Applying for a pre-action protocol letter (The PAP Project)

Category: Education, Judicial Review

JR is a way for parents and young people to challenge the decisions of a public body, by asking a court to decide whether the decision of, in this instance, a local authority, has been made in a lawful, fair and reasonable way. The same is true where the local authority has failed to deliver on its statutory duties.

Before you can seek JR, you have to have given the local authority the opportunity to rectify the situation. This means making the public body aware of your intentions to send what is known as a ‘pre-action protocol letter’ (PAP) and your intention to seek JR.

The PAP Project

Our new JR initiative, the PAP Project, is enabling us to issue a PAP letter if your case is a valid one.

Criteria for a PAP under the PAP Project

Failure to meet deadlines during the EHCP assessment process, after annual reviews and tribunal hearings, and for change of phase placements.
Failure to supply provision in sections F and G of EHCPs.
Unlawful exclusions/imposition of reduced or part time timetables.
Failure to provide education for children out of school

Please note that if your issue relates to enforcing other aspects of local authority, school’s or other public authorities’ obligations (for example, transport, policy challenges, failure to arrange specific assessments etc, we may still be able to draft a PAP letter; however, as this will be more complex it will be outside the project’s scope at the moment and we will need to ask for a payment, currently £145. Please use the form at Contact Us to apply.

Registering for a PAP under the PAP Project

Please click here to register, complete the form and attach the required supporting evidence. The list of documents required is here.

What happens next?

On completion of this, your case will be assessed for viability and added to our waiting list to be allocated to a volunteer. We will contact you if your case is not suitable for a PAP. Should your circumstances change during this period and you no longer need a PAP letter, please let us know so we can remove you from the list.

If we have not received all the information with your registration, unfortunately we will be unable to process your request and are not able to chase for missing information.

Cost

If your case is a viable PAP letter under the PAP Project (see the criteria list above for those cases that are being considered at this time), then the cost of your PAP letter will be covered by the Project.

Until viability has been checked, we will not be able to confirm if your case is suitable for the PAP project.

Should I write to the LA’s complaints department?

Probably not. If you write to the complaints department, the official complaints procedure will kick in and that will be much slower; also this could be treated as an admission that there is an alternative route to dealing with your claim, which would make JR inappropriate as it is supposed to be used only as a last resort. This does not prevent you raising a complaint at a later stage, e.g. about overall delay.

Who should I write to at the LA to warn of a potential JR claim?

For SEN cases, write to your case officer and copy in the Head of Department. For issues that are not limited to SEN, write to the Head of Education. For a transport issue, write to the head of school transport but again copy in the Education Department. You should be able to get addresses from the website; if in doubt, use the central Town Hall address and/or phone for the address.

Isn’t JR really slow?

If, as happens in the majority of cases, the issue is very clear and the LA concedes on receipt of the pre-action letter, that could mean the problem being resolved within two or three weeks. If you do have to take it to the next stage, solicitors can apply in urgent cases for emergency legal aid - and where a child is not receiving education or SEN provision, the Legal Aid Agency is prepared to treat it as urgent. That means that legal aid could be secured within a week or two of solicitors being instructed. It might be limited to something like requiring counsel's opinion in the early stages, but again that can normally be dealt with quickly. If or when Legal Aid is granted, notice of that fact has to be served on the LA and sometimes that alone persuades them to concede. If you have to start proceedings, how long it will take depends on the circumstances and the court's backlog. In theory a fully defended claim may take several weeks to come to hearing, but this is rare; only a tiny proportion of defended JR cases get that far because they tend to be settled. However, if the issue is urgent, you may be able to ask for 'interim relief': i.e. a temporary order granting what you need - for example tuition at home - until the main action itself is heard. This is normally arranged by way of a shorter hearing which could take place within 2-3 weeks of the action starting, or even sooner in a really urgent case.

Isn’t it very stressful and time-consuming to bring JR proceedings?

Yes and no. If it becomes necessary, you would be referred to solicitors with a legal aid contract who would do virtually all the work, although you will obviously have to liaise with them about evidence etc. However, the vast majority of cases never proceed beyond the original pre-action letter. If, for instance, a local authority has missed a statutory deadline, it will be well aware that it has no defence to a JR claim and will not want to risk becoming liable for its own and the claimant's costs.

If we have to take JR action in our child’s name and lose, could we or our child be ordered to pay the other side’s costs?

Assuming this is with the benefit of legal aid, almost certainly not. The law takes a pragmatic view that it is pointless to order someone who has no money to pay costs. There might be an order for costs which is not to be enforced without the leave of the court - that allows for the situation where the child suddenly comes into money somehow. However, neither we nor any solicitor we deal with regularly have never known any such order to be enforced.

I phoned the Legal Aid Agency and was told that we couldn’t get legal aid in our child’s name. Why?

If you were asking about legal aid for the pre-action letter, they were right. If they were talking about legal aid for the purposes of starting a JR claim, they were wrong, and unfortunately this is an error we come across too frequently. It is better to contact one of the firms that has an education or public law legal aid contract direct.

Can any solicitor write a pre-action letter or bring a JR claim?

In theory yes, but in practice you would be much better advised to go to solicitors with experience in education and/or public law, ideally with a legal aid contract. We have seen some poor quality pre-action letters from solicitors or self-styled legal advisers/SEN advisers which were simply a waste of time and money. Details of solicitors with the relevant contracts can be obtained from the Legal Aid Agency.

Can I write the pre-action letter myself?

There is nothing specifically requiring a pre-action letter to be sent by solicitors. However, it is fairly technical and ideally requires knowledge and experience of JR and all the law involved. The danger of a 'do it yourself' approach is that you may make an error or leave out something important, which will simply mean that you have wasted time and haven't saved any money because either your solicitors (when they get involved) have to redo the letter or, if you start proceedings, the case gets thrown out of court.

Does that mean that legal aid is not available before a claim is started? What about the costs of the pre-action letter?

Yes: unless the parents themselves also qualify for legal aid in their own right, or unless the young person concerned is over 18, the pre-action letter won't be covered by legal aid. Solicitors will tend to charge a few hundred pounds. Ask us for details of the fee we ask for completing this on your behalf.

Can I write the pre-action letter myself/can a friend write it/do I have to have it written by solicitors?

There is nothing specifically requiring a pre-action letter to be sent by solicitors. However, it is fairly technical and ideally requires knowledge and experience of Judicial Review and all the law involved. The danger of a 'do it yourself' approach is that you may make an error or leave out something important, which will simply mean that you have wasted time and haven't saved any money because either your solicitors (when they get involved) have to redo the letter or, if you start proceedings, the case gets thrown out of court.

Isn’t it awfully expensive to bring a JR claim?

Most education JR cases relate to the rights of the child. Therefore it is likely that your child will qualify financially for legal aid if or when it becomes necessary to start a claim.

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What are others saying?

Read article on why Judicial Review is a real remedy in SEN cases by Steve Broach

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