Judicial review is a formal legal process in which a court considers the lawfulness or otherwise of a decision, failure to act, or policy adopted by a public body; including schools and local authorities. It can be a powerful tool for ensuring that the rights of children and young people with Special Educational Needs and Disabilities ("SEND") are respected. In a Judicial Review the court is not concerned with the correctness of the public body’s decision, but instead by the process by which it was arrived it. If it decides that the way the decision was taken was unlawful, unfair, or unreasonable, it can quash the decision and order the public body to make the decision again or order it to take a particular action.
Examples of when Judicial Review might be used in SEND include:
Enforcing compliance by local authorities with the statutory timescales for conducting Education Health and Care Needs Assessments (“EHCNAs”) and issuing Education Health and Care Plans (“EHC Plans”)
Where a local authority has failed to deliver the Special Educational Provision (“SEP”) in section F of an EHC Plan
Where a school refuses to admit a child or young person despite being named in section I of an EHC Plan (assuming no formal exclusion).
Judicial Review is often said to be the remedy of last resort, and as such there must be no other effective remedy open to the parent/carer or young person. It is also important to act promptly; cases must usually be brought within 3 months of the action complained of.
Judicial Review actions are brought in the High Court, which unlike the First Tier Tribunal SEND is a costs jurisdiction. This means that whoever loses is liable to pay not only their own legal costs but those of the other party. Unsurprisingly this can quickly add up.
It may be possible to obtain legal aid for Judicial Review in the name of the child. However, this does not cover the compulsory initial stage of a Pre-Action Protocol (“PAP”) letter, unless the parent/carer is themselves eligible for legal aid.
SEND Advocacy is able to advise you as to whether Judicial Review is an appropriate course of action for you to take or whether an alternative solution exists. If you need someone in your corner to help you secure the education your child deserves, contact us today.
Comments