Can I seek 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. There is not however legal aid available for any part of the process up to and including creating and sending the pre-action protocol letter.
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.