Case No CO/3080/2022
In the High Court of Justice
Queen’s Bench Division
25 August 2022
The Honourable Mrs Justice Ellenbogen DBE
The Queen on the application of
(acting by his mother and litigation friend RD)
Oxfordshire County Council
On applications by the Claimant for anonymity and for urgent interim relief
Following consideration of the documents lodged by the Claimant
ORDER by The Honourable Mrs Justice Ellenbogen DBE
1. The identity of the Claimant and of his litigation friend in these proceedings shall not be published.
2. Pursuant to CPR Rule 39.2(4), there shall not be disclosed in any report of these proceedings, or other publication (by whatever medium) in relation to these proceedings, the name or address of the Claimant and of his litigation friend, or any other matters which could lead to identification of the Claimant, or his litigation friend.
3. In any report of these proceedings, or other publication (by whatever medium) in relation to these proceedings, the Claimant shall be referred to as “JD”, his litigation friend shall be referred to as “RD” and any matters which could lead to the identification of the Claimant or his litigation friend shall be redacted.
4. Pursuant to CPR Rule 5.4C:
a. a person who is not a party to the proceedings may obtain a copy of a claim form, judgment or order from the court records only if the same has been anonymised and redacted in accordance with paragraphs 2 and 3 of this order;
b. if a person who is not a party to the proceedings applies for permission to obtain a copy of any other document or communication, such application shall be on at least 7 days’ written notice to the Claimant’s solicitors;
c. any interested party, whether or not a party to the proceedings, may apply to the Court to vary or revoke paragraphs 1 to 4(b) of this Order, provided that any such application is made on written notice to the Claimant’s solicitors and that 3 days’ prior written notice of the intention to make such an application is given.
5. The Defendant shall file and serve any response to the Claimant’s application for urgent interim relief, together with any supporting evidence, by midday on Tuesday 30 August 2022.
6. The Claimant shall file and serve any reply to the Defendant’s response, together with any supporting evidence, by midday on Wednesday 31 August 2022.
7. The Claimant’s application for urgent interim relief, together with all material filed and served in accordance with paragraphs 5 and 6 above, shall be placed before a judge of the Administrative Court on Wednesday 31 August 2022, by no later than 2:00pm. At that stage, the judge may determine the Claimant’s application on paper, or give directions for further submissions and/or an oral hearing, which may be listed on very short notice to the parties.
8. Costs reserved.
1. This matter is before me as ‘immediates’ judge.
2. The Claimant is a 19 year-old man, having special educational needs and various, complex medical conditions. He requires support with his personal care throughout the day, including during school time, and specialist support with all aspects of his daily life. From the age of four, his educational needs were supported via a Statement of Special Educational Needs, which was converted to an Education, Health and Care Plan (“EHCP”), in November 2016.
3. Following its assessment of the Claimant, in September 2021, National Star College (‘NSC’) concluded that he was suitable to undertake its OCR Extended Award in Life and Living Skills course, over three years, in its report stating, ‘If [JD] is not afforded a place at NSC, he will be denied the chance of developing independence skills, remaining totally reliant on his family. He will not have a chance to develop peer relationships and will remain socially isolated at home.’ By letter dated 27 September 2021, NSC formally confirmed that it could meet the Claimant’s needs and offered him a residential placement, conditional upon local authority funding.
4. On 17 March 2022, the Defendant informed the Claimant’s mother of its intention to cease to maintain the Claimant’s EHCP, with effect from 21 July 2022; a decision formally confirmed on 7 April 2022. An appeal against that decision was submitted to the First Tier Tribunal (Special Educational Needs and Disability) on 27 April 2022, together with a request for an urgent hearing given the need for the Claimant to commence his placement with NSC in September 2022. Nevertheless, and notwithstanding a subsequent reiteration of that request, the hearing has been listed for December 2022.
5. On 13 June 2022, NSC undertook an updated assessment, concluding:
“a) [the Claimant] requires a placement within a specialist college. A specialist provision with trained and skilled staff is the only way he will be able to develop his communication skills and prepare for adulthood;
b) No offer would mean that [the Claimant] does not receive the input required to support his complex needs. He is at risk of social isolation and lack of progression in terms of his sensory and communication needs;
c) [the Claimant] will require 1:1 support to enable him to learn safely and to access the curriculum;
d) National Star College can meet [the Claimant’s] needs and offer a place from September 2022.”
6. An independent educational psychologist was instructed by the Claimant’s solicitors. Within her report, the psychologist stated: “[The Claimant] has limited ability to generalise his learning into a domestic setting and he needs to be assisted to do this by staff that are constantly in liaison with educational and therapeutic staff who can deliver a programme of education beyond the college day. In my opinion, this could not be achieved with a piecemeal care arrangement. He would be likely to regress educationally and behaviourally; his ability to communicate would not progress; he would not develop independence skills; he would remain highly dependent and extremely vulnerable. It is my opinion that [the Claimant] continues to require an EHCP, his EHCP should be amended to incorporate my recommendations and National Star College should be named at Section 1.”
7. Following receipt of that report, on 26 July 2022 the Defendant agreed to maintain the Claimant’s EHCP. On 1 August 2022, it confirmed that it did not oppose the Claimant’s appeal in that respect and stated that it had secured a specialist placement for him at The Development Centre, Abingdon & Witney College, such that a placement at NSC would constitute an inefficient use of resources.
8. By e-mail dated 15 August 2022, the Defendant stated that placing the Claimant at NSC would constitute unreasonable public expenditure and that there was a significant difference between the cost of the placement at NSC and that of the placement at Abingdon & Witney College. Thus, the former placement “would be an inefficient use of resources”. It continued, “As far as the LA is concerned on the evidence it currently has and the response it has had from the A and W college the placement is suitable to meet [the Claimant’s] needs and it has a lawful reason not to comply with the parental preference.” On the same date, the Claimant’s solicitors replied, stating that the Defendant’s conclusion as to cost failed to take account of the fact that the placement at NSC would be residential, meeting the Claimant’s social care and housing, as well as his educational needs. So viewed, there was no significant difference in cost.
9. In separate communications each dated 18 August 2022, the Head of SEND Support at Abingdon & Witney College wrote to the Claimant’s solicitors as follows:
a. “This is to confirm that I have not received notification from Oxfordshire County Council that Abingdon and Witney College have been named on [the Claimant’s] EHCP. I am continuing to chase for an update.
At consultation, the college stated that we could not meet [the Claimant’s needs, this situation has not changed. If we have been named it is because OCC have directed us, as previously stated we have not yet received a direction letter…”
b. “As stated in the consultation response, MAP is not able to meet all the needs Specified in Section F of his EHCP. The additional reports refer to residential care which does not form part of the provision, we also do not currently have the capacity to deliver the specified therapy provision. We are currently reviewing the resources available within the MAP centre, it is unlikely that we would be able to provide a full programme for [the Claimant] from the start of term, it would likely to be a reduced programme for the first term…”
10. The urgency of this application, when lodged, was said to have arisen from the fact that the Claimant’s mother had been informed by NSC that, should the Claimant not take up a place on 6 September 2022, it could not hold his place pending the outcome of the FTT hearing and he would need to join a waiting list. A future place could not be guaranteed.
11. By e-mail sent at 08:00 this morning, NSC informed the Claimant’s mother, “… the LA we gave a deadline of 24th August for a decision on funding a residential place have said they will need additional time. This means we do still have a residential place available. We feel the fairest way of proceeding is we will allocate the place to whoever gets agreement first. Although we are still waiting for a second LA to make a decision, this is for a place at an offsite residence which would not be suitable for [the Claimant]. We will keep you informed of any communications with the other LA that means they may be close to a decision. Please understand we find this uncertain situation as unsettling as yourselves and hope it gets resolved quickly now.”
12. On the material currently before me, this would appear to be a meritorious application for interim relief. It is appropriate that the need for interim relief be considered urgently, but the court will be assisted by the Defendant’s response to the application, which, so far as consistent with that urgency, it must be given appropriate time to provide. The orders made by paragraphs 5 to 7 of the above order strike that balance.
13. It is to be hoped that, on being shown a copy of this order, NSC will not allocate the sole remaining place for this year, pending the orders to be made on 31 August 2022, only three working days away.
14. The Claimant is a vulnerable young adult having complex needs. On those bases, I grant the anonymity order sought; the potentially competing rights to freedom of expression and a fair trial (the principle of open justice) are protected by my giving liberty to apply, to the Defendant and to other interested persons (which would include representatives of the Press and other media), in respect of that part of the order.