‘Judicial review’ is asking a court to look at the decision of a public body and to decide whether it was made in a lawful, fair and reasonable manner. The court does not look at whether it agrees with the public body’s decision, but looks at the way the decision was taken. If it finds that the way the decision was taken was unlawful, unfair or unreasonable, it can order the public body to re-make its decision, or order the public body to take a particular action
A judicial review claim may be necessary where there is no other way the complaint could be resolved. In relation to a child or young person with special educational needs (“SEN”), this could be if:
- A local authority (“LA”) has agreed to issue an EHC plan but fails to actually issue the final plan, resulting in the child or young person missing special educational provision or schooling.
- The LA fails to secure the provision set out in an EHC plan, resulting in the child or young person missing education.
- The LA has arbitrarily or unreasonably decided to stop providing home-to-school transport to which a child or young person is entitled, meaning the child or young person cannot get to their place of learning.
- The governing body of a school refuses to admit a child or young person despite being named in the EHC plan (where there has been no formal exclusion).
If the complaint is about the content of the EHC plan, then that should be appealed to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) instead.
In all of the above examples, the parent or young person should first complain to the LA or school. Judicial review is only used where there is no other available effective remedy. For some complaints, it may be more appropriate (or preferable for the parent) to complain to the Local Government and Social Care Ombudsman instead. You will need to consider which is the most appropriate way of addressing your problem.
The time limit for applying for judicial review is as soon as possible but in any event within three months from the date when the act, decision or event being complained about occurred. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action. However, it is vitally important to apply for judicial review as soon as possible and within the time limit even if the complaints procedure has not been completed.
To succeed in an application for judicial review about special educational needs, parents must show either:
- That the LA (or other public body) does not have the legal power to make the decision or to take the action which they object to; or
- That the LA (or other public body) is under a legal duty to act or make a decision in a certain way and is refusing or failing to do so.
Public bodies can be challenged on grounds of:
- Illegality, including acting outside their powers or by making an error in law
- Irrationality, in cases in which a decision is completely unreasonable
- Procedural unfairness, including carrying out procedure unlawfully, breaching the rules of natural justice, failing to consider legitimate factors or considering illegitimate factors
- Breach of the Human Rights Act 1998.
‘Public bodies’ in education include:
- Local Authorities
- School governing bodies
- Governors of maintained nurseries
- Governors of Further Education institutions
- Independent review panels for permanent exclusions
- Admission appeal panels
- Government ministers and government departments
Getting legal help
Unlike appeals about EHC plans, where parents are usually not legally represented, for judicial review it is strongly advisable to seek advice from a solicitor as soon as possible.
The ‘pre-action’ stage
The first part of judicial review is called the ‘pre-action’ stage, where a formal pre-action letter is sent to the Local Authority explaining the issue and giving it an opportunity to resolve it. We would recommend getting a lawyer to draft this letter to ensure it covers everything it needs to. After that stage, an application is made to court for permission to bring the judicial review.
If you do not qualify for legal aid, you would need to cover the cost of a lawyer preparing the pre-action letter and making the application for legal aid for the child. We would recommend using one of the legal aid providers because, if you can get legal aid in your child’s name for everything from the application onwards (see heading below), it makes sense for the same lawyers to do both parts. If you visit the legal aid website, and select ‘public law’ and then enter your postcode, you will be able to find providers in your area.
We requested [an assessment] on X date. Under [relevant section] you had until Y date to notify us whether or not you would be [conducting an assessment]. It is now Y date + two weeks and we have still heard nothing despite numerous phone calls and emails to Mr A. Unless you confirm within 14 days that you will [conduct an assessment or provide us with a right of appeal against your refusal to do so], we will instruct solicitors, who will issue judicial review proceedings in respect of your failure to comply with [relevant section]. They are likely to seek their costs of so doing.
The action stage
In cases relating to children or young people with SEN, generally the case will be about the child or young person’s rights, rather than the parents’. For everything after the pre-action stage, legal aid can be sought in the name of the child or young person, based on their income, rather than yours.
How to start an action
Parents or their legal representative must apply for permission to bring a judicial review to the Administrative Court in the Queen’s Bench Division of the High Court. The lawyer could ask the court to take immediate action or stop an action before the case is heard. This would be temporary until the court’s final decision. It may take between six months and a year for the case to be heard.
- Quashing order – where the court overturns a decision and requires the public body to make it again properly. This is the most common remedy.
- Prohibiting order – where the court tells the public body not to perform an action or make an unlawful decision.
- Mandatory order – where the public body is required to perform an action, for example to ensure the help on a statement is carried out.
- Injunction – where the court tells the public body to do or not to do something.
- Declaration – where the court says that a decision or act is unlawful, for example a declaration that a decision or act is not in line with the Human Rights Act 1998.
- Damages – an order very rarely made in judicial review but compensation may be awarded where a decision has caused harm or loss. This happens most often when a public body has interfered with human rights.
Appeals against the outcome of a judicial review can be made to the Court of Appeal with permission and again, if permission is given, to the Supreme Court.