CHALLENGING DECISIONS OF PUBLIC BODIES

Ben Hoare Bell has a wealth of experience of challenging decisions made by public bodies, typically central or local government, the NHS or other government agencies. Decisions challenged may affect specific individuals or a class of people with disabilities or other interests. Challenges may be based partly on an allegation that there has been a breach of a person’s human rights under the European Convention on Human Rights (which was incorporated into UK law by the Human Rights Act 1998) or under European Community Law.

Challenges may be brought through negotiation, formal complaints or Ombudsmen processes or ultimately through the process of judicial review where the High Court reviews whether the decision under challenge was made lawfully. This is a complex and specialist area and we are one of a small number of firms in the North of England who are authorised to conduct such work under the Legal Aid scheme. The types of challenges we have become engaged in include:

  • Reorganisation and Closure of Services
  • Professional Disciplinary Procedures
  • The Disclosure and Barring Service (DBS)
  • Other Public Body Decisions

We can offer appointments at our Newcastle, Gateshead and Sunderland offices.

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REORGANISATION AND CLOSURE OF SERVICES

Local authorities and NHS bodies or other public bodies may wish to reorganise their services, often with the objective of making savings.

When doing so they must take account of specific duties or expectations that they will consult with those affected by their proposed changes including people with disabilities and their carers.

Separately, public bodies making decisions with the potential to affect those with disabilities must comply with the Public Sector Equality Duty which is contained in section 149 of the Equality Act 2010. This imposes a duty on all public bodies, including local authorities and the NHS, when exercising their functions to have due regard to the need to:

  • Eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Act;
  • Advance equality of opportunity between people who share a protected characteristic and those who do not; and
  • Foster good relationships between people who share a “protected characteristic” and those who do not (“protected characteristic” includes any disability).

This duty applies to, for example, a decision to change the way in which a local authority or NHS body contracts with care providers, a decision to change charging policies.

There is extensive case law setting out the duties of public bodies in these circumstances. It is vital that those who are considering a legal challenge consult lawyers who have experience of this type of public law challenge, not least because of the very tight time limits that the law allows for such challenges to be started in court using the process known as judicial review.


PROFESSIONAL DISCIPLINARY PROCEDURES

Doctors, nurses, midwives and other professionals are subject to the disciplinary procedures of their own professional bodies. They may be disciplined for alleged breaches of conduct or professional standards and stand to lose their professional registration.

We have represented professionals from a variety of disciplines in such proceedings. We are able to offer specialist advice and representation to professionals.


THE DISCLOSURE AND BARRING SERVICE (DBS)

The DBS now has responsibility for maintaining the children’s barred list and the adults’ barred list. Those on the lists are prevented from working or volunteering in any activities that the DBS regulates (‘regulated activities’).

Being placed on a list can damage a person’s employment or career prospects. Continuing to work in a regulated activity once included in a barred list is a criminal offence. We can assist by providing advice or representation during the investigation stage with a view to avoiding further action being taken by the DBS. We can assist with appealing decisions to place a person on the barred list to the First Tier Tribunal.


OTHER PUBLIC BODY DECISIONS

As well as acting regularly on behalf of individuals who are in dispute with local authorities, central government or the NHS, our team has successfully challenged decisions made by government agencies or organisations fulfilling a public role, for example the parole board, the prison service and foster parent panels.


WILL I HAVE TO PAY FOR LEGAL ADVICE AND REPRESENTATION?

Legal Aid is available for these types of work subject to meeting financial criteria. If you think you may be eligible for legal aid we can take some financial details from you during an initial telephone call or meeting and generally we will be able to give you an indication as to whether you qualify for legal aid at that point. The financial test involves an assessment of your (and where relevant your family’s) income and capital. You can check whether you are eligible for legal aid by going to the LAA’s website.

If you are not eligible for legal aid we can discuss with you the likely cost of you paying privately for the work we do for you. Depending on the nature of the work, it will often be possible for us to work on the basis of a fixed fee or on the basis that we will limit our costs to an agreed sum at each stage of your case. Our costs may vary depending on the level of experience of the person dealing with your case.