Right side of the law

What
should a local authority do when faced with a judicial review? Steve Cragg
explains the implications of judicial reviews and suggests how local
authorities can avoid the need for them.

What
happens when a judicial review case is brought against a local authority?

Over
the months I have mentioned a large number of court cases against local
authorities and their social services functions.

Almost
all the examples I have cited are judicial review cases. These are cases where
high court judges have the power to supervise the functions of public bodies by
deciding whether they are complying with their powers and duties as set out in
legislation, whether they are acting in a way that the law thinks is fair and
rational, and (since October last year) whether the local authority has acted
in compliance with the European Convention of Human Rights. I look more closely
at the first two here.

–
Powers and duties: Local authorities have duties to assess, to comply with
guidance and to provide services in certain circumstances. Failure to do so may
lead to an action for judicial review to enforce these duties. If the local
authority has the power (rather than a duty) to provide a service, then a
person can enforce consideration of the exercise of the power in his or her
favour.

Sometimes
judicial review will involve the interpretation of words in statutes. What does
it mean, for example, when section 21 of the National Assistance Act 1948
states that there is a duty to provide "residential accommodation"?
Does it mean any kind of accommodation, or just accommodation in an
institutional setting?

–
Fair and rational: The courts have developed rules that will be applied even
when they are not found in legislation. For example, a decision must be made
fairly. This has been held to mean that residents in homes earmarked for
closure must be consulted before the decision is made and that their views must
be taken into account.

As
for rationality, a local authority is given a lot of leeway to make its own
professional judgements about issues such as need and the ways of meeting it,
but if a decision is perverse and cannot be logically defended then it may be
unlawful.

The
most common, but rarely successful, challenge on this ground is to the
reduction of services to disabled people. In making its decisions the local
authority must be careful to take all the relevant factors into account.

–
Procedure and consequences: Most cases are brought by individuals dissatisfied
with decisions made by the local authority, although a number of major
charities, such as disability group Radar and Help the Aged, have also brought
cases. Legal aid is available to individuals in many cases.

The
high court can deal with an urgent case initially very quickly (within days or
even hours if necessary) and grant injunctions when these are required (for
example, to preserve services). Many cases settle at this early stage, with
social services agreeing to provide a service or reassess.

If
the case goes to a full hearing it is very rare for social services staff to be
called to give evidence, although they may be asked to provide a written
statement. The hearings rarely last more than a day or two. If the case is won
then the most usual order is for the local authority to reconsider the decision
it has made. If there has been a failure to perform a function, however, the
court might order that this is done anyway.

It
is very rare for the court to criticise individual officers. It is usually
assumed that social workers are doing their best in often difficult
circumstances and in an area of the law which the court knows is difficult and
complex.

In
addition, individual officers are often following the policy of the local
authority, and it is often the policy itself which is under challenge and not
any one individual’s actions.