Education sector bodies have come under greater scrutiny about the way in which they make decisions. Whilst putting in place a fair, accessible and transparent complaints procedure would help increase the chance of resolving any challenge to a decision internally, students or parents may still pursue a judicial review challenge, if after going through the complaints procedure, they are not satisfied with the final decision.  Any judicial review claim could have a significant impact on education providers. Providers themselves may also wish to consider applying for judicial review of a decision by a funding or regulatory body.

What is judicial review?

For some time, the Government has been concerned about the rise in the number of applications for judicial review (JR) which increased by up to 70% between 2007 and 2011.  In a claim for JR, the claimant is asking the court to scrutinise how a decision has been made under public law. If the court finds in favour of the claimant, it may order the body who made the decision to either re-take that decision, or prohibit it from taking, or compel it to take, some further action. In order to ensure that parties work to resolve matters without issuing proceedings and thereby reduce the number of JR claims overall, the Ministry of Justice is continuing to implement a number of reforms to the JR process.

In addition to the changes introduced by the Criminal Justice and Courts Act 2015 (which are referred to in our previous briefing, a copy of which is available by clicking here), the Ministry of Justice has also amended the Pre-Action Protocol for Judicial Review (the “JR Protocol”).  The JR Protocol is a prescribed set of rules/process that the court expects parties to follow before commencing an application for JR. The court may impose sanctions or adverse cost consequences on parties who fail to comply with the JR Protocol, unless that failure is due to extreme urgency. We summarise below the key changes to the JR Protocol, which came into force on 6 April 2015. 

Alternative Dispute Resolution

Whilst parties have always been encouraged to settle a dispute without the issue of JR proceedings, it is now mandatory for a claimant to consider whether a form of alternative dispute resolution (“ADR”) or complaints procedure would be a more suitable way to resolve the dispute. The appropriate form of ADR is dependent on the type of dispute or complaint, however examples include:

  • discussion and negotiation;
  • engaging in public authority complaint or review procedures (such as the Office for the Independent Adjudicator in relation to student complaints);
  • ombudsmen; and 
  • mediation.

Both parties may be required to provide evidence to the court that alternative means of resolving their dispute have been considered. A party’s refusal to participate or failure to respond to an invitation for ADR could be considered unreasonable by the court, leading to the court ordering the party to pay additional costs. However, exploring ADR will not excuse either party failing to comply with time limits imposed by the JR Protocol. 

Letter Before Claim and Letter of Response

A claimant must now outline any ADR proposals they suggest may resolve the dispute in the letter before claim. Accordingly, it is now mandatory for defendants to set out their response to ADR proposals suggested by the claimant and/or their own proposals on ADR in the formal response to the letter before claim.  Under the updated protocol, where the claimant is a litigant in person, the defendant must include a copy of the JR Protocol within its letter of response.

Conclusion

As a result of the changes outlined above, it is possible that many parties in dispute may resolve their dispute through ADR without ever having to bring their claim before the court.  This may save both money and time on behalf of the court as well as the parties. Therefore, JR proceedings should be viewed as very much a remedy of last resort. 

In principle, this could be good news for education providers making decisions under public law principles, as claimants now have to ensure that, except in very urgent cases, they follow the steps outlined by the JR Protocol to increase their chance of resolving the dispute by exhausting other remedies. However, education providers will face the same hurdles when they are contemplating challenging decisions made by public bodies which often arise from funding, inspection, or sponsor licences issues. Bearing in mind that JR claims are often brought on the basis of “a matter of principle”  the chances of resolving the dispute through ADR may well remain low.  Time will tell whether the new JR Protocol will achieve the Government’s objective of reducing the number of JR claims overall and bring balance to the judicial review system.