A Pre-Action Protocol Letter is normally sent prior to commencing a Judicial Review (JR). Before commencing proceedings, a formal letter must be sent. This must set out precisely what it is alleged that the public body has done which is unlawful and what action is required in order to remedy that.
Parents can instruct a Solicitor to write a letter on their behalf.
Instances where a Pre-Action Protocol letter would be useful to force the Local Authority into complying with their legal duties:
- are not providing the specified and quantified support set out in your Child’s EHCP
- have not let you know if they are going to carry out an EHC Needs Assessment (EHCNA) within 6 weeks of the day you requested it
- have not let you know if they’re going to issue an EHCP within 16 weeks of the day you requested an EHCNA.
- have not issued the final EHCP within 20 weeks of the day you requested an EHCNA.
- have not given you a decision within 4 weeks of an Annual Review.
- have not provided your child with appropriate or full-time education.
- are unlawfully refusing to provide or fund home-school transport.
- are not undertaking appropriate social care assessments or providing appropriate social care support and services.
Example letters of the process to follow:
When provision is not being delivered – we would advise that you start with an email or letter notifying the LA of their failure – address it to your Case Officer:
As you know, Section F of our child’s EHCP provides for them to receive [1:1 speech and language therapy from a qualified therapist for one hour a week], [plus a programme drawn up by the SALT and delivered throughout the school day] by [name of child]’s teaching assistant who must be trained and supervised by the SALT for that purpose.
Since the EHCP came into effect, [child’s name] has received no SALT either on a 1:1 basis or via a programme. [Child’s name]’s School tells me that they have been trying to arrange this for some time via your department and the local SALT Service, but they are not receiving any responses.
We are seriously concerned about this failure which is prejudicing [child’s name]:
SALT should have been put in place some time ago, and the more its commencement is delayed, the more difficult it will be for [child’s name] to catch up.
Moreover, [child’s name]’s communication difficulties are affecting [his/her] ability to access the curriculum generally.
Please could you therefore let us know as a matter of urgency what arrangements you are making in this regard, and when we can expect SALT to begin. We understand that the LA has a statutory duty to arrange this, and that if any difficulty is encountered in arranging it via the NHS, it should be arranged via an independent therapist.
We should be grateful to receive this information by [insert a date 5 working days ahead] and look forward to hearing from you.
If there is no reply after the 5 working days, then copy in the Senior Manager and Area Manager of the Case Officer:
Dear [insert name],
We refer to our email of [insert date] and we are disappointed that we have not heard from you. As pointed out, this matter is becoming increasingly urgent. We would like to resolve this matter constructively, but in view of the continuing delay, we must warn you that if we do not hear from you as requested by [insert date 5 working days ahead of the date on the letter] we will have no choice but to consider action through the courts by way of an application for Judicial Review in [child’s name] to enforce their entitlement to special educational provision.
We would like to hear from you by that date without fail, with full details of the SALT appointed, his or her experience and qualifications, and the proposed start date which should of course be before [date two weeks ahead].
If there is still no satisfactory reply, then send an email to the Education and Inclusion Manager:
Dear [insert name],
We refer to our emails of [insert date] and [insert date] to which we have received no reply [or no reply other than an acknowledgement dated of].
We are writing to let you know that in this circumstance we now have no choice but to take legal advice with a view to Judicial Review proceedings in which, of course, we will seek an order that the LA pay the costs involved.
If you wish to avoid this, no doubt you will take urgent action to confirm arrangements for the immediate commencement of SALT support in accordance with the terms of [insert child’s name]’s EHCP.
Basic template for a Pre-Action Protocol
To: [Area SEN Manager and Case Officer]
[Insert your full address]
To [insert names],
NOTICE OF COURT PROCEEDINGS
We requested [an assessment] on [insert date]. Under [insert relevant section] you had until [insert date] to notify us whether or not you would be [conducting an assessment].
It is now [insert date] plus two weeks and we have still heard nothing despite numerous phone calls and emails to [insert name of person from LA you contacted].
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 doing so.
(Please note that Quality Relations are copied into this email and I request that this is taken as a formal complaint – Stage 1 – so I expect to hear from you within 10 days of this letter).
[insert your name]
Parent of [insert name]