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Admission appeals, decisions, and Judicial Review.

Admissions appeals and disputes are well known to be highly contentious and emotive. Once a decision has been made after an appeal has been heard, that decision is final. Whilst is possible for complaints to be made to the Local Government Ombudsman (maintained schools) or the Department of Education (other schools) about an appeal process, generally the only way the decision itself can be challenged directly is by taking Court action. The type of Court challenge instigated in these situations is a judicial review.

It is very important that schools and colleges take all necessary steps to mitigate against the risk of a complaint or Court challenge. The purpose of this article is to consider judicial review, its process and what to be aware of from a litigation perspective.

What is Judicial Review

Most schools and colleges are subject to Judicial review, although that is not automatically the case for private schools & non-maintained schools. A judicial review is a last-resort Court action which involves the Court reviewing the decisions of bodies who are exercising public functions to ensure that they act lawfully and fairly and do not abuse their powers. The traditional grounds for seeking a judicial review are illegality, irrationality and procedural impropriety. The process on the process by which decisions have been made and actions taken, rather than the merits of the decision.

Judicial review proceedings have two stages. A party must first apply for permission proceed with its claim setting out the reasons and demonstrating they have an arguable case to be heard. If the Court felt that at this stage there lacked sufficient grounds to challenge the decision, then the proceedings would end there. If the permission is granted, then the matter would proceed to a substantive hearing on the matter.

Who can apply for judicial review and why?

A person with a sufficient interest in a decision made by a public body may apply for a judicial review. This requirement is quite broad as to who qualifies as a "person with sufficient interest" .

The individual or associated person with a sufficient interest should first look to raise their complaint to the Local Authority or school it is not appropriate to escalate the matter to Judicial Review. Judicial review is a last resort option and should not be taken lightly.

Is there a time Limit?

The time limit for applying for judicial review is as soon as possible but in any event within three months from the date when the act, decision or event being complained about occurred. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action. Often this tight deadline will prove to be a barrier to those wanting to challenge decisions concerning admissions.

How can those within the education sector look to limit Judicial review applications made against them.

You can minimise the risk by ensuring your policies are regularly reviewed, updated, amended and readily available to the parties as required and properly published.

The simple process below can easily prevent procedural issues form occurring and is far too often overlooked by parties.

When you notify parents of the decision to refuse a place at your school, you must tell them:

1. The reasons why you refused admission;
2. About their right to appeal to an independent appeal panel; and
3. How they can appeal

This must include:

1. That appeals must be submitted in writing
2. The deadline for submitting an appeal

You should also tell parents about their right to be represented or accompanied by a friend, or to request an interpreter as well as making any other appropriate arrangement for the conduct of the appeal process.

The onus is on the school or college to make the individual aware of the above, this is a simple exercise that can prevent the matter escalating further and even potentially to Judicial review. Should the appeal process be invoked, it is vital that the school or college ensures that the appeals function for the institution is carried out effectively and in accordance with statutory requirements, even where this is provided by an appeals service as the various legal obligations do not simply transfer to the third party.

Appeals

With admissions appeals, the key thing for schools to look at is the process by which the appeal process and hearing must take including:

1. Checking the admissions policy (including the appeal process) is up to date and published clearly;
2. Checking that the school has applied its admissions policy fairly and properly to the case in hand and not deviated from it.
3. Making sure the appeal process has been properly convened:
   1. That fair arrangements for the format of the appeal have been made;
   2. The panel is independent and fully appraised of all relevant facts of the case;
   3. That the correct admission authority is constituted for the task - this will depend on the type of school; and
   4. That the appropriate timescales are checked and adhered to.
4. Ensuring that the correct 2-stage appeal hearing process itself is/was carried out properly.
5. Making sure the final appeal decision is communicated clearly and within 5 school days.

Whilst it maybe the case that the legal costs and tight timeframe of a court challenge in the form of a judicial review may put potential applicants off proceeding down that route, as can be seen above there is much that a school and college can do to prevent there being any grounds to challenge such a decision and process. Admission authorities may also find some useful guidance here: Admission appeals for school places - GOV.UK

For more information contact Stephen McArdle in our Education department via email or phone on 0333 207 1142. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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