Judicial review – some greatest hits

by stevebroach

I blogged over the weekend about judicial review as a key tool for making SEN and disability rights real. I thought it might be helpful to set out a few ‘greatest hits’ – cases which show different aspects of the way judicial review works as a force for good. 

Before my hit list though – I’m grateful to @bendygirl for highlighting on twitter something I forget to say in yesterday’s blog. The vast majority of judicial review cases never get anywhere near a hearing. Very many get sorted by one or more letters sent by the claimant’s solicitors to the defendant. You would be amazed how many cases I see where there have been disputes between disabled people or families and public bodies running over many years which are suddenly resolved when a formal letter before action gets sent. 

Other cases get sorted out between the parties after the case has been ‘issued’ (meaning the claimant’s papers setting out their case are sent to the court) but before a final hearing. Sometimes this happens on the same day, sometimes the same week, sometimes a few months later – but these cases generally do settle, and almost always with the claimant getting some kind of benefit from the deal.

I can think off the top of my head of cases which settled post-issue in areas as different as SEN transport, social care assessment and care planning and cuts to short break services for disabled children. Although it’s great when cases settle one problem it causes is a lack of publicity – ‘Disabled person and local authority sort things out sensibly between themselves’ not being the greatest newspaper headline.

So the point I’d want to stress is that these cases are just the tip of the judicial review iceberg, and each stands for many others where the judicial review process helped sort things out without the drama of a court hearing in the case. There is also a huge pool of cases I could have chosen where judicial review has worked to resolve the problem which led the case to come to court. Now, for that list:

  1. R (W, M and others) v Birmingham CC – I’ve put the Birmingham case first because I think it may be the recent judicial review case that has had the most dramatic wider impact. Birmingham had decided to move its adult social care threshold to ‘critical only’. This would mean that all disabled adults whose needs were rated as ‘substantial’ under the statutory guidance (which is extremely high) would no longer get those needs met. Four disabled adults and their parents challenged the decision on the basis of breach of the public sector equality duty (Equality Act 2010 section 149) and a flawed consultation process and won their case on both grounds. Having fought the case hard, Birmingham decided not to appeal, reinstated the services for people with ‘substantial’ needs – and never attempted to move to ‘critical only’ again. Solicitors for the claimants were Polly Sweeney at Irwin Mitchell and Karen Ashton at Public Law Solicitors.
  2. R (JL) v Islington LBC – JL is the case that finally made everyone realise that disabled children had a right to social care services. Islington had introduced new eligibility criteria which resulted in a massive cut to JL’s short break care package. The High Court held that this was unlawful for a wide variety of reasons – but perhaps most importantly because the criteria did not recognise that JL had a right to the services he was receiving under section 2 of the Chronically Sick and Disabled Persons Act 1970. Not only did the judgment result in JL getting his care package restored, but also Islington and pretty much every other Local Authority has had to review its eligibility criteria to make sure it complies with the law. Solicitor for JL was Mitchell Woolf at SCOMO.
  3. R (KM) v Cambridgshire CC – I’ve put in KM because it’s a case which went to the Supreme Court (extremely rare) and because it’s a great example of a case where the claimant lost (just) but the judgment has had a positive wider impact. KM and his mother challenged the amount of money offered to him as a social care Direct Payment which had been generated using a ‘RAS’ – Resource Allocation System. The Supreme Court held that the amount of money paid to KM was more than sufficient to meet his needs and so the decision in his case was not unlawful despite the flaws in the decision making process. However the wider importance of KM is that it confines the use of ‘RASes’ to being merely a ‘starting point’ in the process of working out how much funding a disabled person requires and re-emphasises the absolute legal duty to ensure all ‘eligible’ social care needs are met – ie the CSDPA 1970 duty which is brilliantly summarised by Lord Wilson in the judgment. Solicitor for the claimant was again Mitchell Woolf at SCOMO.  
  4. R (G) v Southwark LBC – G’s case changed the law on Local Authority duties to homeless teenagers and other children who need accommodation away from their families (including disabled children). It is also a great example of how you sometimes need to ‘dig in’ to get success – G had his judicial review application dismissed in the High Court and lost his appeal 2-1 in the Court of Appeal, but all five members of the House of Lords (now the Supreme Court) who heard his case agreed with him that Southwark had acted unlawfully in refusing to accept that he was owed the duty under section 20 of the Children Act 1989. This is a key case for disabled children because it shows that they have an absolute right to be accommodated and ‘looked after’ by their Local Authority if their needs can’t be met at home for whatever reason. Solicitor for was Oliver Studdert at Maxwell Gillott.  
  5. R (Ali) v LB Newham – I chose Mr Ali’s case not because of the subject (although accessible paving is clearly very important for people with visual impairments) but because of what the Judge says in the judgment about non-statutory guidance. There is a vast amount of SEN and disability guidance which is non-statutory, i.e. issued by a Minister but not backed by an Act of Parliament giving it legal force. Does this guidance have to be followed? The answer was always thought to be no – but in Ali the court held it did, because of its very particular features – see paragraphs 39-41 of the judgment to find out why. Solicitors for Mr Ali were Leigh Day.
  6. R (RO) v East Riding of Yorkshire – RO is a great example of the courts cutting through what seems like a complex legal issue to make a very simple finding. The dispute in RO was about whether a disabled child who was moving to a residential special school was still accommodated under section 20 of the Children Act 1989 and therefore entitled to be treated as a ‘looked after’ child who would then have the leaving care entitlements once he turned 18. The Court of Appeal said yes – and the reasons given mean that the majority of residential special school placements where there is social care involvement in the placement and / or funding will also be made under section 20 – a very important right for this group of disabled children. Solicitors for the claimant were Coram Children’s Legal Centre.
  7. Birmingham CC v Clue – Clue is about a particularly vulnerable group of families, those with no recourse to public funds as a result of their immigration status. In a genuinely groundbreaking judgment, the Court of Appeal decided that all these families have a right to basic Children Act accommodation and support from Local Authorities, so long as they had outstanding immigration applications which were not obviously abusive or hopeless. Clue is part of a run of recent cases (see most notably ZH (Tanzania), the leading case on children’s best interests) where the courts have been prepared to put the welfare of children above other factors, for example immigration control. Solicitors for the claimants were again Public Law Solicitors
  8. McDonald v UK – Mrs McDonald’s case is another example that at least some justice can be done when you ‘dig in’ and keep fighting. Mrs McDonald is a former prima ballerina who now has a medical condition which means she needs to go to the toilet frequently at night. Her Local Authority decided to take away funding for her nighttime carer and provide her instead with incontinence pads. Mrs McDonald’s judicial review challenge failed in the High Court, the Court of Appeal and the Supreme Court. However she took the part of her case which alleged a breach of Article 8 ECHR to the European Court of Human Rights and won on part of that case and was awarded damages. The finding that it is a breach of a person’s human rights to withdraw care from them without a lawful re-assessment is in my view very important for the wider disability movement and the fight against social care cuts. Solicitors for Mrs McDonald were Disability Law Service

Those paying attention will note that I have not included many cases in the list dealing with education issues. There are several reasons for this. Firstly, most SEN cases go through the Tribunal system (First-tier and Upper Tribunals) rather than being brought via judicial review. There are lots of good Upper Tribunal SEN cases too but they will have to wait for another blog. Secondly, in my experience very many education cases get sorted out in advance of any final hearing – this happens even more often than in other cases I take on. If anyone can think of good recent education judicial reviews which made a difference to the claimant and / or others, please post details in the comments below. 

A note on judicial review case names. The recent cases all start with R (Name). The R stands for ‘Regina’ and shows that the application is brought in the name of the Queen – a legal formality. The name in brackets is the name of the claimant – or in our world generally the initials, because (important point) most claimants in SEN or disability cases will get anonymity ordered by the court if they want it. The defendant’s name then follows on the other side of the ‘v’ (it’s said ‘and’ by the way, not ‘versus’ – so R (JL) v Islington is said ‘JL and Islington’). In the SEN and disability world, the defendant will often by the Local Authority, and the letters after their name explains what type of authority they are – so Birmingham is a ‘City Council’ (CC), Islington is a ‘London Borough Council’ (LBC) and so on.

 Thoughts on the ‘hit list’ and other judicial reviews in our area which merit wider attention welcome in the comments below.