Judicial Review

Judicial Review is a stage-by-stage process in which a Judge will decide on the lawfulness of an action by a public body – such as a school or Local Authority – and determine the best outcome.

The first stage of Judicial Review is to apply for permission, which will lead to a Court deciding whether or not a dispute is worth investigating. This is generally dealt with on paper, but can sometimes involve a hearing also.

Once a matter has been granted permission, it will be taken into full consideration, usually through a hearing. This stage will allow the Court to determine whether to uphold the application or not, by taking each argument into consideration. The Court will normally only grant remedies once a full consideration has taken place, but an interim Order can be available in urgent cases.

When you are making an application for Judicial Review, your key consideration would be whether or not the law has been upheld sufficiently, and the correct procedures have been followed acceptably.

Putting forward a successful application for Judicial Review will also mean presenting that:

• A public body is refusing to do something in accordance with the law
• A public body has acted in contradiction of its legal responsibilities
• A public body has acted beyond its authority
• A public body has made a decision it was not permitted to make
• A public body has acted in a completely irrational or unreasonable way

The Court’s role in a Judicial Review is ultimately supervisory and neutral. This means that even if unlawful actions are proved, you are still not guaranteed the result you want.

Any decision made by a public body can be challenged through Judicial Review. Public bodies include schools, Local Authorities, tribunals, Government departments, or health authorities, however, private and independent schools cannot be contested via Judicial Review. In addition, public bodies are now contracting private companies to fulfil their responsibilities, and as such it is a possible matter for Judicial Review.

The most common reasons a dispute with a public body will result in Judicial Review are:

• School transport
• Children who are out of education
• The health provision content and social care content in an EHCP
• Refusal to provide a Personal Budget
• Unlawful exclusions
• School or Local Authority policies
• Failure to comply with an EHCP or a Statement of Special Educational Needs
• Refusal to make payments
• Time limits

In any event that results in an application for Judicial Review must be done within 3 months of the action or decision that is being challenged. However, bear in mind that Reviews can be rejected despite being made in less than the 3 month limit, simply because they are not made as soon as possible.

Judicial Review can be extremely frustrating and complicated. It can not only be difficult to prove a public body has acted in an unlawful way, but attaining a successful outcome requires specialist knowledge of the law.

It is strongly advised that you seek the help of a specialist solicitor before deciding to apply for Judicial Review. The entire process is designed to be navigated by lawyers, so it is unwise to take proceedings on by yourself. The solicitors at HCB would be glad to help if you would like to discuss a possible Judicial Review application, or how you can best proceed with your dispute.