By Kalvin P. Chapman

In 1215 the Magna Carter was signed. King John’s barons forced him to grant Magna Carta, the great charter of liberties that placed the English king under the law. The charter was agreed by John in 1215 at Runnymede meadow and later confirmed in definitive form by Henry III in 1225. It was the real start to the modern legal system and democracy. There were numerous celebrations in 2015 as a consequence of how important this charter is.

One of the most important areas of modern democracy and law is the ability to hold the Government to account. This can be done in numerous ways, such as at the ballot box. However, one of the fundamental means of holding the Government to account is to ask the High Court to review decisions by the Government or a public body or refusals to make a decision by the Government or public body.

Any decision taken or failed to be taken by a Government department or a public body, such as your local council for example, may be the subject of a judicial review if certain criteria are met.

The most important things to remember about a Judicial Review are that:-

1. You must have standing to bring or threaten judicial review proceedings.

2. You must have written to the public body to set out what your complaint is. This is required under the Civil Procedure Rules pre-action protocol for Judicial review; and

3. You must have applied to the High Court for permission to issue a Judicial review in no later than three months for the date of the decision. It must be issued in a timely manner and as quickly as possible. As such, waiting to the last day of the three-month period may result in your application for permission to judicially review the case being rejected.

One of the unfair issues that flows from this is the publication on a website of a decision. This is public and as such you are invariably viewed as having notice of the decision, even if there is probably no way you would have ever seen the decision.

I was recently instructed by a care home. A Council had taken the decision that it would not pay care homes an uplift in the fees paid for residents if that care home had had any complaints registered with the care quality commission. My client had a resident whose family complained almost non-stop for the entire period she was at the home. That resulted in a CQC report saying that the home had received substantial numbers of complaints when in fact every single complaint related to the family of this one resident. The Council therefore rejected my client’s application for the up-lifted fees. They pointed to a webpage that had a notice on it confirming that the fee uplifts would not apply. There was no right to judicial review because the three-month period had elapsed (by a year), despite that the Council had not told my client at the time of making the decision (a review would have attacked a much wider set of arguments in the Council’s decision, I just highlight the most unfair aspect of their decision).

There are various other scenarios where a potential client may not have known about a decision (because, for example, it had never been published) but a Judicial Review application is rejected because it is outside of the three-month period. It is at times frustrating and exceptionally unfair. But such applications do get rejected for this reason.

So, if you receive or see notice of a decision and you want to hold the decision maker to account, do not delay. Do not write your own letters. Get a solicitor and start the process urgently. The three-month period does not start when you receive responses from your letter writing. It starts from the moment the decision is made, even if you were not told of the decision at the time it was made. As with everything, this is complex and not all cases will be decided in such a severe fashion, but you have to act as if it will be.

So, once you instruct a solicitor a letter of claim must be drafted pursuant to the pre-action protocol. This is very important. Many decisions are reversed because of receiving a letter of claim. Judicial Reviews are very expensive. A public body will always wish to settle this without expensive judicial Review proceedings being instigated if they possibly can. They can only do this if you bring the complaint to their attention with a detailed explanation of why you think the decision is wrong.

The letter must be sent with enough time for the public body to investigate and respond, keeping in mind the need to issue the application for permission to be issued well within the three-month deadline.

In 2011 I was once instructed to proceed with an application for permission to judicially review a decision made by the Child Support Agency (as it then was). We had a lot of work to do. The witness statements had to be produced and included with the application for permission. It was a lot of hard work. Two weeks after sending the letter, the CSA’s solicitors responded to say that the decision taken and subject to our proposed application had been reversed. The client got what he wanted, though preparation for the application had cost him a lot of money.

So, when preparing to instruct a solicitor, you must remember that the decision might be reversed, but that the case should still be prepared for the application in case the decision is not reversed. The costs’ consideration of this should be considered carefully.

A public body decision can be reviewed by a court if the decision was:-

1. Made in error;
2. Unlawfully made;
3. Irrational.
4. About you or affected you materially.

Made in Error

This may come within (2) also. A decision made in error may also have been made unlawfully.

Error of fact is a relatively new heading. It is normally an error of law that is used. Examples could be a decision being made that someone is a child when in fact they are an adult, or a decision being made because someone is an illegal immigrant when in fact they are legally in the UK.

An error of fact should be relatively straight forward. One simply needs the decision criteria (ie. That someone is a child) and evidence that the decision was made in error of the facts (ie produce the birth certificate). If the facts are relatively straightforward, provision of evidence of the fact in dispute may result in the decision being reversed. The difficulties come, of course, where the lines are blurred or where there is little or no evidence of the facts.

You must remember that it is for you to prove the fact and the error that resulted in the decision being made. It is not for the Government/Public body to make your case for you, you must evidence it. That evidence should be collated and presented to your solicitor when you first meet them.

Error In Law

This should be relatively straightforward, but rarely is.

A decision is invariably (but not always) made utilising powers conferred by legislation or regulation. It is therefore for you to evidence that when utilising the conferred powers, the decision maker made a decision (or refusal to take an action/decision) that was contrary to the law. This can be difficult.

I was instructed by a man who claimed his child maintenance assessment had been made unlawfully because evidence showed that the Parent With Care (the mother) was not resident in the UK. The Child Support Agency made a decision that was in error based upon fact (she was not in the country) and law (they applied the terms of s. 44 Child Support Act 1990 incorrectly).

The application of the law can also be undertaken in an unfair or irrational manner (see below). As such, your judicial review might allege an error of fact, an error of law and an irrational decision being made (or refusal to take action or make a decision). It is for you to evidence each heading.

Simply identifying all of the laws that apply to a decision can be very difficult and time consuming. Most public bodies are creatures of statute. So, a Council, for instance, will take almost every decision it takes based upon the conferred powers contained in legislation and regulations. An example would be taking a decision on housing benefit. This is contained in numerous rules, and the prevailing regulations must be identified. The regulations can change. What was law five years ago can have changed beyond all recognition. Changing Government policy, changing of the political party in power and a change in related policy can all lead to a decision being made that is contrary to a decision taken previously. Investigation of the legal powers behind a decision is therefore essential and can at times be very time consuming.

Irrationality

This is the main and principal reason for issuing a judicial review. It is very difficult. You have to show that when the public body decision was taken that the decision was unreasonable. The rules that apply to this are found in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.

The important point to remember is that unreasonable does not necessarily comply with what you find reasonable or unreasonable.

The rule, broadly speaking, is that no reasonable person in the position of the actual decision maker, would make such a decision. It requires all of the relevant facts to be considered. But the rule applies to what a reasonable decision maker would do, not what this actual decision maker would do. It is for this reason that members of the public are advised to only pursue Judicial Reviews on this heading if they have solicitors and barristers who understand the process. It can be a mine-field, so to speak.

Process

The first instance is to make an application to the High Court for permission to judicially review the decision. This requires the right form and supporting evidence. In most cases, supporting evidence will be by way of a witness statement with attached exhibits. These can be very lengthy documents, and the cost of producing them can be quite substantial. This is because both the barrister and the solicitor to ensure that the requirements (as noted above) have been outlined, evidenced and discussed. Drafting a witness statement that covers an entire decision making process can be substantial. For example, the Child Support Agency case I noted at the start of this article required a witness statement that was 120 pages plus attached exhibits. They are not all going to be this substantial, and some are going to be even more substantial than this.

A judicial review can only be brought by some affected by the decision (section 31(3) Senior Courts Act 1981). You need to show how or why the decision (or refusal to take action or make a decision) affects you and you therefore have legal standing to bring the proceedings. A good example is the recent judicial review against the Labour Party for decisions taken in respect of their decisions over the labour leadership. Only Labour members could have brought these proceedings. You must evidence how or why you have that standing.

If granted permission to take judicial review proceedings, then the Court will set out the time table for the case. That is when the real hard work starts. The timetables are almost always going to be fast. That is because the Courts do not allow unfair or wrong decisions stand – that is why there are such critical time based considerations on such cases. It is one of the very few instances where the Courts will be very speedy with a case. Expect to have to undertake a lot of work very fast.

It is highly unlikely that you will find a solicitor that will agree to undertake this work on a no win no fee basis. This is because there is unlikely to be any damages. The outcome of the case can be uncertain.

If you wish to consider a judicial review, please contact Muldoon Britton urgently on 0161 826 6922