ZS -v- Local Government and Social Care Ombudsman and another (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2023-LON-001937

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

8 December 2023

Before:

David Pievsky KC sitting as a Deputy High Court Judge

Between:

The King on the application of
ZS (by her litigation friend and mother SB)

-v-

Local Government and Social Care Ombudsman

London Borough of Enfield

Order

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 Acknowledgments of Service filed by the Defendants

ORDER by David Pievsky KC sitting as a Deputy High Court Judge

  1. The application for permission to apply for judicial review is refused.
  2. The Claimant shall be known as ZS. The Claimant’s litigation friend shall be known as SB. Their identities shall not be disclosed.
  3. No order as to costs of the Acknowledgments of Service.

Reasons

  1. It is clear to me that the Ombudsman’s investigation was procedurally fair, thorough, fully reasoned, and flexible (in that he kept an open mind and adjusted his conclusions when persuaded to do so). He upheld part of the Claimant’s complaint, finding fault with aspects of how the Council had managed the EHC plan process, had considered whether it needed to arrange alternative education, and had responded to X’s complaint. The decision set out agreed actions including apologies for the faults that had been identified, and a payment of £5,700.
  2. The real question is whether the Ombudsman’s overall decision was irrational for the reasons suggested by the Claimant. Bearing in mind that the Ombudsman may not question the merits of a discretionary decision taken by a local authority, and applying the guidance set out in the case law relating to the manner in which the Court should approach the conclusions of the Ombudsman, I consider that the Ombudsman is right to contend, for the reasons set out in his Acknowledgment of Service, that it is not arguable that they were irrational. It was primarily for the Ombudsman to consider what facts were relevant and how much weight to assign to each of those facts.
  3. In addition, the claim is in my judgment bad for delay. It was commenced on 23 June 2023, one week before the end of the three month period set out in CPR 54. It seems to me that the Claimant did not act “promptly” after 30 March 2023. Many of the Ombudsman’s preliminary views were already known as a result of his detailed draft decisions and previous decisions over the lengthy period of investigation that had already occurred. The Claimant could and should have acted far more promptly (including by complying with the pre-action protocol, which she did not do).
  4. Since I am refusing permission, there is no jurisdiction to make a costs capping order: see s.88(3) of the Criminal Justice and Courts Act 2015.
  5. That leaves the question of the costs of the permission stage. A judicial review defendant is normally entitled to the costs of preparing an Acknowledgment of Service. However, in this case, the Claimant was a child at the time the claim was commenced, and is clearly one who has had difficulties in her education and otherwise. I do not think it is just or appropriate to make a costs order against her personally. I have considered whether to make a costs order against the litigation friend. There is no presumption: see Glover v Barker [2020] EWCA Civ 1112. Each case turns on its merits. I consider that the litigation friend is motivated by the interests of her child, that the judicial review claim has been put together in good faith and conscientiously, and that in all of the circumstances, it would not be in the interests of justice to make a costs order against her. I record for completeness that the Defendant was plainly forced to incur fairly significant costs in defending a wide-ranging judicial review claim; and that I found the Summary Grounds drafted by the Defendant’s solicitor to be a very helpful and persuasive document, which assisted the Court. But in all of the circumstances of this case I do not consider that it would be in the interests of justice to make a costs order. The Claimant should understand that the costs position might potentially strike the Court differently if the application were to be renewed, further significant costs incurred, and a wide-ranging but ultimately unsuccessful approach maintained by and on behalf of the Claimant.