The NHS is responsible for paying for people in care that are deemed to have a health need but with experience, we have found that the NHS avoid their duties thereby avoiding funding people’s care and instead, the person in care has to use their assets to fund their care.
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You may be in a position where you have exhausted all internal procedures but have still not received the outcome you believe is fair following an assessment by a Local Authority or NHS Trust. One remedy is called judicial review and it is the law courts that deal with it.
By commencing judicial review, the Court will be able to look at the overall fairness of decisions including the decision-making process completed by Local Authorities and NHS Trusts. The main use of judicial review is for the Court to ensure that public bodies stay within reasonable bounds when they take decisions. The Court generally allows public bodies a wide area of discretion so there are instances where they will not intervene.
Judicial review is about ensuring that public bodies have acted broadly within the law rather than merits of a decision. If a Court finds that a Local Authority or NHS Trust has made an unlawful decision they will usually order it to go away and retake it, in a lawful manner, rather than dictate the outcome of the decision.
It may be the case that the NHS reaches the same decision but this time around it will do so on the ‘right’ grounds. Or the implications of the judicial review may give room for manoeuvre – on occasions the Court can directly order provision of a service.
Historically, judicial review cases are more difficult to conduct successfully against the NHS but over the last few years, the Courts have been prepared to consider whether local NHS policies amount to an unlawful decision.
The Court can scrutinise the decision-making process to ensure that all relevant factors have been taken account of. Usually the Court will look only to see that all the relevant factors have been taken account of, and not stated about how much weight should have been placed on a particular factor.
This is similar when a judicial review claim has been issued, the Court will be more interested in how a decision has been reached, rather than what that decision is.
There are a number of rules that have to be adhered to if a person brings a judicial review case;
- Permission for judicial review – Permission from a High Court is first required before bringing a judicial review. This will usually be granted if the Judge believes there is an arguable case.
- Time limits – An application must be bought within three months. It can still be rejected in this time period if the Court believes it has not been bought promptly. Due to the time limit the judicial review should be put in at the same time as the complaint but adjourned until the complaint has been dealt with.
- Length – A judicial review can take months or even years to come with Court.
Sometimes judicial review might not be the way forward for example if a complaints procedure can deal with the issue and there are no legal disputes.
There is also uncertainty with judicial review as the Court does not always bring certainty to an issue. The results of judicial review are neither predictable nor consistent. The Court can avoid getting involved in the detail of community care assessments by Local Authorities or NHS Trusts.