Claim number: CO/516/2023
In the High Court of Justice
King’s Bench Division
3 April 2023
Deputy Chamber President Tudur sitting as a Judge of the High Court
The King on the application of
M, a child by his mother and litigation friend, SM
London Borough of Hillingdon
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 and Summary Grounds of resistance filed by the Defendant
ORDER by Deputy Chamber President Tudur sitting as a Judge of the High Court
- Pursuant to s.39 of the Children and Young Persons Act 1933 and CPR r.39.2, the (i) names of the Claimant and his mother; (ii) their address; and (iii) the Claimant’s school shall not be directly or indirectly disclosed or published, or any particulars of the case likely to lead to the identification of the Claimant, without the leave of the court. and these proceedings shall be known as R (M) (A child, by his mother and litigation friend SM) v The London Borough of Hillingdon.
- The application for permission to apply for judicial review is refused.
- The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £1,506.
- The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.
- On the 7 February 2023, the Claimant submitted an application for judicial review on three grounds. The Claimant seeks to challenge the Defendant’s ongoing failure to deliver the special educational provision set out in Section F of M’s Education Health and Care plan issued on the 22 November 2022; an ongoing failure to discharge the duties in s 13 and 14 of the Education Act 1996 to make adequate educational provision for children in its area and an ongoing failure to discharge the requirements of the public sector equality duty by addressing the problem of a shortage of primary special school places available for children in the Hillingdon area.
- The Claimant seeks as remedies, declarations, a mandatory order that the Respondent names a special school in Section I of the Education Health and Care Plan, costs and such further relief as the Court may see fit, anonymity for the Claimant and his mother and expedition of the application.
- Ground 1 submits that s42(2) of the Children and Families Act 2014 imposes and absolute duty to secure special educational provision specified in an Education Health and Care plan on the responsible local authority, in the present case, the Defendant. It is submitted that the Act imposes an absolute duty on the Defendant to secure the provision set out in Section F of M’s EHC plan.
- The Court of Appeal in R(N) v North Tyneside Borough Council  EWCA Civ 135, which addressed the failure of the Respondent to deliver special educational provision directed by the First-tier Tribunal Special Educational Needs and Disability, confirmed that the predecessor provision in section 324(5) of the Education Act 1996 did not include a “best endeavours” defence although Sedley LJ acknowledged that: “In a margin of intractable cases there may be reasons why a court would not make a mandatory order, or more probably would briefly defer or qualify its operation.” The authorities cited, where a mandatory order had been made to enforce s42(2), relate to failures to deliver specific elements of provision following a First-tier Tribunal order contained in Section F of an Education Health and Care plan. They did not relate to a failure to name an appropriate placement or name a school, for which there is a specific appeal right pursuant to S51(2)(c)(iv) of the Children and Families Act 2014.
- The legislation does not provide an absolute duty to name a school or educational placement in Section I of the EHC plan and provides a right of appeal under s51(2)(c)(iv) of the Children and Families Act 2014 to the First-tier Tribunal Special Educational Needs and Disability against no school being named. Such an appeal has been made on behalf of the Claimant in December 2022 and is listed for final hearing in December 2023.
- The Claimant submits that: “The proper relief pursuant to Ground 1 includes a mandatory order requiring the Defendant to secure [the Claimant’s] admission to an appropriate special school, able to deliver the Section F provision, forthwith.” It is submitted that the appeal route is not an appropriate alternative remedy for judicial review because the alleged failure is to deliver the provision described in Section F and the Tribunal has no power to enforce the s42(2) provision.
- The remedy sought, and the only specific remedy mentioned in the application, which is to direct the admission of M to a special school placement, is squarely within the power of the Tribunal and would achieve the same outcome pursued by the Claimant in the present application.
- It is not in dispute that the provision identified in Section F is not deliverable in the child’s current mainstream setting and can only be delivered in a special school setting. The Defendant has actively undertaken its statutory duty to consult with a large number of possible placements, including schools identified as schools of parental preference. It may be that the Defendant is incorrectly applying the statutory test by conflating the information that the schools are full, at or over their planned admission numbers (PAN) with an assertion in some cases that a placement would, for that reason alone, lead to the inefficient education of other children, but that issue can appropriately be considered on appeal by the First-tier Tribunal.
- Since the remedy sought by the Claimant is a mandatory order requiring the Respondent to secure M’s admission to an appropriate special school forthwith or at most, allowing a short period to make the necessary arrangements to provide suitable education for M, the application is intended to secure the same outcome as can be achieved by pursuing the appeal to the First-tier Tribunal. Although the Claimant seeks expedition of the application to the High Court, there is no indication that such an application has been made to the First-tier Tribunal to secure an earlier final hearing date for the appeal.
- In relation to the other two grounds of application, the Defendant has provided a copy of the Draft Sufficiency Strategy 2022-2026 indicating that it is in the process of finalising its strategy. The public sector equality duty is engaged in the completion and publication of the strategy. The appropriate point at which a challenge an alleged breach of the duty will be after the publication of the Sufficiency Strategy.
- I conclude that the Claimant has an alternative remedy for the alleged failure of the Respondent and as judicial review is a remedy of last resort, the application is premature. Permission is therefore refused.