Why Judicial Review is a real remedy in SEN and disability cases

by stevebroach

A large part of my contribution to social media involves suggesting that people consider judicial review as a way turning their rights into reality. However I recognise that for most people the prospect of taking the state to the High Court is seriously off-putting. The point of this post is to try to show that judicial review isn’t remote and terrifying but instead is a real way to get a remedy for unlawful conduct by the state – with a particular focus on how this applies to disabled children and adults and their families.

To start at the beginning. Judicial review is the process by which the High Court supervises the conduct of public bodies and makes sure they act in accordance with the law. In line with a wonderful quote from Lord Justice Sedley, judicial review isn’t in fact so much about ‘rights’ as it is about ‘wrongs’. What the Administrative Court (the part of the High Court which hears judicial review cases) is looking to do is identify where public bodies have got the law wrong and ensure this is put right. So every judicial review case in fact promotes the ‘rule of law’ – the essential principle that everyone is governed by the same law and must comply with their legal obligations.

What does a judicial review case involve? Well, it firstly almost certainly needs to involve lawyers. In theory a disabled person or family member could make an application for judicial review without legal advice but there are two main reasons why this would be likely to be an extremely bad move:

  1. Public law (the law governing the conduct of public bodies) is complicated. Not only will there be a web of statutes, regulations, guidance and case law covering the relevant dispute but there are likely to be important ‘common law’ principles in play too. The common law is judge-made law developed over the decades to reflect the standards of our society. An important example in many SEN and disability cases is the common law duty to carry out a fair consultation. Disabled people and families simply will not be able to identify all the relevant legal issues in their case – or indeed whether they actually have a case – without legal advice.
  2. Unlike the Tribunal (on which see more below) applications for judicial review generate significant legal costs which in the vast majority of cases have to be paid by the party who loses – for both sides. So even if a disabled person or family found a pro bono advocate to help them with a judicial review application it would still be dangerous to issue the application without legal advice and representation (and legal aid – again see below) because of the risk of having to pay the other side’s legal costs – which could be tens of thousands of pounds.

So disabled people and families need lawyers for judicial review. Despite the government’s best efforts, we still just about have a functioning legal aid system in England and Wales and thankfully judicial review is one of the things it will pay for – because in technical terms, all applications for judicial review remain ‘within scope’. Legal aid is subject to two tests – means and merits. Firstly, applicants have to show that they have very little money (‘means’) in terms of both income and savings. The legal aid means test is complicated and specialist solicitors will help with it. It is important to note that in children’s cases, it will very often be the means of the child that are assessed rather than the parent(s) – so ‘ordinary’ families can often access legal aid. Of course sadly many disabled adults and many families with disabled children live in poverty and so legal aid eligibility may not be a problem. The second test for legal aid relates to the merits of the proposed case and that is something lawyers can and will address.

What does legal aid bring if it’s granted? Firstly, it pays your own lawyers fees. Secondly and more importantly, it provides ‘cost protection’ – meaning that if you lose then you won’t have to pay anything towards the other side’s legal costs, unless you or your lawyers have done something unbelievably stupid (in the hundreds of cases I’ve been involved in I’ve never known a costs order to be made personally against a claimant who has legal aid, although it’s important to note that it is possible). So legal aid is almost essential to bringing a claim for judicial review. I say ‘almost’ because there are some other innovative ways to fund judicial review cases and get costs protection – there is a concept called a ‘protective costs order’ where the court can limit or remove the costs a party has to pay if it loses, and lawyers may still sometimes act on a ‘no win no fee’ basis. Specialist solicitors can advise on these issues.

What does an application for judicial review involve? Well in many ways I’d suggest it is far less onerous for the claimant(s) than appealing to the Tribunal – something far too many families with disabled children end up doing at least once. Most of the legwork will be done by the lawyers and it is up to each claimant to decide the extent to which he or she wants to be involved in the claim beyond ‘giving instructions’ (telling the lawyers what you want them to do for you). 

Judicial review cases are almost always decided ‘on the papers’ – i.e. there is no oral evidence. So disabled people and families will provide their evidence to the court in the form of a written witness statement which their lawyers will produce and will not have to give evidence orally in court. The process for the application has two stages. First the court decides whether it will grant ‘permission’ – ie allow the claim to proceed to a full hearing. Permission should be granted where the claim is arguable and there is no other reason like delay (see below) to refuse permission. At the permission stage (or even earlier, perhaps on the day the case is issued) the court can grant ‘interim relief’, requiring something to be done or not done by the public body until the claim is finally heard. A good example of interim relief is the order reported this week requiring Salford to continue to provide transport for disabled people to services. This is the kind of interim relief which is often granted – an order to preserve the ‘status quo’, in other words keep things as they were before the decision was taken until the application can be heard.

If permission is granted then there will be a substantive hearing of the claim, usually lasting one day in simpler cases, stretching up to perhaps a week or longer in the most complex cases. After the hearing, the court will either dismiss (meaning the decision challenged stands) or allow the application. If the application is allowed (i.e. the claimant wins) then the court moves on to decide what ‘relief’ to grant. This often involves a declaration of what the law requires which the public body is expected to (and almost always does) comply with. The court also frequently issues ‘quashing orders’, which essentially delete the decision challenged and put things back how they were before the decision was taken. In rare cases the court may make a ‘mandatory order’ requiring the public body to act in a certain way (for example to provide speech and language therapy specified in a statement / EHC Plan) or require the state to pay damages – generally only where there has been a breach of a claimant’s human rights as protected by the Human Rights Act 1998 and then only in relatively modest sums. 

So judicial review is a powerful remedy. Yes, the main ‘relief’ granted does not force the state to act in a particular way – but in practice it is rare for a public body to lose a judicial review claim and then try to re-make the decision and go ahead regardless. A notable example of a successful judicial review stopping a public body in its tracks is the challenge to Birmingham’s decision to move to ‘critical only’ adult social care. As a result of a claim brought by four disabled people and their carers and the court’s orders, tens of thousands of severely disabled people in Birmingham with ‘substantial’ needs are still getting vital services. 

Which cases are suitable for judicial review? In short, cases which are serious and urgent and where there is no other effective remedy. Judicial review is the ‘remedy of last resort’ – so if there is another effective way to get a problem resolved it must be used. The most obvious example here is the Tribunal – the Administrative Court will almost never grant permission in a claim where there is a right of appeal to a Tribunal. The new SEN scheme has (bizarrely) preserved the approach to the Tribunal of the old system – so there is only an appeal right to the Tribunal in relation to whether a child or young person needs an EHC Plan and the educational contents of the Plan. If your dispute relates to one of the matters specified in section 51 of the Children and Families Act then you must appeal to the Tribunal – otherwise the Tribunal has no power to resolve the dispute. So to emphasise – there is no appeal right in relation to disputes concerning health or social care provision in EHC Plans, nor other related issues such as whether a Direct Payment should be made to the young person or family.

What about complaints? There are formal complaints processes for Local Authorities and health bodies, ending up with the Local Government Ombudsman and Parliamentary and Health Services Ombudsman respectively. Complaints can be very effective and are particularly appropriate for getting redress (including financial compensation) when things have gone wrong in the past. However:

  1. The Ombudsmen are not well placed to resolve disputes about what the law requires. For example, it will need to be the court not the Local Government Ombudsman that decides how wide the get-out clause is for Local Authorities in relation to the new SEN Direct Payments
  2. Complaints processes take a very long time to resolve.
  3. The powers of the Ombudsmen are much more limited than those of the court – for example, there is no power to order or recommend any kind of interim relief while a complaint is progressed.

Every case needs to be carefully considered on its own merits to decide whether judicial review is appropriate, with specialist advice taken. However as a very general rule, in my view judicial review would be likely to be the appropriate remedy where there is a serious and urgent ‘live’ dispute which relates not just to ‘maladministration’ but to an arguable error of law on the part of the public body.

A key reason not to get the right remedy from the outset is that judicial review is supposed to be a speedy process and there is a burden on the claimant to issue proceedings as quickly as possible and no later than three months from the date of the decision being challenged (note – the date it was taken, not the date the claimant knew about it). Claimants also need to comply with the ‘Pre-Action Protocol’, which in particular requires a ‘letter before action’ to be sent to the defendant giving them (typically) 14 days to respond and put things right before the application is issued.  It is possible to get the deadline extended but the court will only allow this if there is good reason and it is not unfair to the defendant.

So the essential message is that disabled people and families should take specialist advice on whether they have a claim for judicial review as quickly as possible. I have never known a disabled person or family take legal advice too soon, but sadly I’ve known many wait far too long to get advice. It’s hard enough taking the state to court without also having to persuade the court to hear the application ‘out of time’ if this can possibly be avoided. 

Where should this advice come from? It needs to come from a specialist solicitor who spends their time advising and representing disabled people and families in applications for judicial review. I have put together a list of some of the specialist solicitors with disability expertise at the end of the ‘Using the Law to Fight the Cuts’ paper I wrote with Kate Whittaker. This list is now a little out-of-date (an update to the paper is due this autumn) but many of the main firms are on there with their contact details. 

I hope this (long) post has shown that judicial review can play a vital role in making rights real for disabled people and families. I would love there to be no need for disabled people and families to take the state to court – but back in the real world of cuts and flawed decision making it will always be necessary to have this safeguard. Not only can judicial review achieve a remedy in individual cases, but also those bringing judicial review applications are performing a wider public service. Applications for judicial review often result in major policy changes (like the Birmingham case above) – and even where they don’t, there is a general public interest in promoting the rule of law by making sure decisions and actions of the state are subject to proper scrutiny. Judicial review is a good thing, notwithstanding what the current Lord Chancellor might think.

More information on how judicial review works is available from the fantastic Public Law Project. I also found this great short guide on the Leigh Day website.

As always comments and questions are welcome below.