A judicial review is a legal process that reviews the lawfulness of something that a public body has decided to do, failed to do, or a policy that they follow
They are a different to the Special Educational Needs and Disability Tribunal (SENDIST), as SENDIST will hear appeals about a specific set of issues such as EHCP disputes.
A judicial review doesn’t agree or disagree with the decision made by the public body. Instead, they look at the way the decision was taken, and whether it was made lawfully, fairly and rationally.
If they rule the decision wasn’t made lawfully, was unreasonable, or disproportionate, then the court can order the public body to start over and re-make the decision. Sometimes, this order will lead to a different decision, but it may be that the body reach the same decision again, but in a lawful way.
In some cases the court may make a 'mandatory order’, which means that the public body must act in a particular way. For example, a mandatory order might be made is if the local authority is failing to secure the educational provision in section F of an EHCP, as in that case, the only lawful outcome is to secure the provision.
When a judicial review may be needed
A judicial review may be necessary where there is no other way the complaint could be resolved. For example,:
- The local authority (LA)has agreed to issue an EHC plan but fails to actually issue the final plan, resulting in the child or young person missing special educational provision or schooling.
- The LA fails to secure the provision set out in an EHC plan, resulting in the child or young person missing education.
- The LA has unreasonably decided to stop providing home to school transport, to which a child or young person is entitled, meaning the child or young person cannot get to their place of learning.
- The governing body of a school refuses to admit a child or young person despite being named in the EHC plan (where there has been no formal exclusion).
Starting judicial proceedings
If you are thinking of requesting a juidicial review, it is important to consider:
- Legal assistance
Unlike a SENDIST appeal, where you can represent yourself, it is advised that you seek professional legal advice and/or representation for a judicial review. Public laws can be very complicated and if you lose the case you could be responsible for covering the legal costs for the oposing side. You may be able to apply for legal aid, but there is a criteria for this support that is means tested.
- Trying other processes first
The judicial court will expect you to have tried other methods of resolving your claim first, such as making a formal complaint to the public body, the
Local Government Ombudsman or to
- Timescales for appeal
Judicial review applications must be made within three months of the grounds for the claim arising.
If you would like some more detailed information about judicial reviews and the process, you might find these resource links helpful: