Many parents and carers know that they can use the law to contest individual decisions in relation to their child, for instance at Tribunal, but there are also options open to them where they are concerned that their child is not receiving access to services they need.

Rosie Campbell, Solicitor in the Public Law and Human Rights at Irwin Mitchell, gives some advice on challenging a decision and key points to consider should you ever need legal support.

Challenging decisions about your child

If you experience difficulties accessing services, such as short breaks or direct payments, the decision can normally be challenged using the local authority's complaints procedure or complaining to the Ombudsman, your local councillor or your MP. If that doesn’t work, or if your local authority withdraws or reduces a service you could seek advice from a solicitor about your options, particularly if the refusal to provide or removal of the service would put you or your child at risk.

We recommend seeking legal advice promptly because the limitation for challenging these decisions is short. An application to court must be made within three months of the decision being challenged and as soon as possible. Ask for your complaint to be dealt with promptly and seek legal advice as soon as the decision is made. For more help on how to put together a letter of complaint visit our website.

Legal action

Challenges of closures or reductions to services are generally brought as applications for judicial review.  This is a process by which the High Court scrutinises the decision making of public bodies (such as local authorities or the NHS). The court will decide if the public body has acted lawfully. For example, if the public body has failed to consult fairly or in line with its legal duties, has got the law wrong or has acted outside of its powers.  If this is the case, a court may tell the public body to take a fresh decision. The court can also stop a service being shut down until the court hearing takes place. This is called interim relief.

Some parent/carers groups bring claims with the backing of campaign and local forums/ support groups. An example of a group of parents coming together and using the law to protect their children’s interests is the case of Nascot Lawn. In this case, a group of parent and carers were able to use the law to empower themselves and successfully challenge the closure of a respite centre on behalf of their children who used the service.

Key points to consider

  • Collective action – although claims are brought in the name of individuals, collective action can play an important role in bringing cuts challenges to court. Benefits assisting in raising awareness, demonstrating public feeling on the issue, fundraising, and gathering witness evidence in support of the case. Many parents and carers are members of local forums and support groups who will be only too aware of the issues being faced. It can help to gather support and evidence of other children being affected.

  • Legal Aid – Legal Aid is still available in this area of law. A means test will be carried out in relation to the person whose services are being cut, irrespective of the parents’ or carers’ means.

  • Crowdfunding – if Legal Aid is not available, another option is crowdfunding. This involves using an online fundraising platform such as the website Crowdjustice to raise money to fund the challenge. Crowdfunding can be a particularly good option at the very early stages of a case where lawyers are instructed to investigate the issues because this is work for which only limited Legal Aid is available. . Specialist solicitors can advise parents about each type of funding and any risks involved.

  • Timing – timing is crucial as the law requires that a claim for judicial review must be brought promptly and not later than three months after the decision or errors complained of first arose. You should seek specialist legal advice as soon as possible when you become aware of the public body’s decision – for instance as soon as you hear that your local authority is planning to close a service, or proposing a funding cut.

For more information, advise and support in the areas discussed above, please contact Irwin Mitchell Solicitors at [email protected] or visit the Irwin Mitchell website.

KIDS does not recommend any particular form of solicitors but it brings you this article from one of our legal corporate partners, Irwin Mitchell.