Judicial review is an avenue available to those wishing to challenge a public body’s decision on the basis that the public body has not acted, or given a decision, lawfully. All public bodies can be subject to judicial review if they are exercising public functions. For those studying in higher education, judicial review is often an avenue used to challenge the decisions of a university after all other appeals have been exhausted. Challengeable decisions may be those to exclude or suspend a student, fail a course, deny an extension etc. Petitions for judicial review in Scotland are heard before the Court of Session.
Who can seek judicial review?
A person is required to have “standing” to bring a claim for judicial review to court for the review of an educational decision. This means that you must have an interest in, or be affected by, the decision of a university. Students therefore are the usual individuals seeking judicial review.
What decisions, acts or omissions are challengeable?
The basis of a judicial review claim is complex, but there are various grounds upon which you can seek judicial review. There are broadly three grounds: –
- Illegality. This is a ground in which the person seeking the judicial review – the petitioner – asserts that the public body has not acted within the realms of the law. For instance, it may be ascertained that a university has not complied with its obligations under the Equality Act 2010. This may be applicable if a student who has a disability has not had their disability adequately considered by way of reasonable adjustments to ensure they are able to complete their assigned tasks.
- Irrationality. Irrationality is difficult to prove for judicial review cases as it requires a threshold of unreasonableness to be met. Sufficient evidence would need to be supplied to demonstrate the unreasonableness or irrationality of a decision.
- Procedural Impropriety/irregularity. This is where a public body has failed to follow a written, set out, or dictated procedure. This may be a university’s internal appeal policy or compliance with a student code of conduct.
It is important to note however, that matters of academic determination (e.g. confirmation that a piece of work is at a standard to award a certain grade level) are non-justiciable. This means that it is not in the court’s power to carry out an academic review or reading of a piece of work to determine if that individual’s work meets the standard for the granting of a certain award. Rather, it is the court’s job to assess whether the university acted lawfully and considered all relevant factors and followed correct procedures in reaching its decision. In the event that a university has not done this, then a review of the decision may be applicable which could have the effect of a grade change or the granting of an award.
Judicial Review proceedings – the where, when and how.
In Scotland, judicial review proceedings are initiated by lodging a petition with the Outer House of the Court of Session.
A petition for judicial review should be brought within 3 months of the decision or act being challenged. Thereafter, the petitions procedure for judicial review matters applies. A court will then decide whether the case can be served on the respondent.
What remedies are available?
Judicial review is not a procedure that can simply reverse a decision in favour of the petitioner. The court will not decide that the final outcome sought by the petitioner is correct.
Rather, the remedies are designed to either force the respondent or decision maker to act in a particular manner or pay reparation for the flawed decision. For instance, an order for specific implement is an order compelling a party to carry out a certain action – this could be to allow a further examination, or to allow the submission of further evidence of extenuating circumstances. The court may order a reduction of a decision which is in essence, the recall of the university’s decision and a referral of the matter back to them for a reconsideration of all relevant circumstances. The usual procedure is a case is sent back to the decision-maker if it is found that their original decision was flawed, and the remedy will stem from there.
Should you wish to consider a judicial review, please get in touch with our team and one of our solicitors would be able to meet with you to advise you on your options.
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