Judicial Review in Education

Contact the education team on info@doyleclayton.co.uk or on 020 7329 9090 and we will be happy to help you.

What is Judicial Review?

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made.

We may be able to help you appeal an education decision at judicial review if it is:

• Irrational
• Unfair
• Discriminatory
• Illegal

Public bodies include Government Departments, local authorities, health authorities, tribunals and schools. Independent schools, or non-maintained schools, cannot be challenged by Judicial Review. Public bodies often contract private companies to fulfil their obligations, if a private body is exercising a public function, it is possible that it could be challenged by judicial review.

In education, a judicial review may be used to challenge:

• A failure of a local authority to put in place the provision outlined in a child’s education, health and care plan
• A failure of a local authority when a child is out of school
• A failure of a local authority to ensure that a SEND child receives adequate school transport
• A failure to follow the recommendations of a review panel in a school exclusion case
• A failure to follow the recommendations of the Office of the Independent Adjudicator
• An admission appeal panel decision where the correct legal test wasn’t applied, or the correct procedure wasn’t followed
• An independent review panel decision where the correct law wasn’t applied, or the correct procedure wasn’t followed
• A university fitness to practice panel decision where the correct procedure wasn’t followed, or the correct standard wasn’t applied

 
Education judicial review - what happens?

It is important to get legal help to support you through the judicial review process. We have explained the process of a judicial review here including what happens and how our experts can support you.  

What remedies can the court give?

 The following remedies are available in proceedings for judicial review:

• Quashing order
• Prohibiting order
• Mandatory order
• Declaration
• Injunction
• Damages

In any case more than one remedy can be applied for. However, the granting of any or all remedies is entirely at the court’s discretion.

Quashing order

A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (‘ultra vires’). The most common order made in successful judicial review proceedings is a quashing order.

If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Or, very rarely, if there is no purpose in sending the case back, it may take the decision itself.

Prohibiting order

A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.

Mandatory order

A mandatory order compels public authorities to fulfil their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is like a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include compelling an authority to make a decision again. 

A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the court to remake the decision within the scope of its powers.

Declaration

A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.

Injunction

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim in injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.

Damages

Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either:

• A recognised ‘private’ law cause of action such as negligence or breach of statutory duty, or
• A claim under European law or the Human Rights Act 1998.

When can discretion be exercised?

The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review.

Time limits for judicial review in education

An application for judicial review must be made promptly. In any event, it must be made within three months of the relevant decision, act, or omission that is being challenged and the time limit is applied strictly.

Litigation costs - who pays?

As with all litigation in judicial review proceedings there is an adverse cost risk. There is a general rule in the English and Welsh jurisdiction whereby the loser pays some or all the winner’s legal costs. 

The Court has a discretion as to whether costs are payable by one party to another and there are specific provisions which guide this discretion. Where the court decides to make an order for costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, subject to the discretion of the court.

We will ensure that you are advised about the different ways of funding your case, both fixed fees and hourly rates; we can put you in touch with a specialist crowd-funding platform, Crowd Justice, and we can work with your insurance company, if appropriate.

'After the Event' insurance for judicial review

After The Event insurance (ATE) provides cover against the risk of having to pay an opponent’s costs, your own disbursements (and, in some cases although this is very expensive, your own legal fees) if you lose the claim.

Generally speaking, ATE is available for claimants.  It gives protection on costs up to a certain level. The premium cannot be recovered from an opponent as part of a costs order if you win. Availability of ATE is decided by brokers on a case by case basis. 

Our education team

The team is lead by Simon Henthorn who is one of the UK's outstanding education lawyers. He has over 15 years’ experience advising schools, colleges, associations and individuals on all aspects of education law, including employment and safeguarding matters. 

Amara Ahmad works closely with all education matters. She is an expert in special educational needs (SEND) and safeguarding she works closely with parents, schools, and charities to ensure that children and young people receive the support that they need to reach their potential in education.

See our education team

Why use Doyle Clayton?

As well as providing high quality, timely and practical legal advice, we believe that the following sets us apart from other law firms:

• High quality service that is recognised in The Legal 500 and Chambers and Partners. Our team of specialist education solicitors is ranked in the top tier by The Legal 500. Our Head of Education, Simon Henthorn, is also ranked as a Leading Individual and Liz Timmins (Legal Director) is ranked as a recommended lawyer in the education sector. You will always be advised by an expert - we do not have trainees or paralegals.
• We are education law specialists. Our education team supports many different educational institutions with their legal, HR and compliance issues, so we understand the challenges you face. Our team includes lawyers who are governors, plus those who have worked in-house at colleges and as a Home Office compliance officers.

Contact Doyle Clayton

If you are looking for help with your judicial review, our experts can help you. To make contact call us on +44 (0)20 7329 9090 or email us at info@doyleclayton.co.uk. Leave a message if required and we will ring you back promptly. We are also happy to advise you by video call if needs be.