This factsheet is one of a range of FREE Factsheets on Education, Disability & Public Law issues that we have written for parents who are seeking specialist help. In it we have produced basic but relevant on the issues identified as well as information about what we do and how we may be able to help. We would be very grateful if you would not photocopy it or copy it electronically but ask other people who you feel may find it helpful to download it directly from our website at www.specialeducationalneeds.co.uk.
Judicial Review is the form of public law proceedings where the High Court is asked to review the lawfulness of a decision of action of a public body. It can only be brought by a person or organisation who has a sufficient interest in the decision. It is not an appeal on the merits of a decision and can only be used when all alternative (and appropriate remedies have been exhausted, including any rights of appeal available. The point is to put right a bad decision rather than to get compensation which means that a successful action will not normally result in an award of damages.
GROUNDS FOR JUDICIAL REVIEW
The grounds for Judicial Review are often referred to as:
• “Illegality” – which is a decision taken ‘ultra vires’ (literally ‘beyond the powers’ available to the body)
• “Procedural Impropriety” or “Fairness” – which is a failure in the process of reaching the decision, such as not observing the’ rules of natural justice’
• “Irrationality” – where a decision is so unreasonable that no sensible person could have reached it (i.e. ‘perverse’ or ‘Wednesbury’ unreasonable)
The rules of natural justice have two main elements including the ‘rule against bias’ and the ‘right to a fair hearing’. Irrationality challenges have become increasingly harder to make in recent years.
There is also now, the implementation of the Human Rights Act 1988, the need for domestic decisions to comply with the European Convention of Human Rights.
For the purposes of Education matters, public bodies are normally Local Education Authorities (“LEA’s”), Schools, Government Departments and Independent Appeal Panels. If a body is a statutory body because of it derives its power to take decisions directly from legislation, then it is normally considered a public body. This includes those set up under an Act of Parliament or delegated legislation. Even where a body does not derive its power from legislation but is carrying out a public function (e.g. a self regulating professional body) it may still be subject to Judicial Review. The test is whether or not its functions are carried out in the public rather than private sphere.
Judicial Review claims must be brought promptly and, in any event, within three months. This does not mean that a Claimant should wait until just before the three month limitation to issue proceedings because Judicial Review is also a “discretionary” remedy and the Court can utilise its discretion to refuse a claim if it has not been brought ‘promptly’ by having regard to the facts of the case.
When a claim is in relation to “continuing breach” of a statutory duty – for example if a child has not been receiving Special Educational Provision set out in a Statement of Special Educational Needs (“Statement”) for some time or if an LEA has not complied with a time limit prescribed to them by the law for conducting an assessment or finalising a Statement – it may still be possible to bring proceedings after three months by arguing that any containing failure means that the time limit is continually running.
Judicial Review is a two stage process. It requires a Claimant to first of all apply for permission to apply for Judicial Review and then, if the Court considers that the Claimant has an ‘arguable case’, the claim will be allowed to proceed to a substantive hearing. There is now a “pre-action protocol” in relation to Judicial Review claims which the Court will normally expect all parties to have complied with. It will take any failure to comply into account when managing proceedings or making orders for costs.
The pre-action protocol requires a letter before a claim to be sent to a Defendant identifying the issues in dispute and establishing whether litigation can be avoided. The letter should contain the date and details of the decision or act being challenged, a clear summary of the facts, details of any relevant information being sought (with an explanation of why it is relevant) and details of any interested parties known who should also be sent a copy of the letter within 14 days in which to respond and any failure to do so may be taken into account by the Court who can impose sanctions unless there are good reasons.
If a claim needs to be issued then it must be issued with the Administrative Court in the High Court and served on the Defendant within 7 days The Defendant will then have 21 days which to serve an Acknowledgement of Service (i.e. Defence). When this is received by the Court both the claim and the Acknowledgement of Service will be put before an Administrative Court Judge to consider “on the papers”. If necessary, the Judge can call for an oral hearing before making a decision. If permission is granted the Court may issue directions as to future conduct of the claim including: granting “interim relief” at the permission stage; abridging the normal time for service of evidence; and/or expediting the time for the substantive hearing. There is always an opportunity by both parties to put in further evidence.
The claimant must file and serve a skeleton argument 21 working days before the day of the substantive hearing and the Defendant (and any other party wishing to make representations at the hearing) must file and serve a skeleton argument no less than 14 working days beforehand. The Claimant must also file a paginated and indexed bundle of all relevant documents with his skeleton Argument and this bundle must also include all documents required by the Defendant and any other Person who wishes to make representations at the hearing. The substantive hearing will take place on the basis of legal argument rather than on any oral evidence being given. In certain circumstances where all parties agree the Court may consider whether or not to grant a Judicial Review without parties attending.
DISCRETION/DUTY OF FULL AND FRANK DISCLOSURE
All parties in Judicial Review proceedings are under a duty to give full and frank disclosure to the Court which means that they should discuss all material, including any unfavourable to their case, which should be known if they made reasonable enquiries. Inadvertent non-disclosure is not an accepted automatic excuse. This means that any weaknesses cannot be concealed and should be explained. This also means that any distorted versions of facts will not be allowed and Court will sanction a party if it believes that there has been non-compliance with the duty of full and frank disclosure. It is also important to understand that Judicial Review, being a discretionary remedy means that a Defendant has acted unlawfully it may still not utilise its discretion to grant relief to the Claimant.
In terms of relief, if the Court does allow the claim it is able to order one or more of the following:
• A “Mandatory Order” – where the Defendant must take a certain step
• a “Prohibiting Order” – where the Defendant must not take a certain step
• a “Quashing Order” – where the decision is quashed and must be taken again
• an “Injunction” – to restrain a person from taking a certain step
• a “Declaration” – to set out the Court’s view of the unlawfulness of a situation
If a decision is quashed the Court can remit the matter back to the decision maker to reconsider the matter and then reach a decision in accordance with the Judgement of the Court. However, where the Court considers that is no purpose to be served in remitting the matter back it may, subject to any other statutory provision, take the decision itself.
In education matters some claims can only be brought in the name of a child or their parents so the practical availability of bringing a Judicial Review usually depends upon whether or not there is public funding available. However, since a claim must be brought “promptly” it is advisable to seek specialist legal advice immediately if you consider that a public body is acting unlawfully.