Claim number: CO/1210/2023
In the High Court of Justice
King’s Bench Division
8 June 2023
His Honour Judge Rawlings
The King on the application of
Birmingham City Council
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(s) of service filed by the Defendant and on considering the Claimant’s application for interim relief
ORDER by the His Honour Judge Rawlings
- Pursuant to CPR 39.4 (4) the claimant is granted anonymity and is to be referred to as “YA” and the Claimant’s litigation friend is granted anonymity and is to be referred to as “ME”. The identity of the claimant and litigation friend shall not be disclosed outside of these proceedings. There shail not be disclosure in any report of the proceedings of the name or address of the claimant or litigation friend or any details leading to the identification of the claimant or litigation friend. This application shall be known and listed only as “YA” acting by his litigation friend ME” v Birmingham City Council”.
- The Claimant has permission to rely on the witness statement of ME dated 11 May 2023.
- The Claimant has permission to file, serve and rely upon the draft Reply dated 16 May 2023, to the Defendant’s Summary Grounds of Resistance.
- The Claimant has permission to amend the Claimant’s statement of facts and grounds in accordance with the draft thereof dated 16 May 2023.
- The Defendant must within 14 days of service on it of this order file with the court and serve upon the Claimant a statement responding to the witness statement of ME dated 11 May 2023, setting out in that witness statement precisely what educational support in the form of tuition has actually been provided to YA from 3 February 2023 to the date of the witness statement. In so far as the educational support actually provided to YA since 3 February 2023, is less than that stated by Kate Harvey in her witness statement dated 25 April 2023 to have been commissioned by the Defendant, the witness statement must explain the reasons for the deficiency.
- The application for permission to apply for judicial review is adjourned to be listed in court as a “rolled-up hearing”, on notice to the Defendant the hearing of the application for permission and if granted the claim is expedited and shall be listed for hearing in week commencing 14 August 2023 or as soon thereafter as the court can accommodate the hearing, with a time estimate of half a day. If the parties disagree with this time estimate they shall provide a written time estimate within 7 days of service of this order.
Reasons for granting Anonymity
- The Claimant is a vulnerable individual, there is no material public interest in disclosure of the identity of the Claimant. The grounds for granting anonymity to the Claimant to protect him from possible harm outweigh the public interest in his identity being disclosed.
Reasons for granting Claimant permission to rely on witness evidence of ME, Reply and to amend the Grounds and requiring the Defendant to respond to the witness statement of ME
- The Defendant has filed a witness statement of Kate Harvey dated 25 April 2023 in which she refers to educational provision that she says was commissioned by the Defendant from Connex Tutors for YA.
- The witness statement of ME dated 11 May 2023 asserts that YA has not received the educational provision that Ms Harvey says has been commissioned for him.
- Given that the duty of the Defendant is to secure special educational provision in accordance with the EHC Plan, a key question is what educational provision has actually been provided by the Defendant to YA. The evidence of ME and directed witness evidence to be provided by the Defendant goes to this issue.
- The amendments to the Grounds provide further particulars of the sole ground for Judicial Review, the Defendant having complained of a lack of particularity in its Summary Grounds of Resistance. The further Particulars may serve the purpose of narrowing the issues.
- Whilst a Reply is unusual, there is a dispute as to the educational support actually provided by the Defendant to YA, the Reply makes clear YA says has been provided and the nature of the mandatory order that YA is seeking. As such the Reply serves a useful purpose in clarifying these two matters.
Refusal of interim relief and rolled up expedited hearing
- YA seeks an interim mandatory injunction requiring the Defendant to provide specified special educational provision for YA, pending determination of YA’s claim for Judicial Review, alternatively an expedited hearing.
- The Defendant says that it is complying with its duties to secure special educational provision for YA by the educational provision that it has commissioned and that the claim for Judicial Review is therefore unfounded.
- As already noted, the Defendant’s evidence, in the form of a witness statement from Ms Harvey, does not address the question of what special educational provision has actually been provided to YA by the Defendant but rather only what has been commissioned by the Defendant. The question of what special educational provision has actually been provided to YA will be a key question, in deciding whether permission to bring a claim for Judicial Review should be granted and ultimately whether the claim for Judicial Review succeeds and whether a mandatory injunction should be granted to require the Defendant to comply with its duty.
- On balance, given the unsatisfactory state of the evidence as to the special educational provision actually provided by the Defendant to YA:
(a) granting an interim mandatory injunction at this stage is not considered appropriate, but there is a compelling case for expediting the hearing of the claim for Judicial Review;
(b) permission cannot properly be considered until the court has a clear idea of what special educational provision has actually been provided by the Defendant to YA, the Defendant has been directed to file and serve evidence on this point; and
(c) fixing an expedited hearing should not be delayed until after the Defendant has filed and served the directed evidence and so an expedited rolled up hearing has been directed.
Case Management Directions
- The Claimant must, within 7 days· of the date of service of this Order, file an undertaking to pay the continuation fee (see below) if permission to apply for Judicial Review is granted
- The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 21 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a)above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
- The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 2 weeks before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall also lodge 2 hard-copy versions of the hearing bundle.
- The Claimant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
- The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 4 days before the date of the hearing of the judicial review.
- The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.
- CPR 2.11 shall not apply to these proceedings.