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Judicial review is a process during which a Judge considers the lawfulness of a decision, action, or inaction by a public body.
Judicial Review falls into separate stages. The first stage is an application for permission. This involves the Court considering the application and deciding whether there is an issue it should look into. This stage is normally dealt with on the papers, but can involve a hearing. If permission is granted, the matter will go to full consideration. This stage normally involves a hearing. This is where the Court considers the arguments and decides whether or not to uphold the application. Typically, the Court will only grant remedies after full consideration, but interim Orders can be secured in very urgent cases.
In an application for Judicial Review, the key question is whether the law has been applied properly, with the correct procedures being followed.
For an application for Judicial Review to be successful, the applicant will have to show that:
- The public body has acted against its legal obligations
- The public body is refusing to do something which it is required to do by law
- The public body has made a decision it was not entitled to make
- The public body has acted in a way beyond its powers
The Court’s role in Judicial Review is supervisory. As such, even if unlawful behaviour is proved, you may not get the outcome you want.
Judicial review can be very complicated, and the process is designed for lawyers. It is also important to know that you may be required to pay the public body’s costs in defending your application if you are unsuccessful. As such, it is strongly advisable that you seek specialist legal advice before making an application
What can be challenged by Judicial Review?
Decisions made by public bodies may be challenged by Judicial Review. Public bodies include Government ministries, local authorities, health authorities, tribunals and schools.
Independent schools, or non-maintained schools, cannot be challenged by Judicial Review.
Increasingly public bodies contract private companies to fulfil their obligations. If a private body is exercising a public function, it is possible that it could be subject of a Judicial Review.
In education law, the most common issues that result in Judicial Review are:
- Child(ren) out of education
- Content of health provision in an Education Health and Care Plan
- Content of social care provision in an Education Health and Care Plan
- Refusal to provide a Personal Budget
- Refusal to make Direct Payments
- School Transport
- Failure to comply with a Statement of Special Educational Needs
- Failure to comply with an Education Health and Care Plan
- Unlawful exclusions
- School / local authority policies
An application for Judicial Review must be made as quickly as possible. In any event, it must be made within three months of the relevant decision, or action, that is being challenged. These rules are normally applied very strictly.
Some applications for Judicial Review have been refused despite being made in less than three months, because they were not made as soon as possible.
As indicated above, Judicial Review can be very complicated.
The process of Judicial Review is difficult. In addition, the application will only be successful if it can be shown that the public body has acted in a way which is unlawful. Successfully arguing this requires detailed and specialist knowledge of the law.
It is strongly advisable to seek specialist advice before embarking on an application for Judicial Review. Our specialist education law solicitors will be happy to discuss your case.