ARC Costs have recently assisted on a number of costs cases in relation to Education, Health and Care Plan (ECHP) Judicial Review cases.
What is an Educational, Health and Care Plan Tribunal & Judicial Review (EHCP)?
An Educational, Health, and Care Plan Tribunal is a legal process that provides parents and young people with the opportunity to appeal against decisions made about the provision of special educational provision for children or young people in nursery, school or college.
If however, the Local Authority has acted unreasonably or unlawfully, for example not issuing a EHCP in a timely fashion, failing to implement it properly or to provide sufficient support, then the matter can be dealt with by the Administrative Court by way of Judicial Review. Before proceedings are issued however, the pre-action protocol must be followed, and a Letter before Action sent.
Education, Health and Care (EHC) plans are legal documents that describe a child or young person’s special educational needs (SEN) and the SEN support that they require to meet those needs following an EHC Needs Assessment. The plan should be subject to an annual review, and decisions about changes to the plan are made by a local authority. However, if parents or young people disagree with a decision made by the local authority, they can appeal to an EHCP tribunal, or if not properly implemented then such failings can be contested by way of Judicial Review.
If proceeding by way of Tribunal or Court, these are independent bodies that hear evidence from all parties involved and makes a decision about whether the local authority’s decision was correct or not (in the case of a Tribunal), or unlawful (in the case of a Judicial Review). The Tribunal/Court’s decision is legally binding, and both parties must comply with it.
The Tribunal process is designed to be accessible, and parents or young people do not need a lawyer to appeal to a Tribunal. Legal representation in Judicial Review Court proceedings is however, strongly recommended, and it is likely that you will need the support of a Solicitor and Barrister.
EHCP Case Study – Judicial Review Costs
ARC Costs were instructed to assist on the recovery of legal costs for a Solicitor who represented a Claimant in a Judicial Review against a local council. The Claimant was diagnosed with ADHD and ASD, and the Claimant’s school; therefore, stated that they could not meet the needs of the Claimant and that they needed to attend a specialist school as they required 1:1 support at all times.
The Claimant’s parents proposed a school which they believed could meet the Claimant’s needs. However, a significant delay in getting the Claimant suitable provisions in place resulted in a physical and mental impact upon the Claimant. Such was the extent of the delay, that it was considered that the Defendant Local Council had acted unlawfully.
The Claimant was isolated from their classmates, which resulted in anxiety and frustration, which caused them them to self-harm. The Claimant’s school day had no routine as they were unable to attend class due to being overwhelmed. As a result, they spent a lot of their day with the receptionist or other individuals who were not teaching.
The Claimant obtained Legal Aid and proceeded to instruct Counsel to support them throughout the Judicial Review process, and subsequently lodged their claim with the Court following the obtaining of Counsel advice.
Prior to any permission decision being made by the Court, a Consent Order was entered into between the parties, stating that the Defendant conceded their position on the basis that the Defendant accepted that there had been a breach of regulations, and the Defendant agreed to issue a revised final Education, Health and Care Plan for the Claimant by a set date. The Claimant therefore agreed to withdraw their claim. By consent, it was also ordered that the Defendant would pay the Claimant’s costs, to be assessed if not agreed.
The Claimant’s Solicitors proceeded to instruct ARC Costs to assist in the recovery of legal costs by drafting a detailed bill of costs, and also to conduct negotiations and detailed assessment proceedings. Costs were ultimately recovered for the Receiving Party in the sum of £6,700.
Education Health and Care Plan Tribunal/Judicial Review Costs
An order for costs is usually awarded to the successful party in Judicial Review proceedings, but is only made in Tribunal matters if one party acts unreasonably throughout the course of the proceedings. This means that in Tribunal proceedings, if the local authority or defending party fails to respond in a timely manner, or fails to comply with Court directions, an order for costs may be made whereby they will be ordered to pay your costs incurred of bringing the claim forward.
In the aforementioned case, the parties agreed by consent for the Defendant to pay the Claimant’s costs on the basis that the Claimant had been successful in their Judicial Review claim however, if it were Tribunal proceedings, the standard order would be no order as to costs unless unreasonable behaviour could be demonstrated. Although the claim was funded by the Legal Aid Agency, in these circumstances, an inter-partes bill was prepared and served upon the Defendant, allowing them to recover higher rates (usually guideline rates are claimed) than if they were limited to Legal Aid rates.
The Claimant, in this instance, will then be required to repay any funding to the Legal Aid Agency; however, obtaining an Order for Costs and submitting an inter partes bill of costs will ultimately lead to a higher level of profit costs being recovered, and ultimately assists in protecting consumers of legal services, allowing them to continue obtaining the assistance of legal specialists in this area of law.
How can ARC Costs Assist?
ARC Costs are a team of Costs Draftsman and Costs Lawyers who specialise in assisting on all types of legal costs work, including those related to Education, Health and Care Plan EHCP Judicial Review & Tribunal Costs. As independent costs experts, we can assist one of either the Paying or Receiving Party in any set of proceedings.
If you are the Receiving Party, we can assist in preparing a detailed and accurate Bill of Costs on the costs which you have incurred in bringing this claim. We can also assist in negotiations and ensure the best possible recovery of your costs.
If you are the Paying Party and you receive a Bill of Costs which you deem to be unreasonable (and most bills to be assessed on a standard basis can be reduced by 20 – 30%), we can assist in disputing this with legal arguments and also negotiating this bill down on your behalf.
If you are restricted to Legal Aid costs, our Legal Aid costs draftsmen regularly use the CCMS system to submit legal aid costs claims and deal with all the administration on behalf of our clients and to free up the time of fee earners, thereby ensuring you can recover your maximum legal aid fees in an expeditious and efficient manner.