What is ‘judicial review’?

The short answer is that judicial review is a form of court action. It is the legal process by which people can force public bodies to comply with the law.

That applies (among others) to the Secretary of State, to maintained schools, to local authorities and potentially to academies/free schools.

Judicial review and maintained schools

Maintained schools are subject to judicial review.

They must comply with the general obligations which apply to any public body (see below) and with specific obligations set out in acts of parliament which require them to act in particular ways.

Some acts of parliament are enforced in specific ways (e.g. an appeal to the SENDIST). But if there is no particular method specified, then maintained schools can be held to account by judicial review.

Judicial review and academies

As explained in another post, it is fairly clear that academies and free schools are public bodies which can in principle be held accountable by judicial review.

But, as that other post also explains, it does not follow from the fact that judicial review is in principle available, that parents/pupils can enforce the funding agreement for the particular academy/free school – that is a separate question.

But even if it turned out funding agreements could not (after all) be relied on in judicial review (which seems to be the Secretary of State’s current view as it happens), that would not make judicial review irrelevant in academies/free schools. That is because there are some general ‘public law’ rules which apply to all public bodies (including thus academies).

My experience of working with parents/pupils on judicial reviews involving academies is that the academies often seem to back down in the face of a threat of challenge – they don’t seem to want legal scrutiny of how they work or of the law (the ‘can of worms’) which governs them.

General issues in public law and judicial review

This is not the place to undertake a full scale introduction to public law and judicial review as they apply to public bodies generally.

But here are some simple pointers:

Public bodies must always, for example:

  • act ‘reasonably’ in everything they do, taking into account anything which is legally ‘relevant’ to the point in issue, and ignoring anything that is ‘irrelevant’
  • give effect to any ‘legitimate expectation’ that they will behave in a particular way in a particular circumstance (i.e. stick to their promises!); See, for example, Nadarajah and another v. Secretary of State for the Home Department [2005] EWCA Civ 1363: “Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.”
  • comply with the rights of basic procedural fairness (what used to be called ‘natural justice’) and
  • if they consult on something, do so in accordance with the general rules that apply to all consultations.

To make a claim for ‘judicial review’, a parent (acting on their own behalf or on behalf of their child) would need to  apply to court:

  • They need to do so promptly – time limits apply
  • They can do so without professional legal assistance, but that would be risky thing to do, particularly given that, if someone brings judicial review proceedings and loses, whoever they have challenged might be able to claim their legal costs.
  • So anyone thinking about challenging an academy/free school by judicial review would be well advised to get professional legal advice, starting with advice from a solicitor.
  • Anyone on a very low income (which more or less includes everyone on means-tested benefits and most children, but excludes everyone else) may well be eligible for legal aid. That means that they should be able to get free assistance in bringing judicial review proceedings and they are protected from the risk of being required to pay the other side’s costs if the case loses.

There are lots of examples of judicial review cases brought by parents/pupils against schools and other education bodies. Parents/pupils have, for example, used judicial review to challenge:

Children (and parents whose income is at or about the level of means tested benefits) may be entitled to free legal help from a lawyer under legal aid in relation to judicial review claims.

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