no exceptions to the justification obligation when it comes to decisions concerning grading and admission. Such exceptions have been included in the Higher Education Ordinance instead.
Notification of decisions
When a public authority announces a decision in a case, the party of said case shall be informed of the full content of the decision (unless it is clearly unnecessary). This should be done as soon as possible. In the old act, the obligation to notify only applied to decisions concerning the exercise of public power in relation to an individual.
Correction and change of decisions
Decisions taken by public authorities sometimes need to be changed. This may be necessary in the case of a mistake or oversight, or if new circumstances have emerged which means that the decision would have been different if the circumstances had been known from the outset. There may also be circumstances following the decision which make it seem inappropriate or incorrect.
The new Administrative Procedure Act makes certain clarifications and changes in relation to the previous conditions.
Just as previously, a decision can always be corrected before it is expedited or otherwise made available to a third party. This does not require a special provision. After the decision has been expedited or made available, decisions may be corrected or changed under special circumstances.
Correction refers to adjustments that do not constitute a change of substance. Decisions that contain obvious typing or calculating errors or other similar oversights can be corrected. Corrections should be made if the error is of practical significance for a party of the case. This corresponds to the previous act.
Change refers to other types of amendments. Changes can be made if the public authority finds that a decision is incorrect due to new circumstances or any other reason. If the decision is favourable to a party (benefitting the individual in some way, for example a grading decision), it may be changed to the detriment of the party only:
• if the decision states that it may be revoked under certain conditions, (for example a course can only be cancelled if the admittance decision states that this is a possibility if the course does not have a certain number of applicants),
• if, for imperative safety reasons, the decision needs to be changed immediately (for example due to consideration to human and animal life and health, property), or
• if the error is due to the party having provided false or misleading information.
Changes shall be made if the public authority finds that a decision is obviously incorrect in a significant way due to the emergence of new circumstances or for some other reason, and the decision can be amended quickly and easily without resulting in a disadvantage to any individual party.
The term “omprövning” (reconsideration) is not used in the new Administrative Procedure Act. This affects the University in the sense that what we have previously referred to as reconsideration will now be called change. For example, “reconsideration of a grading decision” will now be called “change of a grading decision”.
In other cases, decisions which can be appealed may be changed by a higher authority following an appeal.
As a rule, public authorities are to inform the party of a case before a correction or change of a decision is made. As with the provisions concerning notification of decisions, the party concerned shall be informed of a corrected or amended decision.
The new Administrative Procedure Act introduces a new general rule regarding the types of decisions which may be appealed. A decision may be appealed if the decision is likely to affect someone’s situation in a more than insignificant way. The provision allows for a relatively broad interpretation and does not provide any examples of which decisions it may refer to. This means that decisions on advice, instructions, recommendations and similar occurrences can also be appealed if the decision has, or is expected to have, a real impact on someone’s situation. However, the impact must be of a somewhat qualified nature.
Another addition to the new Administrative Procedure Act is that if a party appeals against a decision, the amended decision must always be handed over to the superior body together with the appeal. In contrast to the previous act, which states that the appeal lapses if the public authority changes the decision in accordance with the appealing party's request, the new act stipulates that the new rule applies regardless of the public authority's decision.
The new act started to apply on 1 July 2018, at the same time replacing the old Administrative Procedure Act. However, the old act shall continue to apply to the extent that it is referred to in other legislation or ordinances.
For questions about the laws concerning higher education, contact:
+46 46 222 09 85
johanna [dot] alhem [at] legal [dot] lu [dot] se
Hanna Stam (leave of absence)
hanna [dot] stam [at] legal [dot] lu [dot] se
Sanna Håkansson (leave of absence)
sanna [dot] hakansson [at] legal [dot] lu [dot] se