1) Introduction: an era of fast-changing policy and cuts to public services
If you are either an individual or a campaigning organisation seeking to challenge a decision of a public body, we may be able to help. Legal action should never be your first resort, but if you have tried consultations, complaints, an Ombudsman or mediation as appropriate, going to court may be the last remaining option.
While you should try to resolve the problem informally first, bringing judicial review claims must be done as soon as possible, and always within three months of the decision being made.
2) Public Bodies: legal powers and duties
In order to challenge a decision legally, it must have been made by a public body for instance, a government department, local authority, school, NHS Trust, the police, a prison, a regulatory body etc.
Public bodies can only do what they are empowered to do by law (unlike an individual who can do anything that is not illegal). The law sets out limits within which public bodies must act, and sets out equality duties to which they must pay regard in carrying out their actions. Under equality legislation, every public body must, in carrying out its functions, have due regard to the need:
- To eliminate discrimination and harassment based on race, sex or disability
- To promote equality of opportunity and good relations between persons of different racial groups, men and women, and between disabled persons and other persons
- To take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; to promote positive attitudes towards disabled persons; to encourage participation by disabled persons in public life
If the public body has acted outside its powers or not complied with its duties, you may have grounds for a challenge.
3) Judicial Review: definition
You cannot challenge a decision simply because you think it is wrong. It must be unlawful, and this usually concerns the way a decision is made, rather than the outcome itself. The meaning of unlawful can be complex and fact dependent, but for example, the following examples could potentially be challenged:
- Where a public body has relied on a legal issue as part of its decision making process, and made a mistake as to the relevant law
- An inflexible decision making process, in which the authority had already made up its mind before even considering the evidence, or carrying out a consultation
- If a public body is under a duty to give reasons for its decisions, and fails to do so
If your judicial review is successful, you may get a ruling preventing the public body from implementing its decision, or requiring it to do something (for instance, continuing to fund respite care for disabled children). Irwin Mitchell has won successes for clients denied access to life-saving medical treatment, denied the right to education, or inadequate social care, and have acted in complex cases involving vulnerable disabled adults and children seeking protecting from potential abuse or seeking to challenge cuts to services.
We are specialists in Human Rights law and have acted in challenges made against government decisions and legislation on behalf of individuals, charities and institutions.
4) Things for you to think about
Once you have identified a decision appropriate for legal challenge, there are two major questions to ask:
- Financing - how will you pay for legal costs?
- Resources - does your organisation have the time and capacity to deal with a court case?
a) How can I pay for it?
The general rule is that the losing party will have to pay its own and the other party's costs, although the judge does have a discretion to rule differently if s/he thinks it appropriate. The legal bill for the losing side could be in the region of around £30,000, or more for a complex case.
Legal Aid (Public Funding): If you are an individual, or represent an individual directly affected by the decision, it may be possible to get public funding (legal aid). There is a two stage test for public funding, a means test and merits test.
- Means test: if you are on Income Support, income-based Job Seeker's Allowance, income related Employment and Support Allowance, Guarantee Credit or Universal Credit you will satisfy the income test and will be subject to a capital test; some others on other benefits and/or a low wage may also qualify under the means test. On the Legal Aid Agency website (https://www.gov.uk/check-legal-aid) there is a calculator to assist you do your own means test.
- Merits test: dependent on the strength of your case.
The fact that others may benefit from a favourable outcome to your challenge does not rule out your getting legal aid. However, if you are bringing the action on behalf of an organisation, and cannot put forward an individual directly affected by the decision, you will not meet the public funding criteria.
Emergency legal aid can be processed for you by a specialist form of solicitors who hold a Legal Aid Agency contract. Irwin Mitchell holds LAA contracts in Public Law, Community Care and a number of other categories.
Previously NGOs and other organisations have been discouraged from bringing legal challenges because of the huge financial risks. However, the situation is slightly brighter now as a result of:
- Protective Costs Orders PCO - This is often the most viable option for dealing with the expense of judicial review cases. It is an order which means that, even if you lose the case, you will not be liable for the other party's costs, or else you will only be liable for a limited amount, depending on the resources of your organisation. These orders are helpful in that they make your total financial liability clear from the outset. They will be awarded when the court considers the issues raised by the case to be of high public interest, and does not wish the fear of a costs order to stop the case being heard. A pca only limits liability for the other side's costs: you will still need to pay for your own legal fees.
- Conditional Fee Arrangements ('no win, no fee'): At present, these are hardly ever used for judicial review as the outcomes are far less predictable than personal injury cases and awards of damages are not usually made even in successful outcomes. However in exceptional cases, a solicitor may deem it an appropriate funding model. There is a strong risk that you will not be able to take out insurance to cover costs in the event that the case is lost.
b) Do I have the resources to take on a court case?
Judicial reviews are by their nature urgent proceedings and can be time, energy and resource intensive. You will need to identify someone in your organisation who can be responsible for managing the case and be a point of contact for our legal team, able to supply necessary information at short notice.
Irwin Mitchell may be able to provide initial advice about your case for free. Please get in touch for more information: Mathieu Culverhouse, Public Law Department:
Direct Line: 0161 838 2390