‘Judicial review’ is asking a court to look at the decision of a public body and to decide whether it was made in a lawful, fair and reasonable manner. The court does not look at whether they agree with the public body’s decision, but looks at the way the decision was taken. If they find that the way the decision was taken was unlawful, unfair or unreasonable, they can order the public body to re-make their decision, or order them to take a particular action.

A judicial review claim may be necessary where there is no other way the complaint could be resolved. In relation to a child or young person with special educational needs (“SEN”), this could be if:

  • A local authority (“LA”) has agreed to issue an EHC plan but fails to actually issue the final plan, resulting in the child or young person missing special educational provision or schooling.
  • The LA fails to secure the provision set out in an EHC plan, resulting in the child or young person missing education.
  • The LA has arbitrarily or unreasonably decided to stop providing home-to-school transport to which a child or young person is entitled, meaning the child or young person cannot get to their place of learning.
  • The governing body of a school refuses to admit a child or young person despite being named in the EHC plan (where there has been no formal exclusion).

 

If the complaint is about the content of the EHC plan, then that should instead be appealed to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”).

In all of the above examples, the parent or young person should first complain to the LA or school. Judicial review is only used where there is no other available effective remedy.

The time limit for applying for judicial review is as soon as possible but in any event within three months from the date when the act, decision or event being complained about occurred. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action. However, it is vitally important to apply for judicial review as soon as possible even if the complaints procedure has not been completed.

To succeed in an application for judicial review about special educational needs, parents must show either:

  • That the LA (or other public body) does not have the legal power to make the decision or to take the action which they object to; or
  • That the LA (or other public body) is under a legal duty to act or make a decision in a certain way and is refusing or failing to do so.

Public bodies can be challenged on grounds of:

1. Illegality, including acting outside their powers or by making an error in law

2. Irrationality, in cases in which a decision is completely unreasonable

3. Procedural unfairness, including carrying out procedure unlawfully, breaching the rules of natural justice, failing to consider legitimate factors or considering illegitimate factors

4. Breach of the Human Rights Act 1998.

‘Public bodies’ in education include:

  • Local Authorities
  • School governing bodies
  • Governors of maintained nurseries
  • Governors of Further Education institutions
  • Independent review panels for permanent exclusions
  • Admission appeal panels
  • Government ministers and government departments

Getting legal help

Unlike appeals about EHC plans, where parents are normally not legally represented, for judicial review it is strongly advisable to seek advice from a solicitor as soon as possible.

In cases relating to children or young people with SEN, generally the case will be about the child or young person’s rights, rather than the parent’s. This means legal aid can be sought in the name of the child or young person, based on their income. You can find out about getting legal aid here.

How to start an action

Parents or their legal representative must apply for permission to bring a judicial review to the Administrative Court in the Queen’s Bench Division of the High Court. The lawyer could ask the court to take immediate action or stop an action before the case is heard. This would be temporary until the court’s final decision. It may take between six months and a year for the case to be heard.

Possible remedies

  • Quashing order – where the court overturns a decision and requires the public body to make it again properly. This is the most common remedy.
  • Prohibiting order – where the court tells the public body not to perform an action or make an unlawful decision.
  • Mandatory order – where the public body is required to perform an action, for example to ensure the help on a statement is carried out.
  • Injunction – where the court tells the public body to do or not to do something.
  • Declaration – where the court says that a decision or act is unlawful, for example a declaration that a decision or act is not in line with the Human Rights Act 1998.
  • Damages – an order very rarely made in judicial review but compensation may be awarded where a decision has caused harm or loss. This happens most often when a public body has interfered with human rights.

Appeals

Appeals against the outcome of a judicial review can be made to the Court of Appeal with permission and again, if permission is given, to the Supreme Court.

 

If you haven’t been able to find the answer to your question, you can book an appointment to speak with us.