Judicial Review: is this the solution to all of your EHCP problems, is this the ‘quick fix’?
Judicial Review – you will undoubtedly have seen this mentioned on other Forums, and it is often lorded as the answer to EHCP procedural difficulties: ‘just do a JR’.
So, is that it?
If you don’t agree with the LA – JR?
If you don’t want to wait for a SENDIST Hearing – JR?
You are 10 days over the 20 week timescale for EHC NA – ‘just do a JR?’
Let’s dive deeper into this and look at what exactly Judicial Review is.
Taken from Courts and Judiciary ‘Judicial Review is a type of court proceeding in which a Judge reviews the lawfulness of a decision or action made by public body. In other words, Judicial Reviews are a challenge to the way in which a decision has been made, rather than the rights or wrongs of the conclusion reached.’
Still unsure? Let’s look at another source:
Ministry Of Justice
‘Judicial review should only be used where no adequate alternative remedy, such as a right of appeal, is available. Even then, Judicial Review may not be appropriate in every instance. Claimants are strongly advised to seek appropriate legal advice as soon as possible when considering proceedings. Although the Legal Aid Agency will not normally grant full representation before a letter before claim has been sent, and the proposed defendant given a reasonable time to respond, initial funding may be available, for eligible claimants, to cover the work necessary to write this’.
(To find out if you are eligible, or indeed if your child is of an age where they can independently achieve Legal Aid for full JR, including the Pre Action-Protocol letter find out if your are entitled to legal aid here- remember that this is particularly relevant for those with Post 19 EHCPs).
Judicial Review is the last chance saloon – when you have no alternative option, and it’s not always a quick, or cheap fix.
Remember:
If it’s an appealable decision – JR is not the step to take. Refusal to Assess, Refusal to Issue, B,F and I, or Section I must be appealed to the First Tier Tribunal – JR will not circumnavigate this and will not speed this process up.
Judicial Reviews apply to public and private bodies, and agencies that carry out public duties, they ensure ‘good administration’ – administration that is procedurally fair, proportional, in line with the Equality Act and Convention Rights, lawful, and reasonable.
For education this means:
Local Authorities
Admission Appeal Panels
School, Maintained Nursery, Further Education Governors and Governing bodies
Independent review panels for permanent exclusions
Government departments and ministers
In addition to the above, you must put in for your Judicial Review in good time, meaning ‘promptly and no later than 3 months’ after the decision or action (or inaction) that you are seeking to challenge. Failure to do so means that the courts can refuse the claim.
For EHCP matters this will be:
Failure by the LA to implement Section I (school placement)
Failure by the LA to carry out an Annual Review in time
Failure by the LA to complete an Annual Review in a reasonable timeframe
Failure by the LA to undertake EHC NA in the 20-week statutory timeframe
Integrated Care Board withdraws Section G (of the EHCP) provisions
Failure by the LA to provide education otherwise than at school for a child or young person who has a lawfully recognised reason why they cannot receive their education in a school/FE college
Failure by the LA to secure Section F provision following all other available complaints processes.
So, you know that Judicial Review has a time restriction, and you know that Judicial Review is where the public and private body has not acted ‘reasonably’. Unreasonable is defined as:
not governed by or acting according to reason
beyond what can be accepted as: a) clearly inappropriate, or harmful in degree or kind b) lacking justification in fact or circumstance
any action or result that exceeds a reasonable expectation, or refers to anything beyond what would be considered ‘common sense’
not based on or using good judgement
All of these factors must be proven. At Judicial Review you will have to identify that all of the above apply and that the individual who made the initial decision was not a ‘reasonable decision maker.’ This is a very high bar to reach, and this requires more than a ‘hand hold’ – you will need full legal representation. The individual who you are stating made an unreasonable decision will also have full legal representation – your LA will be using a barrister and often a team of barristers who will not be holding back.
Judicial Review is not to be undertaken lightly. You must show that the LA have acted unreasonably – irrationally, and not just that they have acted wrongfully.
There are very defined steps to take should you believe that Judicial Review is the only course of action left to take.
A JR is commenced via a pre-action protocol letter, which you ‘can’ find online – however we urge caution. A PAP is the initial ‘warning shot’ – the threat that you are intending to initiate Judicial Review.
The LA may see this and decide that the game is up, and it’s a much easier and cheaper option to back down.
They may also decide that they will respond they do not agree that they have acted unreasonably. This then takes you into the Judicial Review process and the need to prove all of the above has actually taken place, and that the LA has indeed not just acted wrongfully, but also unreasonably. The bar is set very high for successful outcomes and will mean that you will need high quality legal representation from professionals who are well versed in educational disputes and High Court Action.
Once entrenched in Judicial Review your LA are unlikely to back down, as losing the case will result in their being liable for all costs, their own, and yours – and this includes the additional costs which Legal Aid will incur – the Indemnity Principle.
Do not anticipate a rapid resolution to your case. Once fully into Judicial Review – which is High Court action - the process is long and frustratingly complex. Your legal team will be checking and double checking – any missed opportunity to receive a resolution can result in the JR being dismissed.
Hearings for Judicial Reviews are not allocated specifically for education purposes, and your case will be waiting in line with all other JRs awaiting a Hearing.
A quick fix? No, not always! Once fully into JR, its long, drawn out and extremely costly.
Do your research, this is a quick overview of Judicial Review and not legal advice, for this we recommend the following legal teams, who we know, from personal experience to be outstanding in this field of legal representation.
You can find testimonials to our bespoke services on our website and Facebook business page - here
Finally, you will find lots of useful video clips and free video and ‘podcast’ resources in our YouTube library here.
We are and always will be Stronger Together.
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