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What is judicial review?

Judicial review is a legal challenge to a public body:

  • against the way a decision has been made, a human rights violation, an unlawful act, a delay, or a refusal to act by a public body. (Not simply because you do not like the decision);
  • by a person with sufficient interest. This will usually be an individual personally affected by the decision, refusal to act, or human rights violation, but may also (except in the case of a human rights violation) be an agency representing the interests of a group of affected persons (eg, Child Poverty Action Group);
  • where there is no other appropriate or adequate remedy (either there is no right of appeal or the right of appeal is not appropriate, eg, due to time sensitivity) and/or all other adequate remedies have been exhausted;
  • made promptly and in any event within 3 months of the decision being challenged (or 16 days in the case of challenging the refusal of permission to appeal against the decision of a First-tier Tribunal by the Upper Tribunal).

How can it help my client?

An increasing number of welfare rights decisions and actions are not open to appeal. These are likely to be issues your clients face regularly and include, for example:

  • inappropriate universal credit (UC) conditionality;
  • refusal of a discretionary housing payment;
  • refusal of a local support scheme grant or loan;
  • refusal of a universal credit budgeting advance;
  • delays in providing mandatory reconsideration decisions;
  • delays in making right to reside decisions;
  • refusal to extend the time limit for making a mandatory reconsideration request;
  • a decision to recover an overpayment of benefit;
  • refusal to pay UC without a national insurance number.

Judicial review can be a way of challenging these otherwise unchallengeable decisions.

Why should I use judicial review?

It can be a quick win. Sending a ‘letter before claim’ (also known as a pre-action letter) is often enough to produce a result as public authorities want to avoid ending up in the High Court, particularly in cases where there is a clear error or failure on their part, to avoid costs or setting precedents that will bind decision making in the future. If you are challenging a delay or failure to follow the law, the legal team acting for the relevant decision maker is likely to revise the original decision or make a decision where there has been a delay or failure rather than let it get to court, where they risk losing.  

Using our pre-action letter templates is straightforward and we can provide support at the pre-action stage (ie, before the matter goes to court). We can review your letters, discuss grounds with you, and advise on the merits of your case. Contact [email protected].

The pre-action stage is cost free – it just takes the time of you writing the pre-action letter. If the decision is not changed at the pre-action stage, your client can choose not to proceed any further with their claim and will have lost nothing. If your client wants to proceed with their claim, legal aid is available for judicial review.

Use our map of solicitors if it does need to go to court. Note that some of these firms do not accept self-referrals, so you will need to refer your client to them to advance their case. 

The court’s decision in a judicial review case (if it does get to court, for example in cases which challenge the lawfulness of primary legislation) is binding, so it might help other people in similar situations. For examples of our law-changing judicial review work, see our legal test cases.

It adds another string to your bow. Read about some success stories of advisers using our judicial review pre-action protocol letters.

Does my client need a lawyer?

The short answer is: no (not at the pre-action stage ie, before the matter goes to court).

The pre-action stage is cost-free and there is no financial risk to your client.

The letter before action is simply asking the lawyers for the decision maker to look at the decision or action/inaction again (because the decision has been reached in the wrong way etc.).

In straightforward cases where there has been a clear failure to apply the law correctly or simply a failure to act, once the public body's lawyers have looked at it, they will simply do what you are asking them to avoid the risk of you taking them to court and there being a negative judgment against them.

If they look at it again and do not change it, the decision maker will write to let you know, and you and your client can then decide if you want to pursue it to court.

If your client wants to pursue it, you will then need to refer the matter to a solicitor. (Challenging public bodies in the courts can be done by individuals representing themselves but they are immediately at a disadvantage as the public body will always be represented in a judicial review claim). See our map of solicitors for solicitors you can make referrals to.

How does it work?

What is the procedure?

A pre-action protocol letter must be sent to the defendant promptly, and well within 3 months of the matter being challenged. It must set out (as detailed in Annex A of the Pre-Action Protocol for Judicial Review at CPR 54): 

  • that it is a proposed claim for judicial review (ie, head up the letter clearly as a proposed claim);
  • the claimant’s details (name, address, dob, national insurance number);
  • the defendant’s reference details for the claimant (if any);
  • a summary of the act or omission being challenged;
  • the background facts;
  • relevant legal principles and why it is contended that the act of omission is wrong;
  • why judicial review is the appropriate remedy (this is only relevant where other remedies do exist but are considered ineffective);
  • the details of the action that the defendant is expected to take to remedy the situation;
  • proposals for Alternative Dispute Resolution;
  • the details of any information sought;
  • the details of any documents that are considered relevant and are being supplied with the letter;
  • the address for reply and service of court documents; and
  • a proposed reply date (usually 14 days).

We have produced a number of pre-action protocol template letters for you to use. Contact [email protected] for advice on the merits of your case, a copy of any of the letters, and assistance preparing and reviewing your correspondence.

The defendant should reply within 14 days. If the matter contested is a delay or refusal to act under a statutory duty, this response will often resolve the matter. You can also ask for a response in a shorter period if the matter is urgent eg, because of the hardship being caused to your client.

If they respond and do not change the decision and you do not agree with their reasons, you can reply providing more information and further arguments (as many times as you like!) and still be within the ‘pre-action’ stage so there is no cost implication.

If they reply and do not change the decision and you have no further or different arguments to make in response, and your client wants to pursue the matter, you will need to refer them to a solicitor. Use our map of solicitors to find one.

Success stories

Challenging UC conditionality

Background

X had scored 12 points at her Work Capability Assessment (WCA) on the basis of her mental health.

The descriptors she scored points for included “Getting About - Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person (6 points)” and the assessor had included in their report “She always needs someone with her when travelling to new places and meeting new people due to severe anxiety and panic attack [sic]… The evidence indicates that she is not able to get to a specified place without support from another person I have therefore awarded 6 points for this descriptor".

X was asked to apply for a number of jobs that would have required her to travel for up to 90 minutes per day on public transport. She had incurred several sanctions for failure to attend interviews. These sanctions were overturned on appeal, but the DWP declined to adjust her claimant commitment to take account of the findings from her WCA.

How could Judicial Review help?

X was continuing to be asked to apply for jobs that she could not get to due to her mental health problems, and was continuing to incur sanctions which she was unable to challenge without assistance. She was therefore at risk of financial hardship for herself and her children, and experiencing a significant amount of stress. Judicial Review was a way of challenging her claimant commitment.

Why did we use Judicial Review?

  • UC conditionality in the claimant commitment is not open to appeal.
  • The DWP is a public body.
  • The challenge was brought on behalf an individual client who was a person with “sufficient interest” as it was her own benefit claim in question.
  • The DWP had failed to follow the Regulations and were therefore acting unlawfully.
  • JR was therefore the appropriate remedy to challenge the DWP.

Did we use a lawyer?

No. A CPAG adviser (not the CPAG solicitor) sent a pre-action protocol letter to the DWP on X’S behalf quoting Regulation 97(6) of the Universal Credit Regulations 2013 and arguing this should be applied to X’s work search requirements. Regulation 97(6) provides that: "Where a claimant has a physical or mental impairment that has a substantial adverse effect on the claimant's ability to carry out work of a particular nature, or in particular locations, a work search or work availability requirement must not relate to work of such a nature or in such locations".

How did it work?

The pre-action protocol letter was sent within 3 months of the DWP’s refusal to adjust her conditionality.

The DWP replied and agreed to review X’s claimant commitment.

CPAG wrote back with more specific requests, to which the DWP replied:

“I am pleased to confirm that X’s claimant commitment was reviewed at a meeting with her work coach on 3 December and X's work-related requirements have now been adjusted to take into account her mental health.”

It did not get to court, and no costs were incurred.

Habitual residence test

Background

X was the non-EEA wife of Y, who was an EEA worker.

X left Y due to domestic violence and was living in a domestic violence shelter with their 2 children. X was eligible for UC as the family member of an EEA national.

X applied for universal credit and failed the habitual residence test as the DWP had failed to establish whether Y was a ‘worker’.

This decision was appealable and a mandatory reconsideration was applied for.

The mandatory reconsideration decision upheld the original decision.

How could judicial review help?

X needed the DWP to follow their own guidance and ‘seek information to help them make their decision’ as it was not reasonable to ask X to contact Y to obtain supporting evidence.

Why did we use judicial review?

  • Refusal of UC is an appealable decision but the matter was extremely urgent as X had no income for her and her children. 
  • The DWP is a public body. 
  • The challenge was brought on behalf an individual client who was a person with “sufficient interest” as it was her own benefit claim in question. 
  • The DWP had failed to follow the Regulations and caselaw and were therefore acting unlawfully.

Judicial review was therefore the appropriate remedy to challenge the DWP to produce a quick result.

Did we use a lawyer?

No. A CPAG adviser (not the CPAG solicitor) sent a pre-action protocol letter to the DWP on X’S behalf quoting Kerr (AP) v Department for Social Development (Northern Ireland) [2004] UKHL 23 which requires the SSWP, where information is not available to the claimant, to take steps to obtain that evidence and therefore shifts the burden of proof to SSWP.

How did it work?

The pre-action protocol letter was sent within 3 months of the mandatory reconsideration decision.

The DWP replied to say “judicial review is not an appropriate remedy”.

CPAG replied with a bit more detail and further arguments.

The DWP replied to say they still did not think judicial review was an appropriate remedy, but revised the original decision and paid X 3 months' UC for her and her children.

The judicial review request had the effect of making the DWP lawyers look at and improve the decision-making process.

There were a couple of letters to and fro, but it was all within the pre-action stage. It did not get to court, and no costs were incurred.

Universal credit claim and housing costs

Background

X is a vulnerable adult with learning difficulties and mental health problems. He moved from supported housing into independent accommodation and tried to make a claim for universal credit (UC).

There were 2 issues. X was unable to complete his claim due to his learning difficulties and mental health problems so there was a significant delay in it coming into payment.

When it did come into payment, it did not include his housing costs, despite all the information having been provided.

X was at risk of losing his new independent accommodation.

How could judicial review help?

There was no decision to appeal during the period his claim was delayed and UC backdating is limited to one month.

The UC statements were eventually retrospectively updated to include his housing costs, but no money was being received by X or his landlord. Non-payment is not an appealable decision (as a decision has been made to pay!).

Why did we use judicial review?

  • X needed his UC including his housing costs paid from the start of his tenancy, a remedy not available through mandatory reconsideration.
  • The DWP is a public body.
  • The challenge was brought on behalf an individual client who was a person with “sufficient interest” as it was his own benefit claim in question.
  • The DWP was unlawfully withholding the UC X had been awarded, and had failed to follow their own guidance by referring X for digital support. This failure to make adjustments constituted unjustified discrimination on basis of his disability.
  • Judicial review was therefore the appropriate remedy to challenge the DWP's delay, failure to pay and discrimination.

Did they use a lawyer?

No. An adviser working in a housing association sent a pre-action protocol letter to the DWP on X’S behalf arguing disability discrimination and failure to follow their own processes by failing to offer digital support when they were aware of X’s learning difficulties.

How did it work?

The pre-action protocol letter was sent within 3 months of the mandatory reconsideration decision.

The DWP replied saying 

“UC will be assessed from the date that the claimant first started the claim process.” “The Housing Costs element will be included from that date.”

UC was paid from the start of X’s tenancy and included his housings costs, preventing homelessness and ensuring he could maintain himself in his new independent accommodation.

We have a library of template pre-action protocol letters for you to use. Get advice from our Judicial Review Project, [email protected], on how to adapt and use them.