Claim number: CO/568/2023
In the High Court of Justice
King’s Bench Division
20 March 2023
Dexter Dias KC, sitting as a Deputy High Court Judge
The King on the application of
E (by his litigation friend and mother AA)
London Borough of Lewisham
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents, including N244 dated 6 March 2023, lodged by the Claimant and the Acknowledgement of Service (AoS) and Summary Grounds of Defence (SGD) dated 10 March 2023 filed by the Defendant.
Dexter Dias KC, sitting as a Deputy High Court Judge
- Anonymity order granted. The first claimant shall hereafter be referred to in proceedings as AA; the second claimant as E.
- Permission to amend claim form and rely upon amended grounds granted.
- Application for permission to apply for judicial review on sole ground now advanced granted.
- Expedition granted in part.
- Substantive hearing fixed for 6 June 2023 with one day allocated, to be reserved to Dexter Dias KC, sitting as a Deputy High Court Judge.
- Costs reserved.
Case Management Directions
- The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within  days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR PD 8C 5.5 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR PD 8C 12.1.
- Any application by the Claimant to serve evidence in reply shall be filed and served within  days of the date on which the Defendant serves evidence pursuant to 1(b) above.
- The parties shall agree the contents of the hearing bundle and the Claimant must file it with the Court not less than  days before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant shall, if requested by the Court lodge hard-copy versions of the hearing bundle.
- The Claimant must file and serve a Skeleton Argument not less than  days before the date of the hearing of the judicial review.
- The Defendant must file and serve a Skeleton Argument not less than  days before the date of the hearing of the judicial review.
- The parties shall agree the contents of a bundle of authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic and hard copy versions of the bundle must be lodged by the Claimant with the Court not less than  days before the date of the hearing of the judicial review.
1 This case involves a vulnerable child. It is essential that the Art. 8 rights of the child and his family be protected. The first claimant (child’s mother) must be anonymised to prevent jigsaw identification of the child.
2. The defendant now provides significant (including overnight) support in the home. It is reasonable for the claimant to refine her grounds to reflect the changing factual circumstances and focus on what remains truly in dispute.
- The arguability test is plainly met.
- I find that the claimant has arguable grounds with a realistic prospect of success (Sharma v Brown-Antoine  1 WLR 780 at [14(4)]; CPR 54.4.2 and Judicial Review Guide 2022 at §9.1.3). As explained in Maharaj v Petroleum Company of Trinidad and Tobago  UKPC 21, the threshold for the grant of leave to apply for judicial review is “low” (at , per Lord Sales).
- The several arguments advanced by the defendant in its AoS/SGD can be advanced at the substantive hearing. Taken together with the careful submissions of the claimant, they unmistakably reinforce the point that there is an issue of substance that merits being tried and which is eminently arguable.
- I do not understand that the defendant contends (or could credibly) that it does not owe a s.20 duty to the child. Indeed, the defendant states that the first claimant is “prevented, because of E’s behaviour, from providing suitable care for him” and further that “as a result he appears to require accommodation” (SGD §8).
- The defendant does not suggest that anyone other than the defendant itself has the duty to provide that accommodation. It is not doing so. To my mind, for the purposes of the permission test with its “low” governing threshold, it is plainly arguable that the failure to provide accommodation is unlawful.
- The defendant claims a “reasonable period” of grace to find suitable accommodation (SGD):
“9. …[the defendant has] since 20 January been conducting a widespread and thorough search for placements that would best meet E’s needs and at the moment there is nowhere available. In the meantime, it is helping AA to care for E by providing 24-hour care. It is implicit that a local authority has a reasonable period, the length of which depends on the particular circumstances, in which to find accommodation under section 20 before its failure to do so becomes unlawful.
- That reasonable period has not expired and so LBL denies the allegation of breach.”
- The court acknowledges the difficulties in locating placements for children with additional and complex needs, not just in applications before this Division, but in cases coming before the Family Division, including the National Deprivation of Liberty Court (see judgment in Re X (Secure Accommodation: Lack of Provision) EWHC 129 (Fam) – “the parlous level of provision” at , per PFD).
- Even if (which I do not decide) the defendant’s analysis is correct, it is also arguable that such reasonable period has expired due to the high degree of need and risk in this case. It must be remembered that this child needed 3:1 specialist supervision in a dedicated residential placement and constant support due to the complexity of his needs. The placement served notice. The first claimant states this was because the placement was not able to safely meet his needs or those around him. Now one carer is provided overnight in the family home. The child has diagnoses of severe learning delay, autism, Attention Deficit Hyperactivity Disorder (ADHD) and delayed speech. There is evidence before the court of highly dysfunctional and emotionally unregulated behaviour including acts of violence directed against the mother and staff (see SFG at §8 and AA’s updating statement). I judge that there are obvious and serious safeguarding risks here.
- The fact that the defendant is now providing 24-hour support arguably amounts to a mitigation of breach of duty but not its negation.
- Overall, I judge that the claimant’s prospects of succeeding are realistic.
- Given the evidence that the situation in the house is precarious and unsustainable, I find that a measure of expedition is now justified. Granting expedition amounts to “jumping the queue”. But I judge that the degree of need and risk in this case involving as it does a highly vulnerable child and the concomitant risk to his mother and carers seeking to support him at home, fully justifies earlier judicial consideration than usual.
- I am prepared to authorise the following modifications to orthodox timetabling in expediting this claim:
a. Abridging timescales (see case management directions above);
b. Deeming an earlier substantive hearing date is justified;
c. Fixing substantive hearing for 6 June 2023 with an ELH of 1 day.