CW -v- The Proprietor of the Fernwood School (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: CO/1211/2023

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

8 June 2023

Before:

His Honour Judge Rawlings

Between:

The King on the application of
CW (acting by his litigation friend SP)

-v-

The Proprietor of the Fernwood School

and

Nottingham City Council (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 the His Honour Judge Rawlings

  1. Pursuant to CPR 39.4 (4) the claimant is granted anonymity·and is to be referred to as “CW’ and the Claimant’s litigation friend is granted anonymity and is to be referred to as “SP”. The identity of the claimant and litigation friend shall not be disclosed outside of these proceedings. There shall not be disclosure in any report of the proceedings of the name or address of the claimant or litigation friend or any details leading to the identification of the claimant or litigation friend. This application shall be known and listed only as “CW’ acting by his litigation friend SP” v The Proprietor of the Fernwood School and Nottingham City Council”.
  2. The application for permission to apply for judicial review is granted on grounds 1 and 2 and refused on ground 3.
  3. The hearing of the claim is expedited and shall be listed for hearing in week commencing 14 August 2023, or as soon thereafter as the court can accommodate the hearing, with a time estimate of half a day. If the parties disagree with this time estimate they shall provide a written time estimate within 7 days of service of this order.

Reasons for granting Anonymity

  1. The Claimant is a vulnerable individual, there is no material public interest in disclosure of the identity of the Claimant. The grounds for granting anonymity to the Claimant to protect him from possible harm outweigh the public interest in his identity being disclosed.

Observations on grounds 1 and 2

  1. As for ground 1 the Defendant refers to the decision of Fordham J in R (CHF) v Headteacher and Governors of Newick CE Primary School and East Sussex CC [2021] EWHC 2512 {Admin) in support of its case that no duty falls on the Defendant under Section 100 of the Education and Inspections Act 2006 to provide suitable full-time education to the Claimant.
  2. In R (CHF) Fordham J determined that a Headteacher could impose offsite schooling upon a pupil for safeguarding reasons. The judge was not however considering whether, in those circumstances a duty fell on the school under Section 100.
  3. The Headmaster of the Defendant purports to have directed that the Claimant not attend school for safeguarding reasons, that decision is not challenged.
  4. It is arguable that a duty falls on the Defendant under Section 100 to provide suitable full time education to the Claimant even if he was excluded from attending the Defendant school for safeguarding reasons rather than on disciplinary grounds.
  5. It is arguable that what has been provided or offered to the Claimant does not amount to suitable full-time education.
  6. As to Ground 2, the Defendant accepts that the Claimant is arguably disabled and that the decision to deny him access to the school is unfavourable treatment for the purposes of the Equality Act 2010, but argues that such unfavourable treatment is not in consequence of the Claimant’s disability, but it is at least arguable that it is.

Reasons for refusing permission on Ground 3

  1. No particulars are given of which complaints of SP it is alleged that the Defendant has failed to undertake a reasonable investigation of or why the investigations carried out by the Defendant were less than reasonable or what duty is alleged to be owed by the Defendant to investigate SP’s complaints.
  2. No particulars are provided of the duty of transparency said to have been breached by the Defendant.
  3. The complaints of a failure to carry out a reasonable investigation and a lack of transparency are not linked to any decision of the Defendant.
  4. There is no real prospect of ground 3 succeeding.

Case Management Directions

  1. 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 21 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 54.8 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 54.14.
  2. Any application by the Claimant to serve evidence in reply shall be filed and served within 14 days of the date on which the Defendant serves evidence pursuant to 1 (b) above.
  3. The parties shall agree the contents of the hearing bundle and must file with the Court an electronic version of the bundle in accordance with the Guidance on the Administrative Court website and 2 hard-copy versions of the hearing bundle at least 2 weeks before the hearing of the Judicial Review.
  4. The Claimant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the Judicial Review.
  5. The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 3 days before the date of the hearing of the judicial review.
  6. The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and the hard copy version of the bundle, shall be lodged with the Court not less than 2 days before the date of the hearing of the judicial review.
  7. CPR 2.11 shall not apply to these proceedings.
  8. If permission has been granted on some grounds but refused on others, the Claimant may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed Form 868 within 7 days after the date this order is served on the Claimant. The reconsideration hearing will be fixed in due course. However, if all parties agree and time estimates for the substantive hearing allows, the reconsideration hearing may take place immediately before the substantive hearing. The Administrative Court Office must be notified within 7 days of the service and filing of Form 868 if the parties agree to this course.

Reasons for Expediting Hearing

  1. The Claimant asked that the hearing be expedited in the hope that it may take place before the Claimant sits his GCSE exams. Unfortunately that has not be possible, but given that this case involves a vulnerable child at a key point in their education it is appropriate to expedite the hearing so that it takes place before the start of the new school year.