Can I seek judicial review?

Category: Annual Review, Education, Judicial Review

You may come across the term ‘Judicial review’ (JR), as it relates to challenging decisions made by the Local Authority.

This term refers to asking a court to decide whether the decision of a Local Authority (public body) has been made in a lawful, fair and reasonable way.

There are several circumstances where Judicial Review may be an option as it relates to education.

Failure to provide support specified in sections F and G of an Education Health and Care Plan (EHCP). Note that this is only practicably possible if provision is properly specified and detailed in these sections.
Failure to implement the school placement in Section I.
Failure to provide full-time education.
Failure to provide the full national curriculum to children eligible to receive it.
Failure to provide education out of school for children who for any lawful reason are unable to attend school.
Unlawful exclusion from school.
Unlawful decisions of appeal panels who have upheld permanent exclusions.
Decisions of school admission appeal panels.
Failure to provide school transport, or the decisions of independent panels considering school transport issues.
Refusal of local authorities to comply with Special Educational Needs and Disability Tribunal decisions or directions.
Failure to meet time limits during the EHC needs assessment process.
Failure to carry out annual reviews when due, or to complete the annual review process within a reasonable period.
Failure to issue change of school phase statements by 15 February in the relevant year (or 31 March for children due to move to post 16 placements).
Unlawful school placement, transport or other policies by local authorities, including funding decisions made without proper consideration of Equality duties or proper consultations, and the use of blanket policies where they have a duty to deal with each child according to their individual needs.
Unlawful decisions by Clinical Commissioning Groups to withdraw health provision in Section G of an EHC Plan.
Unlawful government decisions.

This is not an exhaustive list.

JR is not suitable for challenging content in the EHCP, appealing a decision not to assess or issue.

The court will only consider the way a decision has been made, and not the decision itself. If it finds that the decision was made unlawfully, unfairly or unreasonably, it can ask the Local Authority to re-make its decision or take a particular action.

JR is a remedy of last resort. It should be used only after all other efforts to work with the Local Authority to resolve the issue have failed. This includes, for example, ensuring you have used the Local Authority’s formal complaints process where this could provide a realistic remedy – however, it is not a realistic remedy if it would be too slow, for instance, when a child is out of school unlawfully, or is not receiving full time education, or if the child’s special educational needs are not being met.

Most education-related JR challenges can be brought in the child’s name which means that the child will probably be financially eligible for legal aid and there would be no cost to parents to take this to court. However, with limited exceptions (e.g. children in local authority care) Legal Aid in the child’s name is not available for pre-action letters.

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’ and your intention to seek JR.

Take a look at our tools and guidance below for more details on JR and getting a pre-action protocol letter created and sent.

SOS!SEN is able to issue a pre-action protocol letter on your behalf. Contact us using our services booking form.

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.

Find out more:

What are others saying?

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

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