A new judicial review programme
We are excited to be taking part in a new judicial review (JR) initiative -a programme that uses the threat of JR to enforce the rights of children and young people with SEND.
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
The SOS!SEN PAP Project is an innovative initiative supported by barristers from Garden Court and Doughty Street Chambers and is kindly funded by the Baring Foundation.
It aims to enable front line organisations in the education sector including SOS!SEN, to help parents, carers and young people to challenge unlawful education-related decisions made by or on behalf public bodies, predominantly local authorities – using a combination of training, detailed precedents and supervision by expert lawyers.
SOS!SEN has for some time offered a successful but limited service under which we write pre-action letters warning of potential judicial review action as one of the most effective and quickest ways to challenge unlawful decision-making by public bodies including local authorities, Integrated Care Boards and maintained schools and academies. Further information and practical guidance on judicial review is available in our downloadable JR information sheet.
Under Pre-Action Protocols (PAPs) set by the courts’ Civil Procedure Rules, before any judicial review action can be commenced, a formal pre-action letter or letter before claim has to be sent to the potential defendant to give them a last chance to avoid court action by putting their failure right, and in the education field it is very frequently the case that such letters resolve the problem by themselves as many of the issues are clear-cut.
Under the PAP Project, we are delighted to join together with other charities to prepare PAP letters free of charge for their members/users within the most commonly problematic categories of unlawful failings relating to their special educational needs and disabilities. Formal pre-action letters do not necessarily have to be drafted by lawyers, but a level of expertise is required as a badly drafted letter can be very counter-productive. We have worked with our supporters and associated charities in providing training and support to volunteers to draft letters, and have set up a supervision process under which drafts will be checked by lawyers before they are sent out.
What are we supporting?
Initially we are limiting this offer to letters dealing with the following issues and/or any combination of them:
- 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.
Although other issues cannot at the moment be dealt with under the Project, SOS!SEN may still be able to help so please feel free to inquire through our Services page.
Our main aim in setting up this project is to make it easier for parents, carers and young people to enforce their legal rights in relation to education. One of the ongoing issues in this area of law is the lack of accountability in the system which has meant that, for far too long, public bodies have been ignoring the law in the knowledge that they are likely to get away with it; we hope through the project at least to begin to turn that around when it becomes clearer that parents have an accessible and effective legal remedy to use to resolve issues.
How to apply?
If you believe that your case may be suitable for a PAP, please consult the information on the process for registering and submitting your information.