Understanding Judicial Review: A Tool for Parents to Challenge Local Authority and School Decisions

As parents, you want the best for your child’s education, and sometimes decisions made a public body may seem unfair or contrary to your child’s needs. Whether it’s about school placements, support for special educational needs (SEN), or exclusions, and these decisions can have a significant impact on your child’s future. In such cases, one powerful legal tool available to parents is Judicial Review.

But what exactly is Judicial Review, and how can it help parents?

What is Judicial Review?

Judicial Review is a process where the High Court examines the lawfulness of a decision made by a public body, such as a local authority. It does not focus on whether the decision was “right” in the opinion of the Court, but rather on whether the proper process was followed and whether the decision complies with the law.

Judicial Review allows the High Court to ensure that public authorities act within their powers and adhere to principles of fairness, reasonableness, and legality. It is a means of holding these bodies accountable when they fail to take an action or make decisions in a fair, reasonable and lawful manner.

When Can You Use Judicial Review in Education?

Judicial Review can be used to challenge actions and decisions made by public bodies that affect your child’s education. Common examples include:

School admissions: If you are unsuccessful at a school admission appeal, you may have grounds for Judicial Review if the appeal process/ decision-making was procedurally incorrect, unlawful, unfair or the appeal panel failed to consider relevant factors.

Failing to secure SEN provision: Parents of children with SEN may challenge decisions that deny or limit necessary support, such as failure to provide provision set out within an Education, Health, and Care Plan (EHCP), or to admit a child to the school named in their EHCP.

School exclusions: If your child is permanently excluded from school and you are unsuccessful in appealing this decision, Judicial Review could be a way to challenge this, if the appeal process/ decision-making was procedurally incorrect, unlawful, unfair or the appeal panel failed to consider relevant factors. Alternatively, you could have grounds for a Judicial Review if the school is informally excluding your child from school. 

Not providing an education: If your child is unable to attend school and the local authority has not made suitable alternative educational provision, their failure to do so can be challenged via Judicial Review.

Not providing any or a suitable provision of home to school transport: Local authorities have a legal duty to provide some children with home to school transport, which must be suitable. If this duty is not complied with then Judicial Review can be used to challenge the failure to provide transport or a failure to provide suitable transport. 

The Process of Judicial Review

1. Pre-Action Stage: Before filing for permission for Judicial Review, parents must usually follow the “pre-action protocol,” which involves writing to the  public body, setting out your concerns and giving them a chance to respond. This is often the point where matters can be resolved without needing to go to Court.
2. Permission to Proceed: If the matter isn’t resolved, you can submit a Judicial Review Claim to the Court, requesting for permission to proceed with a Judicial Review. The Court will assess whether there is an arguable case to decide if permission to proceed will be granted. It’s crucial to act quickly, as Judicial Reviews must typically be filed within three months of the action/ decision complained of
3. The Hearing: If permission is granted, the Court will hold a full hearing to consider the action/ decision complained of, and to determine which party will be sucessfull. If the Court finds the action/ decision was unlawful, it can quash the decision, forcing the public body to reconsider it. The Court can also make what is known as a mandatory Order, forcing the public body to take certain actions to rectify the unlawful situation. In urgent cases the Court can also make interim Orders, which have to be complied with before the full hearing for example to ensure a certain provision is in place until the hearing, so they do not miss out on it, if it had previously been in place.

Why is Judicial Review Important?

Judicial Review acts as a vital safeguard for parents, ensuring that public bodies make decisions in accordance with the law and do not exceed or abuse their powers. It helps promote accountability and can compel local authorities to act fairly when making decisions that directly affect a child’s education.

However, Judicial Review is a complex process, so it is crucial to seek expert legal advice early. Working with a lawyer who specialises in education law can help you navigate the process, understand the strengths of your case, and determine whether Judicial Review is the best option for your child’s circumstances.

Final Thoughts

As a parent, it can feel daunting to challenge decisions made by a public body. However, Judicial Review gives you the ability to ensure that decisions affecting your child’s education are fair, reasonable, and lawful. By understanding your rights and seeking legal support when needed, you can take action to protect your child’s educational future.

If you believe that a decision made about your child’s education is unlawful or unfair, our team of experienced education lawyers can provide the advice and representation you need. If you would like discuss your matter with one of our SEND lawyers, please contact us on 0333 202 7175 or education@hcbgroup.com