Judicial Review
Updated: Sep 13
Judicial Review: is this the solution to all of your EHCP problems; is this a ‘quick fix’?
Judicial Review – you will undoubtedly have seen this mentioned by SEND families, 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 look into this and think about exactly what Judicial Review is.
"Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached."
"Judicial review should only be used where no adequate alternative remedy, such as a right of appeal, is available."
Judicial review will generally only be appropriate where there is no adequate alternative remedy, such as a statutory right of appeal, and it’s not always a quick, or cheap fix.
Key Points:
If it’s an appealable decision – judicial review 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 – judicial review will not circumnavigate this and will not speed this process up.
Judicial review challenge the way a decision has been made, not the outcome of the decision itself.
A judicial review can be brought against the decisions, actions, or failures to act of a public body exercising a public function.
For education this means:
Local Authorities
Admission Appeal Panels
School governing bodies, maintained nursery governing bodies and further education governing bodies when exercising public functions
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 include:
Failure to secure attendance at, or arrangements for, the educational placement specified in Section I of an EHCP.
Failure to conduct annual reviews.
Delay in EHC needs assessments.
Failure to meet phase transfer deadlines.
Failure to provide Section 19 education.
Failure to secure Section F provision.
Integrated Care Board withdraws Section G (of the EHCP) provision
To take judicial review action, you will need to evidence that the public body has not acted ‘reasonably’.
Reasonable can be defined as a decision that a lawful, informed, and rational public body could have reached, even if other reasonable people might have reached a different decision.
Unreasonable can be defined as a decision so irrational that no reasonable public body, properly directing itself in law and considering the evidence, could have reached it.
Judicial review is not concerned with whether a decision was simply wrong, nor whether the court would have reached a different conclusion. Instead, it examines whether the decision was made lawfully. A claimant must identify one or more recognised grounds for judicial review, such as illegality, procedural unfairness, or irrationality.
Where irrationality is relied upon, the threshold is high. The court will generally only intervene where a decision is so unreasonable that no reasonable public authority could have reached it, as established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Judicial review proceedings are complex and are often defended by solicitors and barristers acting on behalf of the public authority. Proceedings can be lengthy and procedurally demanding. For this reason, claimants are strongly advised to obtain specialist legal advice at the earliest opportunity.
Judicial review should not be undertaken lightly. It is generally a remedy of last resort and should only be pursued where there is no adequate alternative remedy, such as a statutory right of appeal.
A judicial review claim will normally begin with a Letter Before Claim sent under a Pre-Action Protocol (PAP) sent in accordance with the Pre-Action Protocol for Judicial Review. The purpose of this letter is to identify the issues in dispute and give the public authority an opportunity to reconsider its position before court proceedings are commenced.
In some cases, a local authority may review its decision when it received a Letter Before Claim. In other cases, it may maintain its position and respond to the allegations made.
A quick fix? Not usually.
Judicial review proceedings can be lengthy, procedurally complex and costly, particularly where a case progresses through the full High Court process. However, some cases are resolved earlier, for example following a Letter Before Claim or during the early stages of proceedings.
Before considering judicial review, carry out thorough research and obtain specialist legal advice wherever possible. This overview is intended as a general introduction only and should not be relied upon as legal advice.
If you are considering judicial review, we can provide some limited capacity to support families through the judicial review process or we recommend seeking advice from a solicitor or barrister with specific expertise in public law, SEND law and High Court litigation.
For more information about our judicial review services, please email appeals@empoweringSENDfamilies.co.uk
You will also find lots of useful video clips and free video and ‘podcast’ resources in our YouTube library here.
If you have any questions come and find us on our Facebook Group, we are always available to provide professional support there.
For more general information about how Empowering Families can help you email admin@empoweringSENDfamilies.co.uk
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