ZJ -v- Suffolk County Council (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-LON-001593

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

In the matter of an application for judicial review

2 September 2024

Before:

Ms Clare Ambrose
sitting as a Deputy High Court Judge

Between:

The King
on the application of
ZJ
(by his Litigation Friend Mariam El-Sabky)

-v-

Suffolk County Council

Order

On an application by the Claimant for:

  1. Permission to make an application for judicial review;
  2. An anonymity order for C and his litigation friend;
  3. An order for the claim to be expedited;
  4. An extension of time to reply to the Defendant’s AOS, and permission to rely on the Reply dated 11 July 2024.

Following consideration of the documents lodged by the Claimant and the Defendant

ORDER by Ms Clare Ambrose sitting as a Deputy High Court Judge

1. The Claimant’s name is to be withheld from the public and must not to be disclosed in any proceedings in open court.

2. The Claimant’s name is to be substituted with “ZJ” for all purposes in these proceedings in place of references to the Claimant by name whether orally or in writing.

3. Pursuant to s.11 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.

4. The Claimant’s application to extend time to reply to the Acknowledgement of Service is granted.

5. The Defendant is to serve by 10 September 2024 the decision of the FTT Tribunal on ZJ made on 24 July 2024 (together with the FTT’s working document) and also any modified Education Health and Car Plan for ZJ and the Claimant has permission to serve brief submissions by 24 September 2024 dealing with that decision.

6. The decision on permission will be referred to another judge to deal with on the papers.

Reasons

The background

  1. The Claimant ZJ was born on 13 July 2013 and is now 11 years old.
  2. ZJ has diagnoses of autistic spectrum disorder, avoidant restrictive food intake disorder and joint hypermobility.
  3. He has not attended school since 17 November 2021 when he was excluded from his primary school.
  4. He was taken into care on under an interim care order dated 11 April 2024.
  5. He is currently living in residential care under a final care order made in the Family Court following a hearing listed to take 8 days starting on 26 June 2024.
  6. He has an Education Health and Care Plan (“EHCP”) maintained by the Defendant that was first issued in 2018 and the latest version when these proceedings were commenced was dated 30 June 2023.
  7. At that stage his EHCP was under appeal in the First Tier Tribunal (Health and Social Care Chamber) (“the FTT) and the hearing for that appeal was originally listed for 27 June 2024 but was re-listed for 16 July 2024.
  8. The hearing went ahead on 16 and 17 July 2024 and the FTT made a decision dated 24 July 2024 but the Court in these proceedings does not appear to have been provided with the FTT’s decision, working document or any updated EHCP arising out of it.

The application for permission

9. The application for permission to apply for judicial review was issued on 10 May 2024. There are issues regarding the suitability of the litigation friend but these do not require resolution until the decision on permission is made.

10. The Claimant seeks judicial review of the Defendant’s failure to secure suitable education for him and its failure to secure special educational provision outlined in his EHCP, together with breach of Article 2 Protocol 1 of the ECHR and/or Article 14 of the ECHR and/or breaches of the Equality Act 2012 under ss13, 15 and 20. He seeks the following relief:

(1.) A Declaration that the Defendant has breached section 42 of the CFA 2014;

(2) A Declaration that the Defendant has breached section 19 of the Education Act 1996 (this is no longer pursued, see below);

(3) A Declaration that the Defendant has breached the Equality Act;

(4) A Declaration that the defendant has breached article 2 of the First Protocol and article 14 of the European Convention on Human Rights and/or the Equality Act;

(5) Damages for breach of article 2 of the First Protocol and article 14 of the European Convention on Human Rights and/or the Equality Act;

(6) A mandatory order seeking the Defendant provide suitable set out in section F of the EHCP immediately;

(7) Such other Orders and Directions as the Court considers appropriate.

11. In its Reply the Claimant withdrew the claim relating to breach of section 19 of the Education Act 1996 so it is no longer in issue.

The Respondent’s objections on the merits

12. The Respondent says, inter alia, that the claim is academic as it is brought on the basis of J not receiving any education when he has received education. It also says that the scope of this claim is as to whether the Council is acting unlawfully in its provision of education at the current time and there is an ongoing appeal made by D against the content of J’s EHCP before the FTT so there is an alternative remedy. It suggests that there is no arguable basis for the claims under the ECHR and the Equality Act.

Timing

13. The Claimant requested that the matter be expedited as a matter of interim relief but no application was issued for this and the Defendant asked for the full time to respond. The Claimant’s solicitors also indicated in their letter of 24 July 2024 that the decision of the FTT will be material and asked the Court to decline to make a permission decision until the Tribunal issues its decision.

14. In its letter of 1 August 2024 the Claimant’s solicitors reiterated that their understanding that the Defendant has not secured section F of the EHCP over many years and continues not to do so. They indicated that until they have confirmation that all provision set out in the FTT’s working document is being provided they continued to seek permission for breach of section 42.

15. The court is not satisfied that expedition is appropriate and refuses the request for an order for expedition.

16. The decision on permission to appeal will not be made until the court sees the decision of the FTT (and its working document) and any amended EHCP as this is relevant to the application and objections made.

Anonymity

17. The Defendant does not take issue with the application for an anonymity order. The Court accepts that the Claimant can justify anonymity as a child and his personal details are involved. However, no justification or necessity was put forward for ordering anonymity of the litigation friend.

18. I bear in mind the importance of the open justice principle and the exceptions to that principle in CPR 39.2 to cases involving confidential information.

Extension of time for serving Reply

19. The Reply narrowed issues and no prejudice was caused by the delay in its service.

Signed:
Clare Ambrose

Date: 2 September 2024