England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7 February 2003

1. MR JUSTICE WALL: This case is about the special educational needs of a child called V who is now 13. It is a very sad case because she is very substantially disabled. She lives with her parents and her older sister in Carlisle, in Cumbria. When her parents took the question of her Statement of Special Educational Needs to the Special Educational Needs Tribunal in May 2001, this is how the Tribunal described her:

"She has a number of complex conditions including congenital microcephaly and cerebral palsy. She has a developmental age of 6-9 months and is completely dependent for all her needs. She suffers from frequent respiratory illnesses which have on occasion required her admission to hospital and which require her parents to be very vigilant of her health on a 24 hour basis. V is unable to walk unaided but has developed limited independent mobility using a specially designed David Hart Walker. Despite all these difficulties, V has a cheerful disposition and enjoys various activities including using her computer and looking at picture books."

V also has the benefit of energetic and devoted parents who, dissatisfied with her Statement, exercised their right to apply to the Special Educational Needs Tribunal. At that Tribunal they were successful. A number of amendments were directed for the Statement of Educational Needs, and, of course, it is that Statement which forms the statutory basis for her education.

2. Acting by her mother, V instituted proceedings for judicial review on the basis that the local authority was not fulfilling its obligations under the Statement. That application came before Jackson J on 12 March last year and V was successful in her application. The judge found continuous breaches of various sections of the Educational Act and the Regulations, and he made a series of detailed orders.
3. Most unfortunately, the shorthand writer, through no fault of his or her own, was not present when the judge gave judgment. Indeed, as I understand it, it was not, in a sense, a formal judgment at the end of the case, but the judge treated each issue as being essentially a discrete issue and gave a judgment in relation to each. In any event, the transcript is not available and, by the time it was sought by the defendant for this application, too much time had gone by and there was not time to get it. I am at a disadvantage, not only that I did not conduct the hearing for judicial review, but that I have not had the opportunity to read the judge's judgment. I am left, therefore, with his order.
4. His order contains seven paragraphs and I will, in a moment, go through each of them. The seventh paragraph gave liberty to apply to Jackson J, although he did not formally reserve the matter to himself. M, taking the view that the local authority, which is Cumbria, continued to be in breach of the orders which the judge had made on 12 March, decided to apply to the court under the liberty to apply given in paragraph seven of the order. That application came on the papers for directions to Maurice Kay J who directed a hearing in relation to it, and thus it is that the matter comes before me today.
5. Objection has been taken by leading counsel for the defendant, Mr Richard Clayton, to the use of the liberty to apply procedure as a means of effectively making what he says is a fresh application for judicial review. He has, therefore, objected to V's mother proceeding in this way and has invited me to dismiss the application, leaving her to apply, should she so wish, as I indicated a moment ago, for judicial review on a fresh application. I decided that I would hear full argument on each of the points, it being argued on behalf of M by Mr Rawlings that I could properly deal with the matter on that basis, on the material before me, without hearing oral evidence. So, I heard argument on each of the paragraphs of the order.
6. I say at once that I find myself in a difficult position and I do feel bound to comment that, in my judgment, the use of the liberty to apply procedure is not the appropriate way of proceeding when one is seeking to establish continuing grounds of breach of statutory duty in relation to judicial review. One can, I think, establish this quite easily by looking at the orders themselves and, when I go through them, it will be apparent how the difficulty arises. Liberty to apply, as Mr Clayton properly accepts, can be used to clarify parts of an order and to establish whether or not there is a continuing breach, but he points out, and in this I think he is right, it is inappropriate where there is a substantial issue of fact between the claimant and the defendant. When the claimant says "you have not done this", and the defendant says "oh yes, I have", it is absolutely impossible for the court to decide which is correct. Indeed, as he also points out, it is not essentially a function of judicial review for the court to be the primary fact-finding body. The decisions which can be challenged by way of judicial review are decisions made by the defendant to the proceedings, and the function of judicial review is to decide on the lawfulness or otherwise of those decisions. It is not a function of judicial review, except in rarefied cases, to decide whether the claimant or the defendant is right on the facts.
7. That said, and in part at least because this case involves a disabled young child, I decided I would look at the underlying material to see whether I could gain any help from it. I therefore propose in this judgment to go through the six paragraphs which are in issue. The first paragraph, as ordered by the judge, was that the claimant should attend the James Rennie School (that is, as I understand it, a special school) on Monday 8 April 2002:

"On that date the Defendant to carry out a functional seating assessment and then to order the appropriate chairs. In the course of this assessment there shall be an appropriate assessment of matter relating to feeding."

Merely reading that order gives a flavour of the unusual nature of the order in the context of judicial review. It is, of course, a mandatory order, but a mandatory order in very specific detail. Sadly, because of the ongoing dispute between M and the local authority, the terms and conditions upon which V returns to school have not been capable of being agreed, with the result that she has remained at home.

8. As far as paragraph one is concerned, M accepts that the functional seating assessment has been carried out, and that there is, therefore, no breach. She says, however, that there has not been an appropriate assessment in relation to feeding. In relation to that, the local authority says "well, the order in relation to feeding must have been a mistake because there had previously been such an assessment and the judge could not have meant to order what he did." That, in my judgment, would be a proper use of the liberty to apply. If the defendant had really wanted to clarify that issue, it could have gone back to the judge on liberty to apply and said "did you really mean that? Is that not a mistake, because we have already carried out a feeding assessment?" In any event, it is now dealt with in some detail in the documentation and I do not propose, for the purposes of this judgment, to read out the entirety of the defendant's response to it. In addition, in terms of enforcement, the child has not gone to school and we are not far off a year on from 8 April 2002 and I, frankly, see no basis upon which it would be appropriate to investigate that allegation further at this stage, or make any orders in relation to it.
9. Paragraph two of the order reads:

"The Defendant shall by Tuesday the 7th day of May 2002 secure the service of a speech and language Therapist trained in Affective Communication, who will oversee the affective communication between V and her teacher."

In this respect, M, in her evidence filed for this application, says this:

"Rather than provide a Speech and Language Therapist trained in affective communication, the LEA has provided a one off training session from Heather Swain, Educational Psychologist. The LEA did say in Court, when asked by Mr Justice Jackson, that Heather Swain would not be available to provide this input and I believe that she does not have the time to do so. It is vital that a Speech and Language Therapist trained in affective communication is employed as specified by the Learned Judge and by the Statement. There has been a complete disregard of the Order."

The local authority's response to this allegation comes from Elizabeth Dawson, the education officer for Cumbria, who deals with the allegations, supplemented as they are by other witnesses. She says, in terms:

"The LEA has complied with this Order. Lucy Rigby, one of the speech and language therapists based in James Rennie School has been trained in Affective Communication. The details of this are contained in the witness statement of Heather Swain filed in these proceedings in January 2003. M states in paragraph 7 of her witness statement at B552 that 'The LEA did say in court, when asked by Mr Justice Jackson, that Heather Swain would not be available to provide this input and I believe that she does not have time to do so'. M is mistaken. I was the LEA's representative at the hearing on 12 March 2002. I did not say in court that Heather Swain would not be available to provide training in Affective Communication. Although Heather Swain is able to provide training in Affective Communication V's SSEN actually stipulates that the communication assessment of V should be overseen by a speech and language therapist. Heather Swain is not a speech and language therapist. However, she has trained Lucy Rigby, a qualified and experienced speech and language therapist, and a number of other staff at James Rennie in Affective Communication. Lucy Rigby is now able to train and support other staff in Affective Communication and Heather Swain is acting as an overall consultant."

Mr Rawlings says: well, that is not good enough. What the order plainly envisaged was that there would be an additional person, a speech and language therapist, who would have been trained in Affective Communication. Therefore, the local authority, even on its own case, has not dealt with the breach.

10. This example, of course, illustrates the difficulty in which I find myself. On the face of it, paragraph two is answered by the evidence put forward on behalf of the local authority. I have to bear in mind always the difficulties in relation to resources and the fact that the local authority will inevitably have to implement the order in the way that it feels best able so to do, providing it obeys the spirit. I am quite unable to decide, even if it were appropriate for me to do so, which of the two versions I have just indicated is right, but I am quite satisfied that, on the face of what I have read, there is no basis upon which I could properly make a further mandatory order.
11. Paragraph three is no longer relevant because it is accepted that that relates to an allegation which the judge rejected.
12. Fourthly, the defendant was to provide a hoist to place the claimant into, and take the claimant out of, the David Hart Walker, to which I referred earlier, by Monday 15 April 2002. M accepts that the hoist was provided, but, in what counsel on her behalf recognises is a fresh claim, asserts that V would only be able to use the David Hart Walker once a week, as opposed to once a day. She asserts that that restriction is likely to cause V to regress, given that she uses the walker at least once or twice a day at home.
13. Once again, that allegation is dealt with in some detail by Mrs Dawson for the local authority. She asserts that, although they were not initially able to comply with it for reasons which were beyond their control and demonstrated in correspondence, it has now been provided. She goes back to the Statement of Special Educational Needs, which states that V should receive:

"Daily opportunities to step and walk, with adult support and also using her David Hart Walker, to promote her weight bearing, physical exploration and mobility skills."

She also states, in these terms:

"The LEA has interpreted this as daily opportunities to walk, which also includes the use of the Hart Walker once a week."

She says that that interpretation was made clear to the parents and there was no challenge to it at the hearing in March. She also gives more detail in relation to that allegation.

14. Once again, this paragraph seems to me quite inappropriate for an application under the provision of liberty to apply. It is a fresh allegation. On any view, it seems to me, the defendant has fulfilled the obligation to provide the hoist.
15. Fifthly, the judge ordered:

"The Defendant to employ one full-time member of staff or more than one parttime member of staff with effect from Monday the 15th day of April 2002 in order to enable compliance with the requirement in the Standard [sic] of Special Educational Needs for one-to-one support."

In relation to that, M states that it is, in fact, the lack of staffing which is precluding V's return to school:

"As I understand it, a member of staff will be made available for V for three hours a day between 9am and 12pm. However V, has in the past, experienced problems within the classroom before she was withdrawn from school as a result of staff shortages. I believe that the class she was in before was a much smaller class than the class that she is due to go into."

Once again, this is dealt with in some detail by the local authority who assert that they have complied with the order and that M has misunderstood the requirements of the Statement. The Statement reads:

"1:1 enabling support for the majority of her time in school including group work and break and dinner times. It is expected that a key worker will be identified who has overall liaison but that the support will be shared with others who are familiar with V and able to meet her needs. It is also expected that there will be specific handling sessions which will require the assistance of two adults."

She says:

"V's parents mistakenly believe that a fulltime member of staff must be employed exclusively to meet V's needs and in addition to staff already employed by the school. The SEN tribunal did not specify how V's provision was to be arranged. Indeed, they cannot do this as it is not within their remit. The manner in which staff are deployed is for the school to arrange provided the requirements of the SSEN are met."

She goes on to say:

"In April 2002 when V was due to return to James Rennie three additional part time members of staff were used to ensure the staffing ratio was as stipulated in V's SSEN, both to provide the 1:1 support for the majority of her timetable and to ensure the assistance of more than one adult for specific moving and handling sessions. However, only one new part time member of staff was employed and two other staff were moved from other duties in the school when some pupils left."

16. I have to say that, on the face of it, that seems to me a full answer to the claim made in relation to paragraph five. Once again, I have no idea whether it is right or wrong, but, nonetheless, on the documentation it appears that the local authority's case is that paragraph five has been implemented.
17. Finally, paragraph six:

"The Defendant to consider the Claimant's mother's letter dated 10th day of January 2002 as [soon as] practicable and thereafter to make their recommendations pursuant to Regulation 17 of the Education (Special Educational Needs) Regulations 1994 within the Statutory time frame."

This relates to the question of reviews in relation to V. This part of M's statement seems to me to demonstrate the intractable nature of the dispute between her and the local authority. She effectively, during the course of it, accuses the local authority of doing the minimum, and using these sections as a means of avoiding their responsibility in relation to the child. This is dealt with, again fully, in the local authority's evidence.

18. Having looked at the matters raised in the helpful skeleton arguments have received and the oral evidence, I have come to the conclusion that none of the matters raised are suitable to be dealt with under a liberty to apply. I rather agree with Mr Clayton that for judicial review purposes when one is dealing with what are allegedly unlawful decisions or breaches of statutory duty, it is very important that the precise nature of the breaches should be specified, so that the defendant has the opportunity to deal with them and the court has the opportunity to identify them clearly on the documentation.
19. I have been referred to cases relating to the function of judicial review, and have also been referred, by Mr Rawlings, to cases relating to training of teachers or lack of it. As I said earlier, the documentation I have seems to me to indicate that the local authority has a full defence to the allegations which are made, whether it is a valid defence or not, I am quite unable to say. But I am able to say that it would be quite inappropriate for me to deal with this matter by way of liberty to restore or liberty to apply. I hope this will not happen, but in the unfortunate event that further disputes arise between M and the local authority, they should, in my judgment, be by way of a further application for permission to apply for judicial review, and that application and any acknowledgment of service in relation to it should be placed before Jackson J for consideration on the papers.
20. I propose to make no order on the present application, unless I am persuaded otherwise by either counsel, save to discharge paragraph seven of Jackson J's order, the liberty to apply, which, with great respect to him, does not seem to me to have helped, but merely served to confuse the issue.
21. I say a last word, perhaps because in my normal manifestation I am a judge of the Family Division and I know only too well how, in family disputes, issues can become deeply entrenched. V's parents are obviously devoted, courageous and determined parents and V is very lucky, I think, to have them as her parents. But there is a time, I think, when determination can turn to stubbornness and I would very much urge both parties in this dispute to try and talk to each other. It is most unfortunate and quite contrary to V's interests, in my view, that she is not in school, and I would urge both parties, perhaps particularly M and her husband, to reconsider their respective positions, with a view to ensuring that she can attend school as soon as possible.
22. The order made by Jackson J was a highly unusual one and I know only too well from my experience in the Family Division, dealing with care proceedings, how expensive they are and how expensive litigation generally is for a hard-strapped local authority. In my view, the money spent on any further application for judicial review would be much better saved and used for other purposes, whilst V's parents and the local authority resume discussions to ensure how V can be safely returned to school. That will inevitably involve compromises on M's part, but I see nothing in the papers which indicates to me that the local authority is acting in bad faith, and, in my judgment, if the documentation I have read is correct, it is seeking to do its best for the child.
23. Therefore, there will be no order on the application under the provisions of liberty to apply, save that the paragraph itself will be dismissed, and I make a direction that, in the event of any further application for permission to apply for judicial review, that will be sent to Jackson J for consideration.
24. MR CLAYTON: My Lord, may we first of all thank you Lordship for canvassing issues in the judgment. There are two points we would like to raise on costs, which will be very brief. The first is that we would seek the normal costs order; in other words, that costs against the claimant be deferred to the costs judge. The other matter which we would ask your Lordship to record on order is that reference was made to a wasted costs order, but not pursued. I say that really for this reason: your Lordship has indicated a view as to how it might be best for this matter to be resolved. I think partly with that in mind, my instructions are not to pursue the subject I mentioned before, but, in order to assist if we get caught up in intractable difficulties in the future, in our respectful submission it would be valuable to have reference in the order itself to the fact that that consideration was given to it because it really is very unfortunate if we get stung --
25. MR JUSTICE WALL: Consideration was given by you to apply for a wasted costs order?
26. MR CLAYTON: I would simply invite your Lordship to record the fact that an application was made but not pursued; that is the way I put it. I understand --
27. MR JUSTICE WALL: Forgive me, I want to be quite clear on this, Mr Clayton: what order are you asking me to make on costs? No order or an order that the applicant pay the costs, not to be enforced or what?
28. MR CLAYTON: I am asking your Lordship to make two orders. The first is the normal order, the football pools -- I think the correct order, and the associate will correct me, is that the defendant have the costs from the claimant, subject to a detailed assessment. I think that is right.
29. MR JUSTICE WALL: That is not a football pools order.
30. MR CLAYTON: Football pools orders have gone after this CPR --
31. MR JUSTICE WALL: I see the associate looking rather worried because she is in the crossfire between you and me.
32. If I were minded to make an order at all, it would be the claimant to pay your client's costs, but that order not to be enforced without leave of the court. That is an order which demonstrates the court's view about costs, but makes it clear it does not want to punish the claimant, for whom the order would obviously be a hardship. You can, by all means, write in correspondence, "you will remember that we raised with the judge the question of a wasted costs order, but we were such nice chaps that we did not pursue a costs order". You can do that in correspondence, but I do not think I should record on the order that you made an application but did not pursue it. I do not think that is appropriate.
33. MR CLAYTON: Can I deal with the first point first? I think, my Lord, just so that we are clear, that the order I was seeking would have no effect other than a football pools order.
34. MR JUSTICE WALL: Well, forgive me, can I ask the associate what she thinks? My understanding is that the best order, from your point of view, effectively would be a football pools order, not to be enforced without leave. So, if they won the football pools, you could then say "now they can afford to pay".
35. MR CLAYTON: Yes. My Lord, the reason I made the point on an order for costs is because there is a Court of Appeal authority which I have not brought, which makes it clear under the CPR that, after the CPR, questions of enforcibility -- the old issues of --
36. MR JUSTICE WALL: Go to the costs judge.
37. MR CLAYTON: Go to the costs judge. That is the only point I am making. It is certainly, so we are clear, not an attempt to seek costs from the claimant. My understanding is that football pools orders are no longer appropriate.
38. MR JUSTICE WALL: Let me hear Mr Rawlings on this.
39. MR CLAYTON: It is the order which used to be called the football pools order: it is now called the lottery order. Those that represent me are not exactly sure, but the order is: the determination of the costs order to be postponed until further order of the court, because what happens with a legally funded client is that any costs order is determined by the costs judge.
40. MR JUSTICE WALL: Yes.
41. MR CLAYTON: If an order is made against a legally funded client, the costs judge has to assess whether that client can pay, but in a situation where that legally funded client ought to have to pay, the determination of their ability to pay is postponed indefinitely, unless an order is made by the court. That is the old football pools order, but it has a different way of expressing it.
42. MR JUSTICE WALL: Well, my way of expressing it sounded much simpler to me: not to be enforced without leave.
43. MR CLAYTON: It used to be "not to be enforced without leave" --
44. MR JUSTICE WALL: Can you resist that Mr Rawlings?
45. MR RAWLINGS: No, I accept that that is the right order, but it is not in those terms.
46. MR JUSTICE WALL: I see. I think the associate has the answer for us. Did you hear that?
47. MR CLAYTON: Yes. In other words, we are seeking no more than the normal order.
48. MR JUSTICE WALL: The effect of the order is that the order for costs is not enforced without further application to the court.
49. MR CLAYTON: Precisely. It is not made with a view to seeking costs from the claimant. It is just that the new form of the order is in that form.
50. MR JUSTICE WALL: Very well. Anything else?
51. MR RAWLINGS: My Lord, yes. I need detailed assessment of the claimant's --
52. MR JUSTICE WALL: Very well. Perhaps it would be sensible if I ordered a transcript of this judgment at public expense, which means that neither of you have to pay for it. That will be placed on the file and distributed to the parties. So, a copy of the transcript of this judgment at public expense is to be placed on the file and a copy provided for each party. I think that is probably it, is it not?
53. MR RAWLINGS: There is a copy of the original judgment coming through as well.
54. MR JUSTICE WALL: Is there? Is it necessary any more now? I would have liked it a couple of days ago. Is it too late to cancel that? Do we really still need it, do you think, Mr Rawlings?
55. MR RAWLINGS: I think my client would like to look at it, but I do not think it needs to be publicly funded by the court. If it comes through, it comes through, and we will look at it then.
56. MR JUSTICE WALL: Well, I will not say anything about it. Let us leave it. I think the associate is advising me to invite you to draw the order. I do not think it will be too difficult. Thank you both very much.