Judicial Review is increasingly used by individuals and organisations as an alternative to appeals, or where an appeal fails or is inappropriate. It is not so much a matter of appealing against an incorrect interpretation of the law- in such a case an appeal to a Tribunal is the appropriate choice - but to argue that the law itself is wrong eg that it is discriminatory or goes against human rights.
Note that there are strict criteria on when this can be done, and because it is almost impossible to do without legal representation, and can be a lengthy process, it is a procedure not to be undertaken lightly and will not always be an appropriate course of action.
CPAG has a number of template pre-action JR letters - they can be found here
One example of where a claim for Judicial Review has been sought in benefit law is the 2 child limit
-single parents with children aged under two argued that it unfairly discrimated against such families. Unfortunately the case lost.
Judicial Review can also be used to challenge discretionary decisions which do not carry a right of appeal, such as Discretionary Housing Payments. But again note that the criteria for makng a claim are quite specific - see below.
It is imperative to seek legal advice before going for Judicial Review, and a lawyer will almost certainly be required to take the claim. Legal Aid is almost never available for a benefit decision so it can be very expensive for the claimant unless a charity or other body is willing to fund the claim.
What is it for?
Judicial Review is used to challenge the lawfulness of a regulation or to challenge a 'public body' in what they have done or decided. A 'public body' could be a Local Authority, or the DWP, or HMRC, or the Police, the NHS etc.
It can also be used to challenge a decision by an 'inferior court' ie below the High Court or Court of Appeal.
In the precise legal definition, the Civil Procedure Rules (CPR) Part 54.1 (20(a) say:
"A claim for Judicial Review means a claim to review the lawfulness of
i) An enactment or
ii) A decision, or failure to act in relation to the exercise of a public function."
Who can bring a Judicial Review claim?
A person or body has to show they have 'sufficient interest' to challenge a decision by way of Judicial Review - so usually they have to be directly or personally affected. Courts are increasingly allowing organisations such as public interest groups to bring claims on behalf of others (eg Child Poverty Action Group.) However the government is planning reforms to judicial review procedure that could make it more difficult for public interest groups to do this.
'Sufficient interest' means that the person or body has been affected by an unlawful exercise of public power by a public body such as the Local Authority or a tribunal, for example because the action or decision has violated his or her rights.
A person or body can use Judicial Review where all other routes have failed or the matter is inappropriate for an appeal to a tribunal, so long as the reasons for their claim fit into one of the categories given below, under "How can Judicial Review be used for challenging Universal Credit decisions?".
What outcome can the Judicial Review claimant expect?
When anyone makes a Judicial Review claim (they are then known as the 'claimant')- they need to specify what outcome they want. This could be to have it set aside (quashed) and possibly obtain damages.
A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.
When can Judicial Review be used for challenging Universal Credit decisions?
In a Judicial Review against a UC decision, the judge will investigate the DWP's actions for impropriety, unreasonableness, or illegality - these are defined below.
For example, the DWPmay have made an unjust decision or a decision beyond its powers, or failed to act where it has powers to do so, or fettered its discretion (eg blanket policies not taking individual issues into consideration). Or the claimant might be challenging the regulations themselves on the basis that they are unlawful - perhaps because they go against an over-riding law such as the Human Rights Act 1998 or the Disability Discrimination Act 2005.
Note that Tribunal Judges in the Upper Tier of the Tribunal Service (previously known as Commissioners) can undertake Judicial Reviews themselves for cases that can't be appealed to the Upper Tier in the normal way because the Tribunal has not actually made an "error of law" (the criteria for going to an Upper Tier tribunal) - but has perhaps acted improperly or irrationally, as defined below.
The grounds for reversing a decision by way of Judicial Review are:
- Irrationality (Unreasonableness)
- Procedural impropriety.
Illegality means that either:
- There has been an error of law or an error of fact.
- Relevant issues have been ignored or irrelevancies have been taken into account.
- The public body has 'fettered their discretion' (ie taken a blanket approach without considering individual circumstances).
- The decision was beyond the powers of the public body in question ("Ultra Vires").
- The powers have been used for a different purpose than that intended by the law used for the decision.
- The decision was made by the wrong person.
Irrationality means the decision was "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This means either:
- There were 'improper motives' behind the body's actions / decision.
- They acted in bad faith.
- They were unreasonable or illogical.
- The decision doesn't have 'proportionality'. For a decision to have "proportionality" it has to be proportionate to the aim it intends to achieve. This criterion is used for cases in which there appear to be breaches of European Union law or the Human Rights Act. What it means is that there has to be a balance (proportionality) between (a) the general interests of the community and the legitimate aims of the state and, (b) the protection of the individual’s rights and interests. The Courts will consider whether the state's objective is legitimate; whether the decision or regulation in question is suitable for achieving this aim; whether it is necessary, in the sense of being the least intrusive means of achieving the aim; and whether the end justifies the means overall. An example where 'proportionality' has been used is the Judicial Review decision that went against a claim by CPAG on ten cases arguing against imposition of the Bedroom Tax on the grounds that the regulations were unlawful because they contravened the Disability Discrimination Act. The Court found that although there was discrimination against people who need an extra bedroom because of their disabilities, this was not disproportionate compared to the over-riding aims of the Bedroom Tax - ie to free up larger housing for overcrowded families.
Procedural Impropriety means that the process of its making the procedures prescribed by statute have not been followed or the 'rules of natural justice' have not been adhered to, for example:
- There has been bias (very difficult to prove and not often used for this reason).
- The claimant was not given a fair right to be heard.
- There was a lack of reasons in the public body's decision.
- The public body did not notify the claimant of their right of appeal, or did not allow an appeal when they should have done.
- Legitimate expectation - the claimant wasn't told what was likely to happen.
- The public body did not act consistently.
- They public body did not consult when they should have done. An example here is the Judicial Review being taken against the '20 metre rule' in the Personal Independence Payment descriptors. Solicitors are arguing on behalf of two disabled claimants that there rights were violated by the government's failure to consult properly on the change from the originally proposed 50 metre descriptor.
How does someone bring a Judicial Review claim?
The procedure is laid down in the Civil Procedure rules, mostly in Part 54. This includes a Pre-Action Protocol
which specifies actions to be taken before the claim can be made. Click here
for the DWP's Pre-Action Protocol for Judicial Review.
1. The claimant (person or organisation) needs to check that there isn't an alternative remedy (eg going to an appeal tribunal if appropriate). If there is an alternative, and they haven't used it, they won't be given permission to claim Judicial Review.
2. They also need to check that their grounds for review meet the specified criteria - as described above (Illegality or Irrationality or Procedural Impropriety).
3. Under the terms of the Pre-Action Protocol, the person or body seeking Judicial Review should send a letter to the defendant, the purpose being to identify the issues in dispute and see if whether litigation can be avoided. The letter should contain the date and details of the decision, act or omission being challenged and a clear summary of the facts on which the claim is based, details of any relevant information with an explanation of why this is considered relevant. Note that CPAG has a number of pre-action template letters - here.
The defendant should reply either agreeing or disagreeing, and where appropriate setting out a new decision, within 14 days - sanctions may be imposed on them if they don't reply on time without good reasons time.
4. Permission must be sought from Her Majesty's Courts and Tribunals Service. An application for permission to apply for Judicial Review must be made to the Administrative Court (or in Scotland, the Court of Session) using form N461. The claim form must include or be accompanied by a fee of £60 and properly paginated and indexed bundle of papers including:
• a detailed statement of the claimant's grounds for bringing the claim for judicial review;
• a statement of the facts relied on;
• any application to extend the time limit for filing the claim form; and
• any application for directions.
The claim form must also be accompanied by:
• any written evidence in support of the claim or application to extend time;
• a copy of any order that the claimant is seeking to have quashed;
• where the claim for Judicial Review relates to a decision of a court or tribunal, an approved copy of the reasons for reaching that decision;
• copies of any documents upon which the claimant proposes to rely;
• copies of any relevant statutory material;
• a list of essential documents for advance reading by the Court (with page references to the passages relied upon).
And where the claimant is seeking to raise any issue under the Human Rights Act 1998, or a remedy available under that Act, the claim form must include the information required by paragraph 16 of the Practice Direction supplementing Part 16 of the Civil Procedure Rules.
Permission may be refused if one of the following conditions is not satisfied:
- The application must be made promptly and in any event within three months* from the date when the grievance arose. (But if in Scotland, see below). Note that a Court may decide that an application made in less than three months may still be not prompt enough.
- The applicant must have sufficient interest in a matter to which the application relates.
- The application must be concerned with a public law matter.
* NOTE that in a real emergency an "out of hours" application can be made - basically the legal representative can phone a judge at any time of day or night for something urgent such as when someone is about to be deported or suffering real hardship - but the case has to be "truly exceptional".
In England and Wales:
Application for a Judicial Review of a decision is to the Administrative Court (a division of the High Court)
Judicial Review in Scotland functions within the framework of Scots administrative law. The power of Judicial Review of all actions of governmental and private bodies in Scotland is held by the Court of Session.
There are no time limits on seeking Judicial Review in Scotland, although if proper administration is prejudiced by delay on the part of the claimant, the Court may exercise its discretion and refuse to grant a review. Despite the procedural differences, the substantive laws regarding the grounds of Judicial Review in Scotland are similar to those in England and Wales, with decisions in one jurisdiction regarded as highly persuasive in the others.
What if the Judicial Review fails or permission to claim is not granted?
If the claimant is refused permission to apply for a Judicial Review they can appeal to the High Court within 7 days of the refusal.
If the claim does not succeed at Judicial Review they can appeal the decision at a higher court, eg the Supreme Court or European Court of Human Rights.