Pre-action correspondence

​​'Pre-action correspondence' is the preliminary stage before issuing a judicial review claim in the Administrative Court.

 

A judicial review claim may be issued in circumstances where a public body is acting unlawfully and despite pre-action correspondence being issued, has failed to remedy the breach. 

Pre-action correspondence must have been engaged in, before a judicial review claim can be issued. 

 

Pre-action correspondence refers to a specific legal letter, which is drafted in compliance with the pre-action protocol (which requires the letter to take a specific form and cover particular information). The letter is then sent to the public body's legal team to force the public body to comply with their legal duties. The letter has the purpose of conveying 'you are currently acting unlawfully and unless you correct it, we will be issuing a claim against you.' 

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We have found that a well drafted and legally sound pre-action letter resolves the issue in 99% of our clients' cases, without the matter ever needing to proceed to a full judicial review claim.

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So when might you need to issue a pre-action correspondence?

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Where legal timescales have not been met. For example:

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• If a local authority fail to confirm whether they are going to carry out an EHCNA within 6 weeks of the request

• If a local authority  fail to confirm whether they will be issuing an EHCP (following an EHCNA) within 16 weeks of the request

• If a local authority fail to issue a final EHCP within 20 weeks of an EHCNA, or

• If a local authority fail to provide a decision letter within 4 weeks of an annual review taking place

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Or, where the public body is failing to fulfil their legal obligation. Such as:

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• Not providing (or providing less than) the specified and quantified support set out in an EHCP (for example, failure to provide speech and language therapy or the use of a full time 1:1 teaching assistant)

• Not providing a child/young person with appropriate or full-time education.

• Unlawfully refusing to provide, or fund home-school transport.

• Not undertaking appropriate social care assessments or providing appropriate social care support and services.

 

If pre-action correspondence setting out the unlawful behaviour and the action we expect the public body (generally a local authority) to take does not resolve matters, then it may be necessary to submit a judicial review claim to the Administrative Court. This is very unusual, but unfortunately not impossible. However, in the event of a successful claim, you may be able to recover your costs from the public body. For this reason, public bodies are almost always open to resolving the matter through pre-action correspondence within 14 days, once we have set out where they have acted unlawfully.

 

Challenging a public body can seem a daunting task, but many of our clients are surprised to find that the law is in their favour, and that forcing their local authority to act lawfully is achieved quickly and easily.

 

If your local authority has veered off course, do not delay. Contact us on 01284 723952 or 01223 650857 so we can talk through getting things back on track.