Judicial Review

Public bodies, such as local authorities and schools, are required to follow the law when exercising their day to day functions. If they fail to perform their duties they may be challenged by way of a procedure known as judicial review.

Local authorities and schools make decisions everyday that can have an impact (positive or negative) on parents, carers and children with special educational needs. Sometimes these decisions are made contrary to the law or perhaps there is even a failure to act which breaches a persons legal rights. In such circumstances, a parent or carer may be able to challenge the decision or inaction by way of judicial review.

This is a procedure where a judge scrutinises the decision or inaction of the public body and decides whether the Court should intervene. It is a complex procedure which is administered in the Administrative Division of the High Court.

We have significant experience bringing claims in the High Court and can manage all aspects of the process.

WHEN COULD JUDICIAL REVIEW BE USED?

In the education sector judicial review may be used to challenge the following types of situations:

A child is out of school and is not receiving education or an inadequate amount of education;
The special educational needs support identified in Section F of a child’s Education, Health and Care Plan is not being delivered by the child’s educational setting;
The Local Authority has failed to hold or complete an annual review in accordance with the required timescales;
The Local Authority has agreed to carry out an Education, Health and Care Needs Assessment but has failed to act in accordance with the required timescales resulting in a lengthy delay with the assessment.

These are examples of the types of situations where a judicial review claim may be appropriate,

WILL THE CASE GO TO COURT?

The first stage of the procedure is to write a “Letter Before Claim” to the local authority. The local authority would be required to respond within 14 days unless the case is particularly urgent. Usually, sending a Letter Before Claim is sufficient to resolve the claim and local authorities will seek to address the breach of duty identified, for example, by providing a child with education.

It is only in extreme cases that a claim would need to be issued in the High Court. This would be where the local authority believes that it has acted in accordance with its duties and denies what is claimed.

Once a claim is issued, the Court will decide whether to grant permission to apply for judicial review. If it does grant permission, this provides a further opportunity for the local authority to resolve the claim. If the matter is not resolved, the Court will arrange a hearing in Court to determine whether it should use its powers to order the local authority to take action.

WHAT ARE THE COSTS OF SEEKING JUDICIAL REVIEW

The costs of bringing judicial review proceedings vary depending on the nature of the claim and whether or not the matter is capable of being settled. The claim is usually brought in the name of the child or young person although eligibility for legal aid may depend on the means of their parents. Unfortunately, we are not able to offer legal aid. Cases are usually funded by one of the following means:

Crowdfunding – A number of online platforms specialise in crowdfunding, where friends, family and members of the public can help you raise funds to bring a claim.
No Win No Fee – means that if you don’t win the case, you don’t have to pay the court or your solicitor any fees.
Legal Expenses Insurance – Your home insurance may include cover for legal expenses and you should check directly with your insurer to find out if this is the case.
You can pay privately for legal advice and representation and we can offer capped fees for the different stages of the judicial review process.

If the case is successful the local authority usually has to pay all of your costs and these will be assessed by the Court. If you lose, then you may have to pay the local authorities costs.

CASE STUDY: Non-implementation of a child’s EHC Plan

We successfully challenged the local authority’s failure to provide a child with the therapeutic provision specified in their EHC Plan. The Local Authority agreed to provide the provision within 14 days and to remedy any non-provision by arranging additional therapy for the child.

CASE STUDY: Failure to provide education TO A CHILD

A child was absent from school for medical reasons and was not accessing any form of education. We successfully argued that the local authority was in breach of its duty to provide education and as a result the local authority were ordered to put place full time education until the child could return to school.

CASE STUDY: Failure to consult on SEN Funding changes

We challenged a local authority for attempting to implement a new SEN funding mechanism for schools. We argued that they had failed to properly consult on the proposals and failed to secure the appropriate approval from the Council’s cabinet before implementing the changes. This would have had a significant impact on SEN funding in the area.

CASE STUDY: FAILING TO ARRANGE A SPECIAL SCHOOL PLACEMENT

A child with an EHC Plan was required to attend a special school. However, the local authority took no steps to provide a place at a special school because of a shortage of places. This resulted in the child not attending school for 6 months. On issuing judicial review proceedings, we successfully secured the child a place at a special school and a declaration that the local authority had acted unlawfully.

CONTACT US

For more information about judicial review and whether this type of legal process is suitable for you, contact us to arrange an initial consultation.