Case No: CO/3823/2022
In the High Court of Justice
King’s Bench Division
14 November 2022
The King on the application of ES (a child by his litigation friend N)
Buckinghamshire County Council
Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant.
Order by Hugh Southey KC (sitting as Deputy Judge of the High Court)
- The application for permission to apply for judicial review is refused.
- The Claimant’s application for an anonymity order is granted pursuant to CPR 39.2(4) and/or the Court’s general case management powers in CPR 3.1(2).
- There be substituted for all purposes of this case, in place of references to the Claimant by name whether orally or in writing, references to “ES”.
- Pursuant to CPR 5.4(c), a person not a party to the proceedings may obtain a copy of the statement of case, judgment or order of the court records, only if such statement of case, judgment or order has been anonymised.
- No order for costs.
- This claim argues that ‘the failure to secure ES’s Special Educational Provision (namely a dedicated 1:1, speech and language therapy, and occupational therapy) under section 42 of the Children and Families Act 2014 is and remains unlawful’. It is said that there has been a failure to comply with an education, health and care plan (‘the plan’). The position of the Defendant is that it has made the necessary provision.
- There is an appeal to the First-Tier Tribunal (‘the FTT’) that challenges ES’s Special Educational Provision. It does not appear to be in dispute that the appeal will not consider the implementation of existing provision. However, it does appear to me that it will be in a position to clarify any provisions of the plan that are currently unclear.
- The issue of 1:1 support appears to turn on the meaning of ‘dedicated’ in the plan. I can see no reason why the Defendant’s interpretation of that term is unlawful. If there is a need for further clarity, that can be provided by the FTT.
- In relation to speech and language therapy the summary grounds of defence state that all provision has been provided. In addition, the claim seems to focus on parental liaison. The requirement for that is for 3 hours per year and a year has not passed. It appears to me that the 2nd point is fatal. Even if that is wrong, it appears to me that there is no basis for rejecting the factual claims of the Defendant.
- It appears that the dispute about occupational therapy does not relate to an alleged failure to provide the therapy specified in the plan. It relates to alleged delay in providing additional therapy. As a consequence, it appears to me that there is no basis for it to be said that the delay is unlawful.
- I have considered whether to await the outcome of the FTT (as suggested by the Defendant). It appears to me that would encourage the sort of rolling judicial review that has been discouraged by the Court of Appeal (e.g. R (Spahiu) v SSHD  1 WLR 1297 at ).
- The Claimant is plainly a vulnerable child so I make orders intended to ensure anonymity.