LRGB -v- Cornwall Council (anonymity order and application for judicial review)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim Number: AC-2024-CDF-00125

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

In the matter of an application for judicial review

8 August 2024

Before:
His Honour Judge Lambert
sitting as a judge of the High Court

Between:
The King on the application of
LRGB (a child by her mother and Litigation Friend LB)
-v-
Cornwall Council

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 His Honour Judge Lambert sitting as a judge of the High Court.

  1. Anonymity. Pursuant to CPR 39.2, the Claimant shall not be identified. There will be an anonymity order, the Claimant is to be known as LRGB and her mother and litigation friend is to be known as LB.
  2. The claim will proceed without identifying an interested party. It is not necessary to identify a teacher as well as the local authority.
  3. The application for permission to apply for judicial review is refused.
  4. The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £2496.
  5. Paragraph 4 above is a final costs order unless within 14 days of the date of this Order the Claimant files with the Court and serves on the Defendant a notice of objection setting out the reasons why they should not be required to pay costs (either in the amount required by the costs order, or at all). The submissions shall not exceed 3 pages. If the Claimant files and serves notice of objection, the Defendant may, within 14 days of the date it is served, file and serve submissions in response (not to exceed 3 pages). The Claimant may, within 7 days of the date on which the Defendant’s response is served, file and serve submissions in reply (not to exceed 2 pages).
  6. The directions at paragraph 5 apply whether or not the Claimant seeks reconsideration of the decision to refuse permission to apply for judicial review.
    (a) If an application for reconsideration is made, the Judge who hears that application will consider the written representations filed pursuant to paragraph 3 above together with such further oral submissions as may be permitted, and decide what costs order if any, should be made.
    (b) If no application for reconsideration is made or if an application is made but withdrawn, the written representations filed pursuant to paragraph 5 above will be referred to a Judge and what order for costs if any, should be made will be decided without further hearing.

Reasons

I understand why your mother is anxious about securing proper educational provision for you. I believe, however, that she is asking too much, too soon, from the local authority. Judicial review concerns itself with the practical reality of the situation and is a discretionary remedy which can be refused when the outcome would not have been substantially different if the conduct complained of had not occurred. Many local authorities are overwhelmed at the moment by an exponential rise in requests and demands for special educational needs provision. There is a limit as to what they can do. I believe the local authority is doing all it can be reasonably expected to do in the circumstances. It is, of course, necessary to secure an ECHP for you. But specialist input is required which now clearly justifies the delay. An increased number of occupational health specialists cannot be secured overnight. I consider it will defeat the object of the exercise to have a deficient ECHP simply because this could be done sooner. You must, I’m afraid, await the outcome of the process which will then give a tangible result which can be the subject of any necessary further judicial consideration.

There is a right of appeal under s.51 of the Children and Families Act 2014 to the First Tier Tribunal against a local authority’s refusal to assess whether a child needs an EHCP and against a refusal of an ECHP after an assessment or against the terms of an EHCP. When an EHCP is made, a local authority is under a strict duty to secure the provision which it specifies – Section 42 of the Children and Families Act 2014. Thereafter should the authority fail to comply with the duty, the parent then has a right to enforce the terms of the EHCP through a judicial review claim. I am aware that in special circumstances the statutory procedure will not supplant judicial review but these do not prevail here.

I would describe the claim as pre-emptive or premature, meaning it is really directed towards a contingency concerning the possibility that you may not receive appropriate SEN provision. But that has not happened yet and may not happen at all.

I consider that your second ground is misconceived because it seeks to impugn a process which is yet to be concluded.

Your third ground is bound to fail for lack of particularity and lack of a decision which can be examined as non-compliant.