Why Judicial Review matters

There has been a lot of debate in the news and social media about Judicial Review. This is because there a number of changes have been proposed to how Judicial Review will work. A lot of the commentary has all been rather ‘heavy’ on the law and seems to have lost focus on why Judicial Review matters.

Judicial Review in summary

The notion of Judicial Review is actually very simple. It is the process by which the Court considers an act taken by a public body (like a local council) and decides whether that act was lawful, reasonable or approached in the right way.

The Court has a number of powers, including the ability to overturn the original decision and, in some circumstances, to re-make the decision. It is a very powerful tool to ensure that the private individual can ensure that their rights are not violated by any organisation operating a public service.

The Lord Chancellor, Chris Grayling MP, has launched a Bill (a draft law) which would have the effect of significantly reducing the accessibility of Judicial Review. It exposes parties to significant cost risks, means lawyers themselves face sanctions and can effectively prevent anyone trying to help the court in existing Judicial Review cases by ‘intervening’. For example, in a case I ran, the Secretary of State for Education ‘intervened’ to advise the Court about the interplay between Education Act and Children Act duties.

Judicial Review is important because any decision that affects you (e.g. town planning, school closure, road building, hospital closure, airport development) can be brought before the Court for reconsideration.

Why is this relevant in SEN?

The quick answer is enforcement.

The Children and Families Act 2014 introduced Education, Health and Care Plans (EHCPs). Prior to EHCPs children with severe special educational needs (SEN) were supported with a Statement of SEN. EHCPs summarise all of the education, health and social care needs and provision that a child has as a result of their special educational needs. A Statement was the same, but limited to education provision.

Until 2018 both Statements of SEN and EHCPs will coexist until the EHCP completely takes over.

In theory every child will receive the support detailed within their Statement or EHCP and attend the school that is named in their document. In the real world, this does not always happen. If a local authority does not attend to the situation promptly, they may well be faced with Judicial Review proceedings.

The Children and Families Act 2014 has also introduced a number of new elements to SEN law. These new elements, and how they re-focus the need for Judicial Review, are as follows:

• Local Offer – a detailed catalogue of the services that the local authority expects to be available for all children with SEN in its area, and neighbouring areas;A parent may feel that they are now being given the opportunity to access what is detailed with the Offer. A failure by the local authority to ensure that what is within the Lcoal Offer can be accessed may a failure to honour the Offer which, in theory, could be subject to Judicial Review.

• Personal Budgets –the sum of money needed to ‘buy’ the support catered for within the EHCP;Local authorities are allowed to refuse to issue a Budget if it simply too complicated to do so. This is likely to arise when children have a vast array of needs and trying to allocate particular budgets between education, health and social care is near impossible. However, situations are likely to arise where, with some effort, the budgets can be separated but the local authority is simply unwilling to do so.

• Direct Payments – a manner in which Personal Budgets can be administered. These are a payment to parents, or a person they elect, by the local authority to buy all, or a specified element of, the support within the EHCP;Direct Payments are far more restricted that Personal Budgets. A local authority may refuse to make Direct Payments if (for example) it has any reason to consider that the money will not be used to comply with the EHCP and/or in line with the best interests of the child. Whilst local authorities will have a complaints process available if a parent is unhappy about a decision to refuse Direct Payments, this is frankly unlikely to change the position. Judicial Review, therefore, is likely to be the only true method of challenge.

• General Principles – the most notable of which being that a local authority must work to ensure that a child with SEN now achieves their best possible outcome.

The law is new, local authorities are struggling significantly with the implementation of the new law and it is still very unclear how the general principles will, in practice, be honoured. One key question is whether ‘best outcomes’ means that children with SEN should be provided with more than just the ‘adequate’ education to which they were entitled under the 1996 Education Act? It is likely that Judicial Review will provide us with this answer, as it has so often in the past.

Conclusions

Judicial Review is a central pillar to the English justice system. We do not have a written constitutional system – our rules are developed through constantly changes Acts of Parliament. We have central pillars, like the Human Rights Act, but particular laws are ever moving.

Judicial Review ensures that any person who feels that a law has been misapplied, or not followed, to their detriment can ask the Court to fix the situation for them. The above demonstrates how crucial Judicial Review is  within the area of SEN law and why it will continue to be so.

The House of Lords has told the House of Commons to reconsider the Bill it has prepared to change Judicial Review. This is the second time that they have done so with this Bill. It’s worth noting that the Lord Chancellor has already admitted to misleading Parliament about the changes he is proposing.

With a curtailed Judicial Review system, the fundamental ability to protect one’s ‘rights’ will be significantly limited. This is not exaggerating the issue; it will be the very real outcome of the current changes.