AB -v- Bristol City Council (anonymity order and application for judicial review)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim Number: AC-2024-CDF-000078

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

1 August 2024

Before:
His Honour Judge Lambert
sitting as a judge of the High Court

Between:
The King on the applications of
AB
(a child, by his mother and Litigation Friend CD)
-v-
Bristol City Council (Defendant)
and
Secretary of State for Education (Interested Party)

Order

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 lodged by the Claimant and the Acknowledgement of Service filed by the defendant

ORDER by His Honour Judge Lambert sitting as a judge of the High Court.

  1. Anonymity. Pursuant to CPR 39.2, the Claimant shall not be identified. There will be an anonymity order, the Claimant is to be known as AB and his mother and litigation friend is to be known as CD.
  2. The application filed by the Claimant dated 28 May 2024 seeking permission to rely on the second witness statement of the litigation friend is granted.
  3. The application filed by the Claimant dated 21June 2024 seeking permission to rely on the third witness statement of the litigation friend is granted.
  4. The application filed by the Defendant 4 July 2024 seeking permission to file amended Summary Grounds of Resistance is granted.
  5. The application for permission to apply for judicial review is refused.
  6. The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.

Reasons

I understand the concerns raised over the potential impact of the Safety Valve Policy or Agreement. It will be very worrying for your mother that you might be adversely affected by reduced funding leading to reduced educational provision for you. That has not happened, however, and it is not reasonably to be foreseen at the moment. There is no proper target against which to direct a claim for judicial review. The claim is essentially speculative and I cannot permit you to proceed with such a claim.

The Defendant demonstrates you have no arguable grounds based on a lack of standing and/or the claim is pre-emptive or premature and/or you have a more suitable alternative remedy and/or the claim is misdirected.

With apologies to any judge not familiar with the common abbreviations in this area I will adopt these in the balance of these reasons.

Your claim is as a child with an EHCP and SEND. Your Litigation Friend fears that the SVA might adversely affect you, but this is for nebulous or wholly generalised reasons. There is no evidence that the SVA has had, or will have, or is even likely to have, an adverse effect on you, or in fact, any other child with SEND or an EHCP.

Even if the SVA does have this effect, there is a right of appeal under s.51 of the Children and Families Act 2014 to the First Tier Tribunal against a local authority’s refusal to assess whether a child needs an EHCP and against a refusal of an ECHP after an assessment or against the terms of an EHCP. When an EHCP is made, a local authority is under a strict duty to secure the provision which it specifies – Section 42 of the Children and Families Act 2014. Thereafter should the authority fail to comply with the duty, the parent then has a right to enforce the terms of the EHCP through a judicial review claim. I am aware that in special circumstances the statutory procedure will not supplant judicial review but these do not prevail here.

When I describe the claim as pre-emptive or premature I mean it is really directed towards a contingency concerning the possibility that you or others, may not receive appropriate SEN provision. But that has not happened and may not happen at all. You do not explain, sufficiently or indeed at all, how the decision to enter into the SVA could affect you adversely.

If my reasoning above is flawed I am not satisfied that any ground is reasonably arguable.

Ground 1
I am informed that the council took the view that, by reason of the timescale set by Central government, compliance with the notice provisions was impracticable and the chair agreed. The court is only entitled to intervene if that decision was Wednesbury unreasonable. I could identify no reasonable argument that it was.

Ground 2
I believe that the defendant is right to say there is no duty to consult in these circumstances.

Ground 3
The report to Cabinet on 5 March 2024 on the SVA contained information on equality considerations. It seems to me this was sufficient in the circumstances.