DVH -v- North Somerset Council

Case number: AC-2025-CDF-000189

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

In the matter of an application for judicial review
(with an application for urgent consideration)

11 November 2025

Before:

Judge Barry Clarke,
sitting as a Judge of the High Court

Between:

The King
on the application of
DVH
(By his father and litigation friend, DVP)

-v-

North Somerset Council

Order

Notification of the Judge’s Decision (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant

ORDER BY JUDGE BARRY CLARKE
Sitting as a Judge of the High Court

  1. Anonymity:

(a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or section 6 of the Human Rights Act 1998:

(i) the names of the Claimant and of his litigation friend are to be withheld from the public and must not be disclosed in any proceedings in public; and

(ii) the Claimant and his litigation friend are to be referred to orally and in writing as DVH and DVP respectively.

(b) Pursuant to section 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of his litigation friend or of any matter likely to lead to the identification of the Claimant or his litigation friend in any report of, or otherwise in connection with, these proceedings.

(c) Pursuant to CPR 5.4C(4):

(i) the parties must within 7 days file a redacted copy of any statement of case filed, omitting the name, address and any other information likely to lead to the identification of the Claimant or his litigation friend;

(ii) if any statement of case subsequently filed includes information likely to lead to the identification of the Claimant or his litigation friend a redacted copy omitting that information must be filed at the same time;

(iii) unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.

(iv) Any person wishing to vary or discharge this Order must make an
application, served on each party.

(d) Pursuant to CPR r.39.2(5) this Order will be published on the website of the Judiciary of England and Wales.

(e) This order has been made without a hearing. Any party affected by this order may apply within 7 days of the service of this order on that party to have it set aside, varied, or stayed.

  1. Interim relief: The application for an interim mandatory order is refused.
  2. Permission: Permission to apply for judicial review is refused. The Defendant is not required to file an Acknowledgment of Service or Summary Grounds of Defence, unless paragraph 5 below applies.
  3. Costs: As the Defendant has yet to file an Acknowledgement of Service or Grounds of Defence, there be no order as to costs. However, the Court may make an order for costs after any oral Permission Hearing.
  4. Renewal directions: Where the Claimant makes a valid request for reconsideration (see notes below), the following directions apply:

(a) The Permission Hearing is to be listed with a time estimate of 30 minutes, including submissions by the parties and an oral judgment by the judge. If the Claimant considers that more time should be allowed, the time estimate must be included with the request for reconsideration of permission.

(b) By 25 November 2025 (that is, within 21 days of the Claimant’s claim made on 4 November 2025), the Defendant must file with the Court its Acknowledgment of Service and Summary Grounds of Defence.

(c) By 9 December 2025, the Claimant must file and serve an electronic copy of the Permission Hearing Bundle, prepared in accordance with the guidance on the Administrative Court website and containing the following documents:

(i) the Claim Form, Statement of Facts and Grounds and any evidence or other documents filed with the Claim Form;

(ii) any Acknowledgment of Service, Summary Grounds of Defence and any accompanying documents served by any Defendant and/or Interested Party;

(iii) any Reply or other document served by any party to the proceedings at the paper permission stage;

(iv) this Order;

(v) the renewed application for permission to apply for judicial review (on Form 86B); and

(vi) any other document the Court would be likely to consider material to its decision on permission to apply for judicial review.

(d) If the Claimant fails to comply with sub-paragraph (b), permission will be determined on the basis of the renewal notice and the documents before the Court at the paper stage, unless at the hearing the Court otherwise directs.

(e) At least 7 days before the date listed for the Permission Hearing, the Claimant must file and serve:

(i) a skeleton argument, maximum 10 pages;

(ii) an electronic bundle containing any authorities which the Court needs to read at the hearing (the Authorities Bundle: see para. 22.1.2 of the Administrative Court Judicial Review Guide); and

(iii) if requested by the Court, a hard copy version of the Permission Hearing Bundle and Authorities Bundles.

(f) At least 7 days before the date listed for the hearing, any party other than the Claimant intending to participate in the hearing must file and serve any skeleton argument, maximum 10 pages.

(g) If a party fails to comply with sub-paragraph (c), (e) and/or (f), the Court may have regard to the failure when considering any question about costs at the hearing.

REASONS

    1. Anonymity. The claim involves the education of the Claimant, who has complex special educational needs, and therefore relies on personal medical information about which he has a reasonable expectation of privacy. Accordingly, there are compelling reasons for the limited derogations from the principle of open justice in paragraph 1 of this Order.
    2. Interim relief/permission. The Claimant is under an Education, Health and Care (EHC) plan and he is in a “phase transfer” year, such that the Defendant must issue a final amended EHC plan by 31 March 2026, identifying for him a post-16 placement. The application for judicial review challenges the Defendant’s refusal (as it is described) to commission seven assessments required to provide up-to-date confirmation of the Claimant’s educational needs. The Claimant acts via his litigation friend, his father. The father says that the Defendant’s refusal prevents a lawful annual review of the Claimant’s EHC plan. The Claimant contends that the Defendant has failed to act promptly on new and significant evidence of his needs and, in bad faith, has proposed an unreasonable delay in addressing the matter, designed to frustrate the statutory appeal process to the First-tier Tribunal (such that the Claimant’s needs cannot be properly resolved ahead of the academic year commencing September 2026).
    3. The Claimant’s father has identified this as an urgent application. The Claimant seeks interim relief in the form of a mandatory order requiring the Defendant to commission all seven assessments within seven days, to circulate them by 28 November 2025 and then to conduct a lawful “phase transfer” review by no later than 3 December 2025.
    4. I will briefly describe the relevant legislative provisions:
      (a) Section 42(2) of the Children and Families Act 2014 (the Act) places upon a local authority a statutory duty to secure specified educational provision for a child or young person in accordance with the relevant EHC plan.

      (b) Section 44(1) of the Act provides that a local authority must review an EHC plan that it maintains (a) in the period of 12 months starting with the date on which the plan was first made, and (b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.

      (c) Section 44(2)(a) of the Act provides that a local authority must secure a re- assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by the child’s parent.

      (d) Section 44(7) provides for Regulations to make provision about reviews and re- assessments, in particular (a) about other circumstances in which a local authority must or may review an EHC plan or secure a re-assessment (including before the end of a specified phase of a child’s or young person’s education); and (c) about amending or replacing an EHC plan following a review or re-assessment.

      (e) Those Regulations are the Special Educational Needs and Disability Regulations 2014 (SI 2014/1530). Regulation 2 provides that a “transfer between phases of education” includes a transfer from secondary school to a post-16 institution. Regulation 18(1) provides that, where a child or young person is within 12 months of a phase transfer, the “local authority must review and amend, where necessary, the … EHC plan before 31 March in the calendar year of the child or young person’s transfer from secondary school to a post-16 institution”.
    5. The Claimant’s request for an expedited review of his EHC plan is based on evidence that he possesses “dual exceptionalism”. I have read the correspondence passing between the father and the Defendant. I now refer to the Claimant’s detailed statement of proposed grounds for challenge (pp 27-29), which read slightly differently to the abbreviated grounds on Form N463 (p 34).
    6. The first ground of challenge is that the Defendant’s refusal to act promptly has rendered it in breach of its statutory duty under section 42 of the Act. This is not arguable. The SEND officer identified an alternative way forward which the father challenged; whether or not the father was right to contend that the alternative assessments were insufficient, a fair reading of the correspondence does not indicate either a refusal to act or a refusal to act promptly. At the time the claim was filed at Court, there had been no decision. In any event, the local authority cannot arguably be in breach of its Section 42 duty when the agreed deadline of 31 March 2026 is still almost five months away.
    7. The second ground of challenge is that the Defendant has engaged in unreasonable delay (and also bad faith – see p 34) with a view to frustrating both the Claimant’s phase transfer and the timeline for appealing to the First-tier Tribunal. I presume this is said to be a procedural impropriety. That is not arguable. There is no evidence that the local authority has acted unreasonably or in bad faith; to the contrary, the correspondence relied upon indicates a willingness to engage and recognises that the maths assessment may properly require reflection in a revised EHC plan. The Claimant’s litigation history involving the First-tier Tribunal and Upper Tribunal is not a properly arguable basis upon which to infer a determination on the Defendant’s part to act unlawfully. There is no evidence that the Defendant is trying to take advantage of a backlog of appeals in the First-tier Tribunal by dragging this case out. It is the First-tier Tribunal, and not this Court, which would ultimately decide any appeal against a refusal to reassess the Claimant’s needs or replace his EHC plan; see section 51(2)(d) and (e) of the Act.
    8. The third ground of challenge is that the Defendant has irrationally failed to gather necessary evidence in the form of the seven requested assessments. That is not arguable. The Defendant’s SEND officer identified some alternative testing that was said to cover the vast majority of the requests made and, when the father rejected this, she said that she would consider the matter further. That was not a refusal to gather the evidence, just as the reply from the Defendant’s solicitor sent on 23 October 2025 did not (as is alleged) constitute a refusal to gather the evidence.
    9. The fourth and final ground of challenge is that the Defendant has a history of non- compliance. Much of the material provided by the Claimant’s father relates to prior proceedings before the First-tier Tribunal and Upper Tribunal, but this does not arguably show, as alleged, an established pattern of non-compliance such as to make it appropriate for this Court to infer bad faith.
    10. I therefore refuse the grant of interim relief. Applying normal principles, this case does not, as it stand, raise a serious issue to be tried; in any event, the balance of convenience does not favour granting the urgent order sought. The underlying claim lacks merit. The Defendant is still in the process of considering what assessments are necessary for the Claimant, and is doing so well in advance of the statutory deadline.
    11. Further, I find that none of the grounds in this application for judicial review are arguable. I would further add that judicial review is a remedy of last resort and that the proper avenue for the Claimant to challenge the revised or re-assessed EHC plan, once completed, is by way of appeal to the First-tier Tribunal.

    Signed: Judge Barry Clarke

    Date: 11 November 2025