Effective Challenges to Decision Making - What to do when things go wrong

5. Judicial Review

Judicial Review is a legal process which allows the actions of, or decisions made by, public bodies to be challenged in court. It is concerned primarily with whether a 'fair' process has been followed rather than outcome in the form of the decision.

What types of decisions can be reviewed?

Any decision, act or omission by a pubic body is subject to judicial review. However, a judicial review can only be raised if all other remedies have been exhausted and there are appropriate grounds for challenge.


What is a public body?

‘Public body’ includes any government department (UK or Scottish Government), local authority or any other body delivering public services or exercising a public function.

A list of Scottish public bodies can be found on the Scottish Governments website (http://www.gov.scot/Topics/Government/public-bodies/about/Bodies) and 

a list of UK public bodies can be found on the UK Government's website (https://www.gov.uk/government/organisations).


Grounds of review:

Lawfulness

An act/decision can be challenged on the grounds that the public authority did not have the legal authority to make it/do it.  A decision can also be challenged on the basis that the public body did not apply the law correctly when making the decision.  

A failure to comply with duty or acting ultra vires (‘beyond one's legal power or authority’) may render a decision unlawful even where the effect of the decision is benign or beneficial or the decision was well intentioned.  

e.g. McColl v Strathclyde Council 1983 – the company exceeded their powers to provide water  by enhancing it with fluoride

A public authority also has to ensure its decisions are compliant with Human Rights and    Equality legislation including failure to have regard to Public Sector Equality Duty or a failure to investigate the impact of policy on those with ‘protected characteristics


Procedure

This also often referred to as 'Procedural Impropriety'

It can be in the form of a failure to follow published policy, or a breach of Natural Justice (eg Ridge v Baldwin, [1964]) and is similar to a concept of ‘fairness’

The correct procedure must be followed by a pubic body when making a decision. A decision may be able to be challenged if a  public body:

  • restricts its discretion,
  • deviates from its normal policies/practices when making a decision,
  • fails to consult where appropriate,
  • fails to take into account relevant information,
  • takes into account irrelevant information,
  • gives a false impression of how it is likely to act
  • fails to provide a fair hearing or
  • displays bias,

Irrationality/Proportionality

This ground relies on the concept of 'Wednesbury Unreasonableness', meaning a decision so unreasonable that no reasonable public body could ever have made it.

The test of what is reasonable comes from the case of Associated Provincial Picture Houses v Wednesbury Corporation, [1948]  where “Wednesbury unreasonableness”  was described as being;

‘a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

If a person acts in 'Bad faith', then they will almost always be acting irrationally.

Proportionality

This is a concept that only applies to some types of case and comes from EU and ECHR law where it is frequently employed in the interpretation of treaties

It has some natural overlap with unreasonableness, but has the advantage that it might be a slightly lower threshold than Wednesbury unreasonableness.


What can the court do?

The court cannot change the decision (unless the decision breaches human rights) but can overturn the decision requiring it to be made again. The court can also make a declaration, award damages and make interim orders (e.g. to prevent a decision being enforced while it is under review).

How do you raise a judicial review?

Court of Session in Edinburgh

Judicial review requires permission from the court to proceed - ‘real prospect of success’.

What does it cost?

Judicial Review proceedings can be very expensive. It should be borne in mind that an unsuccessful applicant will be liable for the public body's costs as well as their own.  However legal aid is available for those eligible to meet costs and cover expenses. 

Time Limit

3 months from date of decision/action giving rise to challenge













Legal Advice

Legal Advice can help with issues regarding eligibility, assessment, direct payments and charging for services

It can be particularly helpful if pursuing court action, for example Judicial review requires to be lodged in court of session and an advocate is needed

Advice and Assistance and Civil Legal Aid should be available:

Current figures for Advice and Assistance are disposable income of less than £245 and disposable capital of less than £1,716. 

Civil Legal Aid figures are disposable income of £26 239 and capital of £13,017

Allowances made for dependants and disregards to capital for Pensioners

Eligibility Estimator for CLA  is available at http://www.slab.org.uk/Online_calculators.html