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What is a 'judicial review'

Judicial review is a way of challenging how an organisation carries out a public function. It is a specialised type of legal proceeding.

Unlike private law which involves a dispute over a person’s rights and obligations, judicial review has a wider public importance because it is about ensuring the state does not exceed the powers given to it by law. This difference means that special rules apply to judicial review.

The court’s role is to look at whether a decision was lawfully available to the body which made it. Judicial review is a two stage process.

In our case, a special petition would have to be made before a judicial review could be conducted into the decisions made by the Care Inspectorate at the time of close because the normal 3 month deadline has been exceeded.

Our grounds for doing this would be that:

  • evidence has only just come to light through FOI requests

  • we have only just managed to exhaust the complaints process and not achieved a satisfactory outcome or answers to legitimate questions

  • the impact on 24 young people and their families, and on 50 members of staff has been so great that the 3 month limit should be waived

  • The issue is of national significance. If the Care Inspectorate has acted improperly, other services are at risk and the inspectorate may be unable to fulfil what are crucial functions

For a judicial review to be successfully granted, we would have to demonstrate failings in one of the following areas;

Grounds for judicial review The grounds for judicial review are traditionally divided into three categories. In practice there is considerable overlap between categories and cases will usually be brought on more than one ground.

1. Illegality A public authority may not act outside the powers which it has been given by legislation. It must also comply with established principles when exercising its powers. It must not improperly delegate its discretion to make decisions to another person or use its powers for a purpose for which they were not intended. For example, the government’s decision to introduce a residence test for legal aid was recently declared unlawful as there was no power to do this in the primary legislation (the Legal Aid, Sentencing and Punishment of Offenders Act 2012).

Here are the ‘principles’ which should guide the Care Inspectorate when making enforcements;

“We take into account the five principles of better regulation and our duties under the Regulators Strategic Code of practice, as well as taking account ofthe SSSC Codes of Practice. A cornerstone of better regulation is the five principles of better regulation”.

“The principles state that any regulation should be:

Transparent

Accountable

Proportionate

Consistent

Targeted”

We believe that the Care Inspectorate failed in all areas

2. Procedural impropriety The decision maker must follow the correct procedure when making the decision. This means complying with statutory requirements and ensuring that there is a fair hearing. The meaning of this differs according to the circumstances. In some cases, there will be a duty to consult, and if the decision maker decides to consult (whether or not such a consultation is required) there is a duty to carry out the consultation “fairly”. For instance, the decision to give residents of a care home five days’ notice that their home was about to close, with no further consultation, was held not to meet this standard of fairness.

3. Irrationality/proportionality The general rule is that the court will not allow a decision to stand if it is so unreasonable that no authority could ever have come to it. The point to take from this circular test is that it is very hard to satisfy. It will not be enough to show that you think the decision is unreasonable. The decision must be outside the bounds of what can be considered reasonable. In cases which involve European Union law or the European Convention on Human Rights, the test is the more relaxed one of “proportionality”, which involves balancing the interests of the relevant parties.

Our view on the potential claims against the Care Inspectorate:

i. Imposed an improvement notice on the school when there was no justification for doing so, and when it was already known that no wrongdoing had taken place. Specifically,

a. that the school ensure that no inappropriate behaviour takes place between staff and pupils - when this had already been shown to be true

b. that the school ensure that there are no conflicts of interest in management decision-making - when this was also known to be true

ii. Failed to report accurately on the outcome of a child protection investigation and thus caused the imposition of conditions on the school by the Scottish Ministers

iii. Withheld information from a local child protection investigation that was relevant to the matters being considered

iv. Conducted a sustained campaign of intimidation and non-cooperation against the school which impacted on the effective working of the service, and its reputation.

v. Made a false claim to the regulatory authorities (Registrar of Independent Schools) that the school had failed to follow its child protection procedures

vi. Failed to judge school care accommodation in a fair and equitable manner

vii. Forced the school to close within 5 days when they knew that this would cause significant harm to 24 young people and their families

viii. Forced the school to close knowing that some pupils would never be able to attend school again

ix. Forced the school to close by imposing, “intolerable pressure” on the Board of Governors[1], when it was not in the interests of the pupils to do so. Informed the Board of Governor’s that, “If they did not close the school, the Care Inspectorate would”.

x. Released information to the press which was known to be incorrect and thus damaged the reputation of the school and the school managers

xi. Demanded of the Board of Governors that the Head of School be suspended when they had no power to do this, and when it was not in the interests of staff or pupils at the school

xii. Demanded that the Head of School should not be permitted to return to work until there were no pupils present despite the fact that is was known that he posed no risk to them

xiii. Reported the Head of School to the GTCS, and Head of Care to the SSC, after investigations had shown that no wrongdoing had taken place

Information taken from: https://knowhow.ncvo.org.uk/how-to/how-to-work-out-if-you-should-apply-for-judicial-review

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Bill Colley