Claim number: CO/1051/2023
In the High Court of Justice
King’s Bench Division
4 April 2023
The Honourable Mr Justice Kerr
The King on the application of
Devon County Council
On the application of the claimant for permission to apply for judicial review
Following consideration of the permission bundle, the acknowledgment of service and summary grounds of resistance and other documents filed with the court
Order by the Honourable Mr Justice Kerr
- The defendant’s application for anonymity for the claimant’s three children “KO”, “OW” and “TO” is granted.
- Permission to apply for judicial review is refused.
- The defendant’s application for costs is refused.
(1) The application for anonymity is not opposed by the claimant and is well founded because the children are minors with special educational needs.
(2) The defendant takes no point in relation to the claimant’s standing; she is competent to act as litigant friend to the three children. Although the action should have been brought in the name of the three children rather than in the claimant’s own name,that error is not of importance.
(3) The first challenge, failure to decide the outcome of KO’s annual review within the four week deadline, was well founded when brought but is now agreed to be resolved. I do not grant the application for costs because the defendant admits in its summary grounds that it was out of compliance with its legal obligations in that respect.
(4) The remaining grounds allege failure to provide education, social care and therapy to each of the three children, in breach of s.42 CFA 2014.
(5) The claimant correctly concedes that her other claim (CO/628/2023) is addressing the issue of social care for the three children: see para 27 of the claimant’s response to the summary grounds.
(6) The claimant correctly concedes at para 28 of her response to the summary grounds that her other claim is addressing the issue of educational provision for KO. The direct payment for KO included payment for the EOTAS (education otherwise than at a school) package in KO’s ECHP (education and health care plan).
(7) That leaves the question of educational provision for OW, withdrawn from school by the claimant on 21 November 2022, and TO, withdrawn on 16 January 2023.
(8) I accept the defendant’s submission that by reason of s.42(5) CFA 2014, it is not required under s.42(2) CFA 2014 to secure the educational provision in the ECHPs of OW and TO. This is because “the child’s parent … has made suitable alternative arrangements”: s.42(5).
(9) While the suitability of the arrangements will no doubt continue to be scrutinised and may have relevance in the other claim (CO/628/2023), there is no clear finding or evidence of unsuitability at this stage.
(10) I therefore do not find any of the remaining contentions in this claim arguable.
(11) It is nearly always unwise to commence a second claim on top of an existing claim about the same subject matter. The court is generally unsympathetic to such multiple claims. They often waste public resources and often, as in this case, duplicate issues in other proceedings.
(12) However, the claimant cannot be criticised for advancing the first ground of challenge; it was well founded when the claim was brought.