Sometimes local authorities fail to meet their legal obligations relating to Education Health and Care Plans (or EHC plans). 

Other areas where they fail to meet their obligations include EHC needs assessments, annual reviews, providing or funding provision stated in an EHC plan and school transport to name but a few. To provide a specific example, a local authority could unlawfully fail to ensure that the provision stated in an EHC plan is provided to the child or young person named in the plan.

In those circumstances, education law solicitors at Birkett Long can prompt action from the local authority by preparing a judicial review pre-action protocol letter, to be sent on behalf of the persons with parental responsibility of an individual with special educational needs or a young person with special educational needs.

In our experience, most issues are resolved by a letter sent from a solicitors firm to the local authority. 

Submitting a claim for judicial review

If a judicial review pre-action protocol letter does not achieve the desired result, you may have to submit a claim for judicial review. Judicial review is a procedure where the courts examine the decision of a public body and decides whether that decision was made in a fair, reasonable and lawful way. We can assist you with this and guide you step by step through the process.

Judicial review concerning education matters – what is the process and how can the Education Team at Birkett Long help?

The education law solicitors at Birkett Long would prepare a claim and all supporting documentation and file it at the High Court (more specifically the Administrative Court, a specialist court within the Queen’s Bench Division of the High Court), together with the Court fee. The Court will then seal the claim form and give the claim a claim number.

When determining whether permission for judicial review should be granted, there will be no oral hearing unless you have instructed us to apply for an interim injunction after taking legal advice. The sealed claim form must be served on the opponent within 7 days of the date of issue. The timescale is shortened if interim relief or an injunction is sought.

If permission for judicial review is refused, the Court will serve an Order explaining the reasons for refusal. There is an option available to request a renewal hearing. If this is justified we will ask the court to arrange a renewal hearing at which it can be argued that permission should be granted. The application for a renewal hearing must be lodged with the Court within 7 days of the refusal.

If permission for judicial review is granted, the opponent has 35 days after service of the Order granting permission by the Court in which to put together its grounds of resistance. In an urgent case the timescale may be shorter.

If parents of children or a young person are successful in a judicial review claim, a court can order the local authority take a particular action or change a decision already made and costs associated with the claim can be recovered. If you are unsuccessful, the opponent’s decisions stands.

What matters can be challenged by way of judical review?

Some of the legal obligations that local authorities have, which they can be challenged on via judicial review if they fail to meet such obligations include:

• Informing you if they are going to carry out an EHC needs assessment within 6 weeks of the day you requested the assessment
• issuing a final EHC plan within 20 weeks of the day an EHC needs assessment was requested
• providing or funding provision which is specified in an EHC plan; and
• letting you know if they’re going to issue an EHC Plan within 16 weeks of the day an EHC needs assessment was requested

We can assist you with bringing a judicial review claim connected to the above, although we always aim to bring a successful outcome for our clients before a claim is issued if possible.

Examples of unlawful behaviour which are challengeable by judicial review include:

• a local authority not providing appropriate or full-time education
• a local authority unlawfully refusing to provide or fund home-school transport; and
• the governing body of a school refusing a child or young person admission to a school despite the school being named in the EHC plan (where there has been no exclusion)

If a local authority or other public body is not acting lawfully and you would like to take action, including commencing judicial review proceedings, please contact Thomas Emmett, Head of Education, on 01245 453847 or email  thomas.emmett@birkettlong.co.uk