Local Government Law & Judicial Review
Newcastle, Durham, Teesside, Sunderland, Northumberland & North East areas
Judicial review is a type of court proceeding in which a court reviews the lawfulness of a decision or action which has made by a public body.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
There are three potential grounds of challenge:
1) Irrationality – This ground can be interpreted as ‘a decision so unreasonable that a reasonable person would consider it so’. Irrationality has a high threshold. Therefore, this ground can be difficult to meet as it requires ‘something overwhelming’.
2) Illegality – This ground is met if the public body has breached the law in relation to their decision/action/inaction. For example, there may have been a mistake about facts made which suffices as an error in law. Breaches of human rights may also form an illegal decision.
3) Procedural unfairness – This ground would be satisfied if the public body abuses their power and a required procedure is not followed. Public bodies must act impartially, procedures followed must not be unfair or bias, ‘fair hearings’ must be held before decisions are made and often reasons for decisions must be provided.
There must also be no appropriate alternative method available to resolve the dispute other than through judicial review, e.g. if there are internal complaints procedures, then you should use those first, (unless there is a risk of immediate detriment).
Judicial review case examples:
- A claim arose from the failure of a social services department within a local council to assess the needs of a disabled child, despite repeated attempts by the mother. This claim was based upon grounds of illegality (since the local authority failed to complete an assessment which was required by law) and procedural unfairness;
- A claim arose concerning a University who excluded a student where his political stance during a debate was deemed to be unacceptable by the University;
- A claim arose based on the decision of a local authority refusing to undertake a re-assessment of a client in need of community care services and it was argued that improper grounds or reasons had been provided for the refusal of this service;
- A claim arose based on the decision of the parole board in agreeing to release a prisoner early.
What is the procedure of judicial review?
If it is decided that the grounds are met for judicial review, what is known as a ‘letter before claim’ will firstly be sent to the public body concerned. This should detail the facts of the case: i.e. why the claimant believes the decision/action/inaction of the public body is unlawful and should set out what desired action the claimant seeks to be taken in redress.
The public body should be advised that if no satisfactory response is returned within the specified time limit (usually 14 days) then judicial review proceedings will be issued.
If no satisfactory response is received, then an application for permission to pursue a judicial review will then have to be made to the administrative court:
- The necessary paperwork will, be prepared, sent to the court and a copy sent to the public body;
- If necessary, a request for an urgent order may be made to prevent the public body taking further action which would prejudice the case;
- Alternatively, an order may be sought requiring the public body to do something to maintain the position of the individual e.g. keep providing a care package to them. This depends on whether or not the public body agrees to put their decision on hold until there is a final outcome in the case;
- The public body will become known as the defendant and will have the opportunity of responding to the claim;
- A judge will then consider the written arguments and decide whether or not to grant permission to proceed with the judicial review to a full hearing;
- If permission is not granted it can be requested that this decision is reconsidered at an oral hearing, (must be made within 7 days of receipt of the judge’s refusal). A fee would be payable to enable you to do this;
- If permission is granted to proceed with the judicial review to the full hearing, it will have to be prepared by both parties;
- The final hearing could take place a number of months from when the claim was first issued. The length of the final hearing is dependent upon the complexity of the issues involved. The decision will normally be delivered some weeks after the hearing, but in urgent cases the decision may be given immediately.
What are the potential outcomes of a successful judicial review?
- Quashing Order – Renders the original decision/action/inaction void and the public body will be required to reconsider;
- Prohibiting Order – Forbids the public body from taking certain action which the court considers unlawful;
- Mandatory Order – Requires that the public body take certain action;
- Declaration – Could be a formal statement that a legislative provision is incompatible with the Human Rights Act 1998, or that a certain provision is to be interpreted in a particular way;
- Compensation – Damages may be awarded, however, this remedy is rare.
It is important to note that any remedy is discretionary. This means it is entirely up to the judge whether or not to award.
Is there a time limit to bring a claim?
Yes! It is important that judicial review cases are brought promptly. The latest time which a judicial review application can be submitted, is usually 3 months from the date of the decision (although some exceptions do apply).