MOS -v- Bolton Metropolitan Borough Council (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2025-MAN-000239

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

In the matter of an application for judicial review

30 May 2025

Before:

Andrew Thomas KC,
sitting as a Deputy High Court Judge

Between:

The King
on the application of
MOS
(by his Litigation Friend, MDG)

-v-

Bolton Metropolitan Borough Council

Order

Following consideration of the documents lodged by the Claimant

AND in exercise of the Court’s powers under CPR 3.3(4)

ORDER by Andrew Thomas KC, sitting as a Deputy High Court Judge

Anonymity

  1. The Court, of its own initiative, orders as follows:

(a) Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998:

(i) the Claimant’s name is to be withheld from the public and must not be disclosed in any proceedings in public; and

(ii) the Claimant is to be referred to orally and in writing as “MOS” and his litigation friend is to be referred to as “MDG”.

(b) Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of any matter likely to lead to the identification of the Claimant in any report of, or otherwise in connection with, these proceedings.

Applications for Urgent Relief

2. The Claimant’s applications dated 27th May 2025 for urgent relief (Mandatory and Prohibitory Orders) are dismissed, without the need for a hearing. The applications are totally without merit.

This Order has been made without a hearing. The Claimant has the right to apply within 7 days for reconsideration of this decision. See paragraph (24) of the Reasons below.

3. The Claimant has permission to rely upon the additional evidence referred to in the application dated 29th May 2025, namely:

(a) Email from Phillip Bracegirdle dated 20 March 2025
(b) Email from Phillip Bracegirdle dated 23 March 2025
(c) Email exchange dated 15 May 2025
(d) Letter from Birtenshaw school dated 13 May 2025

The application dated 29th May 2025 is otherwise dismissed.

Expedited Timetable for Determination of Permission

4. The Claimant shall file and serve a Chronology of relevant events by no later than 4pm on Wednesday 4th June 2025.

5. The Defendant shall (if so advised) file and serve its Acknowledgement of Service and Summary Grounds of Defence by no later than 4pm on Friday 6th June 2025.

6. The Claimant shall file any Reply to the Summary Grounds of Defence by no later than 4pm on Wednesday 11th June 2025.

7. The papers shall be placed before a Judge for the determination of Permission to Claim Judicial Review by no later than Friday 20th June 2025.

8. Any application for reconsideration of the decision in Paragraph 2 of this Order shall be filed and served by no later than 4pm on Friday 6th June 2025 and will be decided at the same time as the application for permission.

Costs

9. Costs reserved.

REASONS

Anonymity

(1) The Claimant is an 11-year-old child. This claim concerns his Education, Health and Care Plan (‘EHCP’) and the arrangements for his future education. The evidence contains an extensive discussion of his special educational needs. I am satisfied that there is an expectation of privacy concerning these matters and that it is in the interests of justice to make an anonymity direction. Anonymity is an appropriate balance between the interests the Claimant and the principle of open justice.

Applications for Urgent Relief

(2) The Claimant’s applications for the urgent grant of Mandatory and Prohibitory Orders are misconceived. I am satisfied on the papers that the applications, taken at their highest, have no prospect of succeeding and in exercise of the Court’s powers under Rule 3.3(4) CPR I dismiss them without a hearing. I am satisfied that they are totally without merit.

(3) In the Grounds for Judicial Review, the Claimant is described as “an 11 year old autistic child with complex special educational needs who requires a specialist education setting.”

(4) The Defendant is the local authority responsible for meeting the Claimant’s special educational needs, pursuant to Part 3 of the Children and Family Act 2014.

(5) The Claimant is currently a pupil at a local primary school in Bolton. The papers do not contain a full chronology, but I understand that there has been a EHCP in place since at least 2023. However, circumstances have changed as the Claimant will soon be moving on to secondary school.

(6) In late 2024 and early 2025, investigations took place to identify an appropriate school placement for the Claimant and to produce a revised EHCP.

(7) The local authority is under a specific duty pursuant to Section 39 of the Children and Family Act 2014 (‘the Act’) to consider a request that a particular school or other institution should be named in an EHCP. The local authority is then required to consult with the school concerned. It is also under a duty to name the school in the EHCP unless it concludes that an exception in Section 39(4) applies. The exceptions concern the suitability of the school for the child, incompatibility with the education of others and the efficient use of resources.

(8) Section 42 of the Act requires a local authority to secure the special educational provision specified within an EHCP.

(9) In the present case, the Claimant’s mother has requested that the Claimant be placed at Birtenshaw School, a non-maintained special school in Bolton. Her case is that the Defendant has failed to carry out adequate consultation with Birtenshaw School or properly to consider the request.

(10) The Claimant’s mother raised reasoned objections to the schools suggested by the Defendant. These concern general suitability, and in one case concerns about potential conflict with a member of her ex-husband’s family. For the purposes of this decision, it is not necessary for me to evaluate the strength or otherwise of her grounds for objection.

(11) In February 2025, the Defendant issued a revised EHCP. It did not name Birtenshaw School as a suitable placement. The Claimant’s mother disagrees with the schools named and with other contents of the EHCP. One specific criticism is that the EHCP contains reference to an Educational Psychology report which has not been disclosed. The Claimant, through his mother, alleges that this amounts to fabricated evidence.

(12) The Claimant has appealed to the First Tier Tribunal, Special Educational Needs and Disability (‘SEND’) against the determinations in the EHCP. The hearing of that appeal is listed on 18th July 2025.

(13) The present claim for Judicial Review and applications for urgent relief have been prompted by the fact that on 13th May 2025, Birtenshaw School confirmed that they had a place available for the Claimant. Their view is that they would be able to meet the Claimant’s needs. They state that they are willing to offer a place from September 2025, subject to funding. The defendant local authority has not accepted that position.

(14) The Claimant’s case is that the offer of a placement at Birtenshaw School is ‘time critical’. The school says that places are currently available, but they could be taken up by other applicants. In other words, they cannot hold a place open exclusively for the Claimant. The Claimant’s case is that there is a risk that the places will have gone by the time of the SEND hearing on 18th July 2025.

(15) The Claimant’s has set out a number of grounds for Judicial Review. Each of the grounds raise multiple issues, but by way of very brief summary they are as follows:

  1. Breach of Statutory Duty. Failure to comply with the Section 39 duty of consultation and failure to comply with the Section 42 duty provide education in accordance with the EHCP.
  2. Unlawful action. Alleged fabrication of content in the EHCP, application of an incorrect assessment framework, failure to make provision for specified needs.
  3. Specifying school placements which are unsafe or otherwise unsuitable, in breach of statutory duty and/or Arts 8 and 14 ECHR.
  4. Necessity for urgent relief to preserve the offer of a place at Birtenshaw School

(16) Within the N461 Claim Form for Judicial Review and in a separate N463 Application for Urgent Consideration, the Claimant has applied for urgent relief in the form of:

  1. a Mandatory Order, requiring the Defendant to fund the Claimant’s placement at Birtenshaw School; and
  2. a Prohibitory Order, prohibiting the Defendant from placing the Claimant at three named schools and from acting upon the February 2025 EHCP.

The Claimant has requested that the applications for urgent relief be determined at a hearing, and has proposed a timetable for the filing of evidence to allow the applications to be determined within 3 to 6 working days.

(17) The Claimant’s case is that an urgent mandatory injunction is necessary because the acceptance of a place at Birtenshaw School is ‘time critical’. The Claimant submits that the issue has to be determined within the next two weeks and cannot wait until the SEND hearing in mid-July. We are approaching the end of the school year and it is suggested that if the Birtenshaw School placement is not accepted now, the Claimant will be left without any suitable school placement in September.

(18) The Claimant acknowledges that ordinarily SEND determines challenges to the contents of an EHCP. As well as the ‘time critical’ argument, the Claimant says that SEND does not have adequate powers to resolve some of the issues raised. The Claimant says that the High Court is the appropriate tribunal to resolve the allegation of fabrication. Also, SEND cannot issue prohibitory orders.

(19) I am satisfied that these applications for urgent relief are totally without merit. I am satisfied that a hearing would serve no purpose. There is no prospect whatsoever of the Court making the orders which the Claimant seeks.

(20) There are several reasons why the applications for urgent relief must fail.

  1. The Claimant’s applications are for permanent injunctions, not for interim relief. They request the Court to reach a definitive conclusion at a short-notice hearing on the Claimant’s placement for at least the next five years. The underlying request is that the Administrative Court should decide which school the Claimant should attend. That is not the role of this Court.
  2. This is Judicial Review, not an appeal. The Court is concerned with whether the local authority has reached a lawful decision, not whether the Court agrees with its decision. The Claimant’s statement of facts and grounds goes little further than expressing strong disagreement with the local authority’s decision.
  3. Even where a claim is successful, the Administrative Court does not ordinarily substitute its own view on the substantive issue for that of the public authority whose decision has been challenged. The normal order is to quash a decision and to remit for reconsideration. It is only in exceptional circumstances that a Court would make a mandatory order directing a public authority what action it should take. In the context of this case, it would require the Court to decide that placing the Claimant at Birtenshaw School is the only legally permissible result, which is never going to be the case.
  4. In any event, the evidence provided to the Court is totally incapable of permitting the Court to review the substantive decision which the local authority has taken, whether on a rationality basis or otherwise. For example, there is no material which would enable the Court to evaluate the matters which arise under Section 39(4) of the Act, such as the suitability of the school or the impact on resources. There is no material which would enable the Court to evaluate the suitability of the schools identified by the local authority in the EHCP. The materials go no further than to identify the areas of disagreement. 
  5. For the reasons identified by Kate Grange KC in R (on the application of LW) v London Borough of Islington [2025] EWHC 703 (Admin), the appropriate tribunal to determine issues relating to the determinations with an EHCP is SEND. I adopt the reasons which she set out at paras 32 to 38 of her judgment. In particular, Judicial Review is a remedy of last resort; it is Parliament’s intention that SEND should determine challenges to an EHCP; SEND has considerable expertise which allows it to determine the substantive issues in such cases; SEND also has flexible rules on evidence, which allows it to make the necessary evaluations.
  6. I recognise the pressure of time, but I do not accept that it supports the contention that the Administrative Court should take the decision. Judicial Review is determined on the papers: it is not an appropriate forum for determining an allegation of fraud.

(21) I am satisfied that the applications for Mandatory and Prohibitory Orders are totally without merit. However, a civil restraint order is not appropriate.

Expedited Timetable for Determination of Permission

(22) I have considered whether I should refuse permission to claim Judicial Review at this stage. The reason I am not doing so is because the Claimant has raised an allegation of breach of statutory duty under Section 39, and in particular alleges that the Defendant has not consulted with Birtenshaw School. The Court will be assisted by an AoS to determine whether there is any merit in the contention. Taken at its highest, the most which the claim could achieve on that ground is a quashing order and a direction for reconsideration.

(23) It is desirable that this case is considered further before the SEND hearing. I have therefore set an expedited timetable. The Claimant did not file a chronology with the Claim Form, and I direct that a chronology should be provided to assist the judge determining permission.

The Claimant’s right to request reconsideration

(24) The decision to dismiss the Claimant’s applications for urgent relief without a hearing has been made pursuant to Rule 3.3(4) CPR and I am satisfied for the purposes of Rule 3.3(7) that the applications are totally without merit. The Claimant has the right to request reconsideration pursuant to Rules 3.3(5) and 3.3(8), but the request will be determined on the papers. If the Claimant wishes to exercise that right, the application should be filed and served within 7 days setting out reasons for the request.

Signed: Andrew Thomas KC
Date: 30th May 2025