April 26, 2024

GH and others -v- The Mayor of London (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Claim number: AC-2024-LON-000743

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

26 April 2024

Before:

The Honourable Mr Justice Eyre

Between:

The King on the application of
1) GH (a child, by her father and litigation friend, KL)
2) IJ (a child, by his father and litigation friend, KL)
3) MN (a child, by her mother and litigation friend, QR)
4) OP (a child, by his mother and litigation friend, QR)

-v-

The Mayor of London

and

London Borough of Hackney

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 Claimants and the Acknowledgement of Service filed by the Defendant

UPON it appearing that non-disclosure of the identity of the Claimants and their litigation friends is necessary in order to secure the proper administration of justice and to protect the interests of minors pursuant to rule 39.2(4) of the Civil Procedure Rules and section 11 of the Contempt of Court Act 1981 and rules 5.4C of the Civil Procedure Rules

ORDER by the Honourable Mr Justice Eyre

1. The Claimants have permission to rely on the Reply and the other material in the Supplemental Bundle.

2. The Claimants’ application for anonymisation is granted to the following extent, and pursuant to CPR Rule 5.4A-5.4D and Rule 39.2, with effect from the date of this order and until further order:
(a) The Claimants and their litigation friends shall hereinafter be referred to in these proceedings as “GH, IJ, KL, MN, OP, and QR” respectively and there shall be substituted for all purposes of this case, in place of references to the name of the Claimant, reference to “GH, IJ, KL, MN, OP, and QR”;
(b) There shall be no publication of any name, address, picture or other information likely to lead to the identification of the Claimant as being the Claimant in these proceedings;
(c) In paragraph (b) “publication” means communication to the public or any section of the public whether by way of report of the proceedings or otherwise. It includes publication in a newspaper or broadcast, or on the internet, by any person;
(d) The Defendant, and any party served with or given notice of the anonymity order, has permission to apply to discharge or vary that order. Any application for that purpose must be made in writing, on notice to all parties;
(e) Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (i) the Claimant is referred to in those documents only as “GH, IJ, KL, MN, OP, and QR”; and (ii) any reference to the names of the Claimant be deleted from those documents;
(f) Any application for permission to inspect or obtain a non-anonymised version of a document must be made on notice to the Claimant and in accordance with CPR r.5.4C(6).

3. The application for permission to apply for judicial review is refused.

4. No order as to costs.

Reasons

1. The anonymisation of the names of the Claimants and of their litigation friends is necessary in the interests of justice and to protect the interests of children. However, I am not persuaded that in light of the importance of the principle of public justice that it is necessary to prohibit identification of their schools. The identification of the schools does not create any real risk of “jigsaw” identification of the Claimants. The Claimants express concern as to the risk of anti-semitic abuse. However, prohibiting identification of the schools will not materially reduce the risk of such conduct in circumstances where the locations and nature of the schools are matters of public knowledge.

2. I permit the Claimants to adduce the Reply and the further evidence. In light of the assessment I have made of the merits no prejudice is caused to the Defendant by such a course and it is appropriate for the Claimants to be enabled to put their case as fully as they wish.

3. I will analyse the grounds separately. However, they are to be considered against the background that the decision was a policy decision taken by an elected office-holder and was as to the allocation of public funds. It was, moreover, made in reasoned terms after consultation. Such a decision is of course by no means immune from challenge but the nature of the decision in those respects is of relevance.

4, The following further points are of note:
a. The facts that a decision could rationally have been taken to make the provision which the Claimants seek and that the Defendant could rationally have sought further information do not, without more, mean that it was not open to him rationally to decide not to make the provision and/or that he had sufficient information.
b. The Defendant was entitled to take account of the distinction made in the Education Act and other legislation between state and non-state schools.
c. The Defendant was entitled to take account of the facts that the provision being extended was a top up provision for those who did not receive free school meals by way of provision from central government and that such meals were not provided to those in non-state schools by central government.

5. There are two elements to ground 1 neither of which has a real prospect of success.

6. As to the first element: almost every decision of this kind will be made without absolutely complete information and there will frequently be further information which a rational decision-maker could seek. The question is not whether the Defendant could have sought more information but whether it was irrational that he did not. Here the Defendant had a range of information and there is no prospect of a finding that he was not entitled to conclude that he had sufficient information to make a proper decision as to whether to extend the provision to non-state schools. It is relevant in that regard that the issue of whether to extend the provision to non-state schools was one which could readily be identified and understood and where the key considerations were capable of identification at a high level of generality.

7. The second element is also not arguable with a real prospect of success. The considerations I have set out above are significant and it cannot realistically be said that the decision was outside the range of those open to the Defendant.

8. Ground 2 asserts a breach of the public sector equality duty. That duty is one which requires proper consideration of the relevant matters but which does not mandate a particular outcome after such consideration. It is apparent that the Defendant did consider the equalities impact of his decision. The Claimants’ contention in truth is that the Defendant’s consideration was flawed by his reliance on out of date and/or incomplete information. The Defendant is right to say that he had a wide scope for discretion as to the material to be considered. Ultimately, this ground resolves itself into a variant of the Tameside challenge made in ground 1A. There is, similarly to that ground, no real prospect of a finding that the Defendant was not rationally able to conclude that he had sufficient information for a proper consideration of the relevant matters.

9. Grounds 3 and 4 can be considered together. There is no real prospect of either succeeding. The contention that the decision resulted in the different treatment of those in properly comparable positions is not persuasive. However, even if that hurdle were to be overcome the Defendant’s conclusion that any differential treatment was justified was well within the margin to be accorded to such a decision.

10. It follows that the claim is not arguable with a real prospect of success and permission is to be refused.

11. The application for expedition accordingly falls away.

12. The Defendant has not made any application for costs nor provided any schedule of costs. In light of the Claimants’ circumstances and legally aided status any order would be academic and I make no order as to costs.