Families with children or young people with Special Educational Needs and Disabilities (Send) having to threaten Bristol City Council with a Judicial Review, has significantly increased since 2019.
A Judicial Review, is undertaken when a judge is needed to review the lawfulness of a decision or action made by a public body – in this case – Bristol City Council.
In a Send context, families may have to take this action against a Local Authority (LA) if they fail to secure the Send provision set out in an EHCP, which results in the child missing out on education. They might also be used against an LA who has agreed to issue an EHCP but has failed to issue the final plan. And they might also be used when Home to School Transport has been blocked or withdrawn, despite the young person being entitled to it.
The first official step in a Judicial Review is to send a Preaction Protocol letter setting out the issue and giving the LA a chance to resolve it. This requires a solicitor to draft the letter to ensure its done correctly. After this, an application can be made to court for permission to bring about the Judicial Review.
But this is a time consuming and potentially expensive process. For those who have to pay for their legal assistance, a Preaction Protocol letter for Judicial Review costs £145 from best buy SOS SEN – a national charity supporting families with Send issues.
So considering families are forking out from their own pocket to have the Send support their child is lawfully entitled to, just how many Preaction Protocol letters is Bristol City Council receiving? For this, we checked out previous Freedom of Information (FOI) requests and then submitted our own.
In July 2021, a member of the public asked: ‘Please could you tell me how many judicial review pre-action protocol letters were received by the council relating to any matter pertaining to EHCPs for each of the following calendar years: 2014 – 2021 to date.’
In response, Bristol City Council said they received less than 5 letters in 2019, 18 in 2020 and 13 in 2021 to date.
We asked the council this year: ‘How many Judicial Review Preaction Protocol Letters has Bristol City Council received regarding an aspect of Special Educational Needs and Disabilities in 2019, 2020, 2021 and 2022? Broken down into year.’
Their answer was: under 5 in 2019, 6 in 2020, 23 in 2021 and 7 up to the 14 June 2022.
Whilst the numbers differ, which might be due to the slight differences in the way both questions were phrased, the reality is that the number of families having to use the Judicial Review legal process to force the council to do what they should be doing has jumped dramatically.