Tag Archives: judicial review

Judicial Review

Ways to bring public bodies to account.

Public law remedy

 

‘Public law’ is that body of law which governs the operation of public bodies, such as local authorities. This contrasts with ‘private law’ which is the law governing activities between individuals.

Thus care proceedings are ‘public law proceedings’ because they involve an application by a public body, the local authority. But disputes between parents over where their child should live are called ‘private law proceedings’ because no public body is involved.

A remedy in public law is ‘judicial review’ (JR). You can apply to the court to ask that a public body, such as local authority is forced to do or to stop doing something because they are acting unlawfully, by being unreasonable or irrational.

It is defined under the Civil Procedure Rule 54.1(2)(a) as a claim to review the lawfulness of –

  • an enactment; or
  • a decision, action or failure to act in relation to the exercise of a public function.

There is a two stage process in applying for JR. At the first stage you will seek the court’s permission to make the application. Many applications will fall at this hurdle. If you get permission your application then goes before a judge who will hear arguments and decide what order, if any, to make.

 

Grounds of Judicial Review

There may well be some overlap between these grounds.

  • llegality or unlawfulness –  a failure to act within the law.  Did the decision maker understand the law they were applying? Did the decision making apply the correct law? Did the decision maker fail to take into account relevant issues?
  • Irrationality – did the decision maker reach a decision so unreasonable that no reasonable decision maker could have made the same decision?
  • Procedural impropriety – did the decision maker act fairly?  Was the decision maker biased?

 

Limitations of JR as a means of righting wrongs.

The first difficulties are practical ones:

  • JR is considered a remedy of ‘last resort’ – you will be expected to have tried other avenues to resolve your problems first and your application will not succeed if the court thinks you have failed to do this.
  • The time limits for making an application are very short and very strict. See CPR Part 54.5(1). You must make your application for permission to apply for judicial review promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.

JR is also not about ‘righting wrongs’ but is a way the judges check that the decision making process was fair.  So the judge will not be examining the merits of any particular decision by a public body, but only if they acted in accordance with the law.

Therefore, even if you are successful in your application for JR this is not a guarantee that the LA will ultimately make a different decision in your case – only that the court will tell them they need to think again. 

 

Remedies

  • You can get a declaration that a public body has acted unlawfully or an injunction to stop them from acting unlawfully.
  •  A claim for judicial review may include a claim for damages, restitution, or the recovery of a sum due, see CPR 54.3(2).

Damages as a remedy

There  is no right in judicial review to claim damages for losses caused by unlawful actions of a public body.  It is only possible to receive damages in judicial review claims if there is another established cause of action such as breach of statutory duty, misfeasance in public office or a private action in tort. We shall look at these in more detail below.

See section  31(4) of the Senior Courts Act 1981

 

You cannot use JR to try to prevent a LA issuing care proceedings

An important point to note is that parents cannot try to stop either EPO or care proceedings by making an application for JR – see the case of R v Gloucestershire CC [2003] heard by Munby J (as he then was).

  • JR Is a remedy of last resort and it should not be used when there is another effective and convenient remedy available – i.e. contesting the care proceedings in the family court;
  • JR is a blunt and unsatisfactory tool when the matters in issue are as sensitive and as difficult as they usually are in care proceedings;
  • the greatest possible caution is called for when the purpose of JR is to restrain the commencement of proper proceedings in a domestic court which has jurisdiction.
  • The family court should never feel inhibited from acting urgently to protect the interests of children.

But there are limited circumstances where you can apply for JR when care proceedings are ongoing

See the case of H, R (on the application of) v Kingston Upon Hull City Council [2013] EWHC 388. It is possible, but it will be rare:

There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

Complaints against a public body – a parent’s advice and perspective

We are grateful for the comments of one of our readers ‘C’  who has not had a good experience of social work intervention, nor found that his complaint was dealt with either quickly or competently. He eventually took his complaint to the Local Government Ombudsman and found their response unhelpful. What happens when you have reached the end of the complaints process but you still don’t think you have achieved resolution of your complaint?

For discussion of the various legal remedies against mistakes or poor performance of a public body, see this post. 

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

One of the greatest inhibitors in terms of application for Judicial Review is that the decision must almost always be challenged within 90 days – otherwise the judge may rule you out of time.

Individual social workers or hospital professionals registered with Health and Care Professions Council can be investigated by them for malpractice. All members have a duty to follow a code of ethics. So it is worth pursuing things there.

With regard to Freedom Of Information requests,  I would discuss the best way forward here, with the Information Commissioner’s Office. There are exemptions to your receiving personal information but these can be considered and overruled by the  (ICO).

If names were altered  and logged inaccurately, etc. then these are breaches of the Data Protection Act  which the ICO are supposed to police. They are toothless and pettifogging… but if you persist and manage to drill your way through to the upper levels of management, you can get a more sympathetic ear as they are interested in any cases of flagrant data injustice which might end up in them getting stronger powers in data protection from the government. You can sometimes get access to Data Subject Access Request information that is exempted, if the data may be required for future legal proceedings.

Contact the ICO on 0303 123 1113 and open a case with them. Press them to investigate it. Copy everything to your MP. [The professionals] will not want to appear uncompliant in the eyes of the ICO as the ICO is able to hand out hefty fines to corporate bodies. Force them to acknowledge your issue.

Do your best to be clear and concise in your dealings with these people. Remember they are dealing with this stuff all day, every day… and have limited patience for your emotion. Even though of course your outrage is entirely justified, it may just become an extra burden for them – and thus hamper your progress.

 

Why do things go so wrong?

In terms of [descrbing professionals as]  lying, cheating and betraying – I realise that it is more likely unconscious, systematised behaviour and so defining it as lying, cheating and betraying may be pejorative. It is inept in the sense that a broken food processer throws food all over the room.  The result is a mess: the solution is to fix the processor. Or to throw it out and go back to chewing.

Isn’t simple human error still misfeasance, when those errors represent breaches in frameworks that they are supposed to comprehend and follow?

I see  how chronic ineptness can be portrayed as simple human error, and is not necessarily ‘conscious’. Mind you, being in a stupor is no defence when driving – so it is difficult to appreciate why it should be admissible when administering the law..

 

And what are the consequences?

The experience of ‘C’ has been that the available remedies are either subject to strict timescales or depend on being able to prove bad faith on the part of professionals, which is difficult to do.

This is a steep track to negotiate with limited funds. It ain’t justice as anyone unaccustomed to bureaucratic process and unlimited time to play with other peoples lives and money, would recognise.

And the consequences are the destruction of any constructive professional relationship and a sense of despair for the parents left without a remedy.

I think bitterness at injustice and lack of closure makes one deaf to rational argument. It is somewhat remarkable that [some parents are] still exploring legal routes, and not investigating home bomb-making, or kidnapping strategies…

As for being a victim, the unfortunate truth of post-capitalism, is everywhere that you pay with your attention. In my complaint, I have helped justify their existence, improved their systems of control, and helped guarantee their salaries. There is no comfort in that.

My heart goes out to [families in a similar position]  – and I fear for them. They seem distorted by unassuageable pain. Whatever the justice of their case, or the LA’s actions, the fruits are only bitterness and despair for everyone except those employed to purvey the misery, and uphold the myth of adversarial justice.