SEND judicial review and how LAs spin tales about “litigious” parents

Over the years, we’ve written a lot at SNJ about the Special Educational Needs and Disability (SEND) First Tier Tribunal. We’ve written a lot less about another form of legal remedy that’s potentially available to parents in certain cases – judicial review.

What is a judicial review?

A judicial review (JR) is a formal legal process where a judge reviews the lawfulness of something that a public body has decided to do, or a failure to act, or a policy adopted by a public body. 

Judicial reviews are a different and separate type of legal remedy to the Special Educational Needs and Disability Tribunal (SENDIST). SENDIST can only take appeals about a specific set of issues – for example, a local authority decision to refuse an EHC Needs Assessment, the content of an EHCP, or potential disability discrimination by a school (although curiously, not disability discrimination by a local authority). 

In appeals about EHC Needs Assessments and Plans, SENDIST 1 examines the evidence and makes the decision for itself - for example, about whether a local authority must carry out a needs assessment, or what special educational provision should go into section F of a Plan. The Tribunal also decides for itself whether a school had discriminated against a disabled pupil.

Judicial review works differently. The Administrative Court doesn’t agree or disagree with the decision made by the public body – it’s not concerned with the ‘merits’ of the decision. 

Instead, the Court looks at the way the decision was taken – and in particular, whether the decision was made lawfully, fairly and rationally (for example, that only relevant factors were taken into account).

If it was, then the Court will only interfere with the decision if it is ‘unreasonable’ (a high bar – outside the range of reasonable decisions open to the public body) - or in some cases, ‘disproportionate’ (a more intensive standard of review, one that’s usually reserved for human rights and discrimination cases). 

If the decision wasn’t made lawfully - or was unreasonable, or disproportionate - then the Court can order the public body to start over and re-make the decision so that it is made lawfully. Sometimes, the order will lead to a different decision – but that’s not inevitable, even if a JR is successful for the claimant.

Very occasionally, the Court might make a ‘mandatory order’, requiring the public body to act in a particular way. In the world of SEND, an example of a case where a mandatory order might be made is if the local authority is failing to secure the educational provision in section F of a Plan – because in that case, there is only one lawful outcome, and that’s to secure the provision.

Judicial Review & SEND

There have been some high-profile judicial review cases involving SEND in recent years, challenging the lawfulness of decisions to cut SEND in Bristol (SNJ article here) and Surrey, ‘banded’ funding systems in Hackney and Waltham Forest, and the Department for Education’s decision to relax statutory local authority SEND duties at the height of the pandemic last year (SNJ articles here, and on the outcome here, and SEND Action's case over SEND funding here

These judicial review claims challenged policy decisions that affected thousands – and in some cases, hundreds of thousands – of children and young people with SEND. The claims met with mixed success – although even in the claims that failed, it’s possible to argue that these JR cases have nudged public bodies into taking subsequent SEND policy decisions in a more measured way.

However, it’s also possible to pursue a JR claim as a remedy for failings in individual cases, including breaches of statutory duty. Examples of these possible situations include:

  • A local authority’s failure to secure all the provision specified in an EHCP
  • A local authority’s failure to issue an EHCP after agreeing to issue one
  • Failure to meet statutory timelines during EHC needs assessment.

This isn’t an exhaustive list by any means – see SOSSEN here and IPSEA here for other potential situations where JR might be an option. 

Should I start judicial review proceedings?

We can’t advise you on whether judicial review is the right step to take for your own family. And when considering JR, there are four important things to bear in mind:

  • You’ll need legal help. As a parent or carer, it’s possible to run a SENDIST appeal yourself. A claim for judicial review isn’t something that you should attempt without legal advice. Public law principles are complicated, and the stakes are too high. If you go it alone and lose, you can expect to end up with a hefty bill for the other side’s legal costs.
  • Legal aid is sometimes available for a JR application – but only under particular circumstances. There is a ‘means test’ for judicial review, which will exclude many working parents, but legal aid can also be available in the name of the child. For young people over 18, it should be their means taken into account.
  • Judicial review is usually supposed to be a last resort. If there are other avenues that could provide you with a solution to your problem in enough time – such as the local authority’s complaints system, or the Local Government & Social Care Ombudsman – then the courts will expect you to try those. If it’s an issue that can be tackled via a SENDIST appeal, you will be expected to use that route rather than a judicial review. 
  • However, don’t assume you can make a complaint and then use judicial review – because as well as being a last resort, judicial reviews must be issued ‘promptly’, and no later than three months after the grounds of claim arise. Your lawyers might be able to get an extension of time, but needing this just makes a hard process harder.
  • Often, a "pre-action protocol" letter sent from a solicitor to a school or LA, threatening judicial review proceedings is all that is needed for action. See more on this from Hayley Mason here

Are parents overly litigious with judicial review claims?

So how often do families of children and young people with SEND actually resort to judicial review about EHCPs? Is there, as is sometimes suggested, a "flood" of SEND-related litigation against beleaguered local authorities? Last year, the Council for Disabled Children (CDC) commissioned some research to find out. You can read their report here, but if you’re short of time, read on…

The CDC surveyed a range of SEND legal firms and other organisations that handle the vast majority of judicial review-related casework for SEND families.

The judicial review process requires the claimant to send a formal letter to the defendant – as mentioned above, a ‘letter before action’, or a ‘pre-action protocol letter.’ The letter outlines the proposed claim, serves notice of intent to pursue judicial review, and gives the public body an opportunity to remedy the issue to avoid the case going to court.

CDC asked these lawyers how many pre-action protocol letters they’d sent to local authorities between March 2019 and March 2020 about EHCPs and the EHCP process. In all, they reported that they’d sent 373 pre-action protocol letters during this period. 

That’s a surprisingly small volume of action. We don’t know how many individual LAs received these 373 pre-action protocol letters, but it averages out at just two-and-a-half letters per local authority per year. Or put another way, less than one pre-action protocol letter for every thousand EHCPs. So more of a trickle than a flood. By comparison, in the same period there were roughly 20 times as many appeals to the SENDIST First Tier Tribunal.

The results of the 373 pre-action protocol letters

So what happened once these 373 pre-action protocol letters were sent? According to the CDC survey, once the pre-action protocol letter had been sent, local authorities then carried out the action requested in the letter – in full - in 91% of cases. In a further 5% of cases, the LA carried out the requested action at least in part. 

So in 96% of JR claims about EHCPs, the LA backed down – usually in full – without families having to engage the courts at all. Nonetheless, local authorities didn’t back down in every case. A few ended up going further.

The organisations surveyed by CDC reported that they’d issued six judicial review claims between March 2019 and March 2020. Of these six judicial reviews, five reportedly resulted in benefit for the child or young person with SEND after the LA had conceded, and the sixth JR was still in process. 

This tells you that at the level of individual EHCPs, the judicial review process can be a very effective remedy for local government failure. 

So if this process is so effective, why aren’t more families going down the judicial review route to get their kids’ SEND provision on track? 

Infographic showing figures available in the article text
Infographic by Tania Tirraoro. Click to enlarge. Copyright SNJ, free to share, contact to reuse

Why aren't there more judicial reviews started?

From the CDC survey, it looks like there are four main reasons.

  1. Many families of children and young people with SEND don’t have the time or the money to go down the JR route.
  2. Even for those families that don’t have the money, access to legal aid is a real issue.
  3. On top of this, the main SEND legal organisations themselves don’t have enough capacity to handle all potential cases.
  4. And there’s another reason why some families can’t harness the judicial review process to remedy failings – many EHCPs are simply too vague. It’s hard to build a claim arguing that a local authority hasn’t arranged the provision specified in an EHCP, when the same local authority has conveniently drafted the EHCP without any specified provision. 

The organisations surveyed by CDC told researchers that they had been contacted by thousands of parents between March 2019 and March 2020, all concerned that their child’s EHCP duties were being breached – but they said were only able to help a fraction of these families.

It’s tempting to dismiss this out of hand. I mean, SEND legal firms would say that EHCP legal duties are being breached in their thousands every year, wouldn’t they? But if anything, it’s likely to be an under-estimate.

Look at the other indicators. Limbo-dancer low LA success rates at the SEND Tribunal (5%). The sky-high percentage of EHCP complaints upheld by the Local Government and Social Care Ombudsman. The frequency with which Ofsted & CQC SEND inspections report serious weaknesses with local area EHCP processes (over 50%). The findings of the Education Select Committee’s 2018-19 SEND inquiry, and the volume of harrowing evidence from families that powered it.

All of this – plus the evidence from the CDC’s judicial review survey – tells you that the quality of local authority decision-making about SEND is often appallingly flawed.

What do local authorities think?

The CDC survey looked purely at the families’ side of the story. They didn’t survey local authority SEND management, or the legal teams that work for them.

But from their lobbying to central government, we know that many local authorities loathe being held to account via judicial review. They want the law changed to make their professional lives easier (of course they do). And when they lobby Whitehall, some of them aren’t afraid to mislead and gaslight civil servants and ministers.

Here’s an excerpt from an August 2020 lobbying letter1  to the Secretary of State for Education, Gavin Williamson:

“We are also now faced with many more legal challenges and local authorities are facing judicial review for not following SEND legislation when in fact we are following the guidance contained in the national code of practice.

“Even before cases reach this stage, local authorities are spending significant time and resources on managing solicitors and pre-action letters because of the raised awareness of SEND issues within the legal community.

“We therefore request an urgent review of the underlying regulations and the code of practice to ensure it removes any ambiguity in expectation which would allow local authorities to ensure best value for the public purse while continuing to meet pupils' needs.”

Letter from Devon CC to Gavin Williamson dated 25 August 2020

Significant time and resources.” Remember the CDC survey? 373 pre-action letters. Just over two per local authority, on average, in a year. 

And if councils were “following the guidance contained in the national code of practice” in the first place, then why did they concede 96% of claims at the pre-action stage before they got to court? 

It isn't “raised awareness of SEND issues within the legal community” that prompts these letters and their outcomes. It’s the serial unwillingness of local authorities to take decisions lawfully, and the serial unwillingness of local authorities to learn from their unlawful decisions.

Let’s go back to the lockdown last summer. In May, the government used its new Coronavirus Act powers to relax many of the statutory SEND duties on local authorities. Families challenged this decision via judicial review – the claim was unsuccessful, and you can read about the judgment here. Although these powers are not currently in use, they remain available to the government to re-implement should they wish.

The Department for Education submitted evidence defending its decision – including reporting correspondence they’d received from local authorities about their SEND situation. This included a letter sent in early April – two weeks after lockdown - on behalf of all the Directors of Children’s Services in the East Midlands to Gavin Williamson MP, the Secretary of State for Education. 

These East Midlands LA executives wanted their statutory SEND duties removed entirely during the pandemic – including section 42 of the Children & Families Act 2014, the duty to secure the educational provision specified in an EHCP, and to arrange the health provision. According to the judgment:

“The letter explained that all the 2014 Act duties remained in place and that this was leading to pressure from parents and carers and threats of legal action, which in a period of “global emergency” was “both untenable and unacceptable.””

From the judgment into the JR against the government's removal of SEND duties. Judgement here

The DfE took this seriously enough to put in their evidence bundle. The evidence appears to have been drawn on as part of the judgment.

“Threats of legal action” from parents and carers - at the very height of the early pandemic, remember – is a bold claim. It’s a claim that can be tested. And it’s a claim that turns out to be pathetically overinflated.

East Midlands LAs spin exposed

I asked the legal teams at each local authority in the East Midlands exactly how many pre-action protocol letters they’d received from claimants about failure to meet duties under section 42 of the 2014 Act, at the point in time between mid-March and early April 2020 - when these LAs lobbied the DfE to have the duties removed. 

The answer is none. Not a single one. 

Between them, these LAs could not provide a single letter – the only credible type of legal threat in this scenario – to back up the claim they made to the Department for Education.

So there weren’t any real, actionable legal threats from East Midlands SEND parents when these Directors of Children’s Services wrote to Gavin Williamson. Did the threats materialise in the weeks after the letter was written? 

No – the East Midlands LA legal teams couldn’t stump up a single pre-action protocol letter about section 42 at any point in time between the first lockdown and the eventual relaxation of the SEND duties at the start of May.

Even once the SEND duties were re-established in full in August, these same LAs reported receiving just four pre-action protocol letters related to section 42 duties for the rest of 2020.

That's four out of more than 27,000 children & young people with EHCPs in the East Midlands region. In our autumn 2020 survey, only 10% of respondents from the East Midlands reported that their child’s EHCP provision had been restored in full at the start of the school year, as it should have been by law.

At the height of the early pandemic last spring, some of the region’s most senior and well-paid council officials told the Department for Education – and indirectly, a High Court judge - that they had received legal threats from parents. By very strong implication, credible legal threats. But in the East Midlands, the evidence suggests that’s not what actually happened. Zero pre-action letters at the early height of the pandemic. Only four letters once schools re-opened in the autumn, despite evidence of industrial-scale violation of statutory duty.

There is something untenable and unacceptable going on here. It’s not the actions of families of children and young people with SEND. It looks a lot like a casual, contemptuous, and contemptible violation of the Nolan Principles, the ethical standards expected of public office-holders.

SEND Review team - please take note

The Department for Education’s SEND Review is still ongoing, 18 months after it started. We know next to nothing about its progress, other than it is expected to result in a Green Paper (draft legislation) for full consultation in the late spring/early summer. We can only hope that its authors apply the same degree of scepticism and rigour to unsupported anecdotes from local authority bigwigs that they apply to each and every piece of evidence from parents and carers.

One of the things that prompted the CDC to run their judicial review survey, is a smouldering perception in the corridors of power – a perception assiduously fanned by local government – that SEND parents are unusually litigious. That trigger-happy families, seduced by "predatory" lawyers, are an unnecessary drain on the public sector.

The CDC survey demonstrates pretty clearly that we’re not. No parent wants a legal battle; most of us don’t have the time, energy, or money to fight them (and good SEN lawyers try to reach an agreement before a tribunal hearing). We just want to raise our kids with the support that they are legally entitled to, with the same lack of fuss as parents whose child doesn't have SEND get to do. Is that too much to ask?

But in case after case after case, parents of disabled children cannot do this, because the rankest, thickest, and richest bin juice of the public sector belligerently stand in the way. And they currently have no incentive to clean up their act.

  1. Letter retrieved from Wayback Machine here

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Matt Keer

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