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Investigation Manual

38 Legal challenges

38.1 Judicial Review

The Legal Manual is the primary guidance to refer to when we receive a judicial review claim.

An application for judicial review (JR) must be made promptly and in any event not later than three months after the grounds to make a claim first arose. The Court has the power to extend that time, but the claimant must have very good reason for the delay before the Court will do so. There is a pre-action protocol: see https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv

Key stages of the pre-action protocol are:

  • The claimant should send a letter before claim. The protocol includes a standard format for this letter which people are encouraged to use, and advice about content. Please be aware some claimants may not use the standard protocol format for the letter before claim – if that happens Investigators still need to follow this process.
  • The defendant – that is us in the cases of challenges to our actions or decisions – should normally respond within 14 days, using a standard format.

Because of the time limit in the protocol, we need to act promptly on explicit or implicit threats to seek JR. They should be referred to the Investigator’s Assistant Ombudsman immediately and they will have oversight of the process. If a threat of legal action is made but it is not clear whether JR is intended, we must ask whether the letter is intended as a letter before claim and should refer to the time limit for making an application. If the Investigator is absent, the Team Coordinator must alert the Assistant Ombudsman. They will inform the Director of Investigation and may involve the Ombudsman. If the Assistant Ombudsman is absent, it should be referred to another Assistant Ombudsman. Do not delay.

Responses will usually be sent by the Assistant Ombudsman or our legal advisers. Where a case is referred to our legal advisers, the request should summarise the case and respond to the points being raised. This need not be detailed: the key issue is whether we might have got something wrong and ought to reopen the case. If not, the decision should be flagged, together with any challenges and other relevant documents. This saves time and, therefore, legal costs. The Investigator can send the letter before claim, relevant papers and a reasoned analysis direct to our legal advisers for a response, but only with the approval of an Assistant Ombudsman. 

If a JR claim form is received from the Court, time is of the essence, particularly if there has been no pre-action protocol allowing us to formulate grounds of defence. The Acknowledgement of Service must be filed at Court within 21 days of service of the claim form. The procedure is the same as for a letter before claim: the claim form, any documents received with it and the relevant papers are sent by the Investigator to our legal advisers, with the approval of an Assistant Ombudsman. There is unlikely to be much time to prepare a note on the merits of the claim before despatching the papers. But at the very least a copy should be made of the claim form and bundle of documents (if not too voluminous) plus any other papers thought to be relevant. 

38.2 Allegations of us breaching the Human Rights Act 1998

Claims alleging a breach of human rights must normally be brought within 12 months of the alleged breach. Such allegations may be linked to JR claims or they may be pursued as a free-standing claim. If made as part of a JR claim, the JR time limits and protocols will apply.

Allegations of Human Rights Act breaches must be brought to the immediate attention of the Assistant Ombudsman, who will take action as for JR cases.

38.3 Allegations of us breaching the Equality Act 2010

Claims alleging a breach of the Equality Act must normally be brought within six months minus one day of when the alleged breach occurred. Claims are heard in the County Court if brought alone or can be linked to a JR claim and form part of those proceedings. If made as part of a JR claim, the JR time limits and protocols will apply.

Allegations of Equality Act breaches must be brought to the immediate attention of the Assistant Ombudsman, who will take action as for JR cases.