Judicial Review

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Judicial Review is a process by which public authorities can be held to scrutiny by the HIgh Court. It involves asking a judge to either stop a local authority taking a particular step, or to require a local authority to take a particular step.

It is important to seek the right legal advice as there is the possibility that if unsuccessful, you could be ordered to pay costs.

Our specialist education solicitors advise families across England and Wales on judicial review matters, helping parents understand whether a decision or failure to act may be unlawful and what steps can be taken to challenge it.

When might judicial review be appropriate?

Judicial review can be relevant where a public body has failed to comply with its legal duties, made a decision outside its powers or failed to follow a fair and lawful process.

In education, this can include matters such as:

    • Failure to provide special educational provision specified in an EHCP in England
    • Failure to secure additional learning provision specified in an IDP in Wales
    • Failure to provide suitable education where a child is out of school
    • Failure to comply with statutory duties or timescales
    • Decisions concerning school transport
    • Failure to properly consider relevant evidence or circumstances
    • Decisions made using an unlawful policy or procedure
    • Failure to secure education if a child is out of school

Judicial review is concerned with the lawfulness of the decision or action, rather than simply whether the decision was the right one.

In some cases, there may be another appeal or tribunal route available. It is therefore important to establish whether judicial review is the appropriate way forward.

What can judicial review challenge?

The court may consider whether a public body:

  • Acted outside its legal powers
  • Failed to comply with a legal duty
  • Took account of irrelevant matters or failed to consider relevant matters
  • Followed an unfair or unlawful procedure
  • Made a decision that was irrational or unreasonable in the legal sense
  • Failed to comply with a legitimate expectation in appropriate circumstances
  • Acted in a way that was incompatible with relevant legal rights

The court does not simply substitute its own view for that of the public body. The focus is on whether the decision making process and the decision itself were lawful.

Judicial review and EHCPs and IDPs

Judicial review can sometimes be appropriate where a local authority is failing to fulfil its legal responsibilities in relation to a child’s education.

In England, this may include a failure to secure the special educational provision specified in an EHCP.

In Wales, a local authority maintaining an IDP has a duty to secure the additional learning provision described in the plan.

There may also be circumstances where a local authority has failed to make a decision, failed to follow the required process or has not acted within the timescales required by law.

However, judicial review is not always the appropriate remedy. For example, certain disputes about the contents of an EHCP in England or an IDP in Wales have specific tribunal appeal routes.

We can help you understand which legal route applies to your circumstances.

What happens during judicial review?

Judicial review generally begins before a claim is issued at court.

Pre action stage
The first step will usually involve sending a formal letter before claim to the public body concerned. This sets out what has happened, why the decision or failure is believed to be unlawful and what action is being requested.

The Pre Action Protocol for Judicial Review applies in England and Wales and normally allows the defendant 14 days to respond. The protocol is intended to give the parties an opportunity to resolve the dispute without court proceedings where possible. This 14 days can only be reduced in cases of real risk to life. It may be appropriate in some education matters, but this is rare.

Court proceedings
If the matter cannot be resolved, a judicial review claim may be issued.

The court will first consider whether permission should be granted for the claim to proceed. If permission is granted, the court will consider the legal arguments and evidence before deciding whether the public body acted unlawfully.

In appropriate urgent cases, it may also be possible to seek an interim order while the case is being considered.
The remedy available will depend on the circumstances and the nature of the unlawful decision or failure.

How long do I have to bring a judicial review?

Judicial review claims must be brought promptly and, in general, no later than three months after the grounds for the claim first arose. The court rules make clear that the three month period is not an automatic entitlement to wait.

Some cases may have shorter time limits, so it is important to obtain legal advice as soon as possible if you believe a public body has acted unlawfully.

The pre action process does not extend the legal time limit for bringing a claim.

How can we help

Judicial review can be a complex area of public law, particularly where a child’s education or support is at stake.

Our specialist education solicitors can:

  • Review the decision or failure to act
  • Advise whether judicial review may be appropriate
  • Consider whether another appeal or legal route is available
  • Identify potential grounds for judicial review
  • Prepare and send a letter before claim
  • Communicate and negotiate with the public body
  • Advise on issuing court proceedings where necessary
  • Prepare the legal arguments and evidence
  • Support you throughout the judicial review process

We understand how important your child’s education is and how difficult it can be when a public body is not doing what the law requires.

If you believe a local authority or other public body has acted unlawfully in relation to your child’s education, we can help you understand your rights, your options and what you can do next.

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