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 WC2A 2LL
		23rd May 2008

1. MR JUSTICE OUSELEY: The first claimant is a boy aged nearly 16 years old with a long history of emotional and behavioural difficulties, including violence, which led to his exclusions from school and permanent exclusion in October 2007 in the last mainstream school which he attended. He has subsequently only attended a Pupil Referral Unit on one occasion. In January 2008 he was diagnosed as having Asperger's Syndrome, a social communication disorder, although he did not suffer from the full range of difficulties associated with that condition. He was represented by the Official Solicitor.
2. The second claimant is his mother, with whom he lives most of the time. Both are represented by the same counsel, Miss Luh. The first claimant's father is separated from his wife, but is still involved in looking after his son and the relationship with the mother has far from wholly broken down. They remain, so far as the care of their son is concerned, mutually supportive.
3. The defendant is the local authority for the area in which the claimants live, although the mother is housed there by a different local authority.
4. The claimants now seek in effect to challenge the lawfulness of the defendant's core assessment of the first claimant's needs dated 1st April 2008 and the care plan dated 16th April 2008, both produced under the Children Act 1989. The claimants also seek to challenge the lawfulness of its carer assessment under the Carers and Disabled Children Act 2000 of the second claimant's needs. This carer assessment is included in the core assessment. There is also a final amended Statement of Educational Needs dated 2nd May 2008. This is relevant to the challenges which have been made, but neither in the grounds nor in the skeleton argument is the lawfulness of that Statement challenged and no relief is sought in the grounds as amended in respect of it. I shall return to that later.
5. The challenge to the core assessment and care plan is made, in particular, by reference to the conclusions reached in it about the way in which the first claimant should be accommodated pursuant to the duties and powers under sections 20 and 17 of the Children Act. The contention is that, for a variety of reasons, the first claimant should be accommodated in a residential school for both his and for his mother's benefit.
6. The claim was actually begun in January 2008 before any of the decisions now challenged had been made. It was a challenge to an initial assessment and various other omissions and failures of the defendant. The claim was stayed for a while pending completion of the assessments now challenged. On 21st April 2008, Stadlen J gave permission to the claimants to amend their grounds and ordered what is called a "rolled up" hearing. The amendments which he had permitted do not cover any challenge to the core plan and could not cover a challenge to the final amended Statement of Educational Needs. Such challenge as is raised in relation to those is raised by way of the claimant's skeleton argument.
7. Although the focus of the challenge is the decision in the assessment, plan and the statement that the first claimant should not live in or be educated in a residential school, the challenge now alleges that the defendant failed to carry out lawful assessments or to implement a lawful care plan of the first claimant's needs as a child and the second claimant's needs as a carer. It contends that the conclusion that a shared care strategy involving both parents is irrational and that the views of professionals who believed that a residential school placement would be suitable had been ignored, and relevant assessments had not been done. It contends that even if a shared care strategy were suggested it would not be proper to pursue it unless there was evidence that it might work and evidence of a close monitoring system in place which was not the position.
8. Finally, it is contended in the grounds, as summarised in the skeleton argument, that the defendant has failed to comply with its statutory obligations to consider the case in the round. But at the end, as the claimant's submissions have made clear, the heart of their complaints is what they say is the defendant's necessarily unlawful failure to arrange a residential placement for the first claimant under whatever statutory provision would enable or compel them to do so. Declaratory relief is sought that the core assessment and care plan are unlawful and should be quashed and replaced. As I have said, the relief sought does not directly challenge the final amended Statement of Educational Needs.
9. The first ground which I deal with, in the way in which the arguments have developed, concerns the assessment in the core assessment and the decision in the care plan in relation to accommodation, and in particular accommodation under section 20 of the Children Act. Section 20 provides in subsection (1):

"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of . . .

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."

Subsection (4) gives a discretionary power to the local authority to provide accommodation for a child who falls outside the scope of the duty in section 20(1) where they consider that to do so would safeguard and promote that child's welfare. However, by subsection (6) -- and this applies both to the duty under subsection (1) and to the exercise of the discretionary power under subsection (4) -- it is provided that:

"Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with a child's welfare --

(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and

(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain."

Subsection (7) precludes an authority providing accommodation if the person able and willing to provide or arrange accommodation for the child objects.

10. Section 17 of the Children Act contains in subsection (1) the general duty to safeguard and promote the welfare of children in need within a local authority's area and, so far as consistent with that, promote their being brought up by their families. Section (4)(a) is in like terms as subsection (6) of section 20 in terms of the role which the child's wishes play in determining what services are to be provided. Section 17(6) makes it clear that the services provided may include the provision of accommodation. That is therefore a further discretionary power available to a local authority in relation to the provision of accommodation.
11. It is not in dispute but that the first claimant is a child in need. It is clear that within the core assessment the defendant Council reached the view that the first claimant did not come within the scope of section 20(1)(c), the only provision relied on in section 20 and accordingly, inevitably concluded that no duty under section 20 arose. It is perfectly possible to see that conclusion from the core assessment, even though it is not couched as a decision to that effect. I do not propose at this stage to go through all the aspects of the core assessment which bear out that fact because it is reflected in considerations referred to throughout the core assessment, in sections ranging from health to education, emotional and behavioural development, family and social relationships, social presentation, self-care skills and accommodation.
12. The question in reality raised by Miss Luh's submission is whether that conclusion was a lawful conclusion. First, I reject the contention that it is for this court to reach a decision on the merits and facts as to whether section 20(1)(c) is satisfied. Such an approach is plainly contrary to the wording of section 20 where the phrase "who appears to them" makes it perfectly clear that the matter is for the judgment of the local authority. If in a particular case the local authority has failed to reach a decision on that issue when it was one that called for a decision, the appropriate remedy would be a mandatory order requiring them to consider it and to reach a conclusion.
13. The decision relied on for the opposing contention was R (on the application of L) v Nottingham County Council [2007] EWHC 2364 Admin The situation, however, which gave rise to the passages relied on by Miss Luh was wholly different from the one which arises here, and while I understand why Burton J said what he said in that case, it cannot be regarded as authority for the broad proposition that the court should decide the issue, in the light of the clear terms of section 20.
14. It is perhaps unclear from the core assessment whether the view formed that section 20(1) was not satisfied was because of the view formed that the claimants would get assistance under the core plan or whether, as Mr Moffett for the defendant says on instructions, the Council was not satisfied that, even without that help, the mother was prevented from providing suitable accommodation or care. But it is not said to be irrational or wrong in law in some way for a view in relation to that section to be reached, taking account of the help available through a core plan, if that was indeed the Council's approach.
15. The attack on the rationality of the decision was made on a different basis. First of all, it was said that the local authority ought to have concluded that the mother was prevented from providing the child with suitable accommodation. The basis for that did not relate to any unsuitability for the child as such, the local authority, having concluded that the accommodation was suitable for him and his mother to occupy. The challenge to the suitability of accommodation related more to the ability of the mother to care for his particular needs at home. The point in relation to the suitability of accommodation related to the mother's circumstances, notably, her heart condition, the stairs she had to climb, the fact that there had been trouble with some of the neighbours because of the actions of the first claimant, and the fact that it was temporary accommodation. She was unable to get permanent Council accommodation until the accumulated rent arrears had been paid off. These arrears were reducing, although not as fast as could have been the case because the presence of the first claimant at home meant that his mother could not work as many hours as she had done when he was in full time practical education.
16. Even if those types of considerations are capable in certain circumstances of showing that a child had no suitable accommodation, there is certainly nothing irrational in the conclusion that the accommodation was suitable in the core assessment. If the accommodation were unsuitable, because of the mother's circumstances, for her to occupy with her son, it would be for the housing authority under the Housing Act (whichever one it is owes the duty) to provide more suitable accommodation for the family in priority need.
17. The next and more important attack on the rationality of the section 20(1) decision related to the question of whether the mother was prevented from providing her son with suitable care. Here, the mother points to the real difficulties faced by her with a child with his difficulties at home. These include the impact on her own life, social and employment, and the fact of incidents of violence towards her by her son. But it is perfectly clear that he is being cared for from the references throughout the core assessment. The fact, which I do not for one moment doubt, that caring for her son imposes a very considerable strain and limit on the mother in the way it does at present, does not alter the fact that the local authority is fully entitled to conclude that she is in fact providing him with care, albeit at some cost to herself. The local authority's analysis shows that it was very well aware of the difficulties. It acknowledges that the mother is rightfully concerned about having the son live with her in the light of his aggressive and intimidating behaviour, but recognised that strategies could be adopted to ensure that she has appropriate support, including support when she has the operation which she needs on her heart.
18. I now turn to the next group of alleged errors of law concerning section 20. The main consideration given in the core assessment to section 20 concerns residential schooling and accommodation. A major problem is that while the mother, and indeed it appears the father, want their son to be accommodated in a residential school to meet both his and their care needs and his educational needs, the son does not want to go to such a school. Neither his parents nor the child wanted him to be taken into care. I quote from the core assessment:

"It is agreed by the family and all professionals involved that coming into public care by means of section 20 of the Children Act 1989 would not be in the best interests of [the son]. I have explained to the family that a stable foster placement would be more difficult to find, given [his] age. A placement in a children's home would have potentially negative consequences for [him] as he would have more freedom. This could see him associating with peers who could have a negative influence on him, and lead and encourage [him] to commit more anti-social behaviour, leading to him getting into trouble with the law. Moreover this would also make returning to education much more difficult for him. The family continue to be able to provide a home for [him].

Therefore I believe the best solution would be for [him] to stay with his parents. They would have 'shared care' for [him], meaning that his mother would have him for a period, for example, during the week, and his father would take care of [him] during the weekends. Both parents feel that this could work although I understand that his mother is rightly concerned about having [him] live with her, in light of his aggressive and intimidating behaviour. This is fully acknowledged. Therefore services would have to be ongoing to both parents . . . "

19. A number of points have been raised on this. First, it was contended that the consideration given to a foster home and a children's home implied that the Council had necessarily been satisfied that the requirements of section 20(1) had been met, otherwise why were those issues being considered. It was therefore only the manner of meeting them which was being discussed. I reject that contention because it is clear from the core assessment that the mother was providing care, notwithstanding the strain on her which doing so entailed. Nor did the authority think that that care was about to cease. Her temporary absence for an increasingly urgent operation would be dealt with as the father accepted, and as referred to in the core assessment, by his son living with him during that period. The assessment did look at the strain on the mother and the way in which she was coping, but there was no conclusion that the strain prevented her from providing the care which she was doing, despite the problems it created for her, and which she would continue to provide. The reference in the passage I have just cited to the family continuing to be able to provide a home for the son includes more than just his having a roof over his head but covers also the care for him and his well-being which is implicit in the notion of a home.
20. Mr Moffett persuades me that the consideration given to section 20 and the part that I have quoted and the discussion of the wishes of the parents and child relate to the question of whether the discretionary power in section 20(4), or indeed in section 17(6), should be exercised so as to provide a different form of accommodation for the child. For these purposes, section 20(6) makes those wishes relevant.
21. Indeed, the suggestion that the consideration of the wishes of the child, or indeed the parents, was unlawful in relation to section 20(1) goes considerably beyond the proper construction of the statute and is not in fact borne out by the passage cited in support of that suggestion from the judgment of Holman J in R (on the application of H) v Wandsworth London Borough Council [2007] EWHC 1082 Admin, 10 CCLR 451 at paragraph 55. But be that as it may, the issue, in my judgment, was being considered under section 20(4) from which it is plain that the wishes of the child are relevant.
22. The second point raised in relation to the way in which section 20 was considered within the core assessment is that the options available under section 20 were unlawfully curtailed because there was no discussion with the parents, nor in the core assessment, of a residential school as a form of accommodation instead of as a form of educational provision. Thus, it is said that the exercise of the discretion ignored a material consideration. I accept as a general proposition that residential accommodation in a school is not excluded from accommodation under the Children Act, although it would be very unusual, especially if it were primarily for accommodation purposes. But I recognise that the core assessment and care plan require the local authority to look at all such factors in the round -- as some would say, holistically. Such a decision would require some circumspection because of the views which a local education authority (especially if a different authority) might have, and the role of parental wishes in relation to education and rights of appeal in that respect to SENDIST. However, it is clear that the option was not rejected because of some mistaken view that it could not ever lawfully be provided by reference to the Children Act provisions.
23. Third, the issue of residential school accommodation was considered from the education point of view and there is an obvious link between a residential school from that point of view and accommodation. In reality, the issues were considered in the round when the relevant passages in the analysis in the core assessment are read. The wishes of the child conflict with the wishes of the mother, and indeed the father. It is clear from what is said about residential schooling in the analysis section of the core assessment that child and parents are at odds. The core assessment identifies the importance of reintegrating the child into the classroom as soon as possible. It says:

"His family have made it clear that they believe that he needs a residential special needs school. They feel it would be in the best interests of [their son], although I feel that [he] would have to be strongly committed to this option for it to work. So far [he] has made it clear to me that he does not want to attend a residential school, but wouldn't mind attending a special needs school during the day."

24. It is clear that the defendants do not think residential schooling is suitable. The child is against it and would prefer a day school and living at home. I recognise the limits to the extent to which the wishes of a teenager, troubled or otherwise, should be decisive of educational and residential provision, but in the light of what is set out in the analysis it is impossible, in my judgment, to say that this option was effectively unlawfully ignored in the consideration of what was best for the child. It is also a problem for Miss Luh to say that on behalf of the child the decision to take account of his wishes was unlawful, however much on behalf of his mother she presses that point.
25. The next ground concerns the assessment of the parenting capacity of the father. The assessment of parenting capacity is different from (although there is a clear overlap with) a carer's assessment. The focus of the former is on the capacity of the parent to care for the child. The focus of the latter is on the impact which caring for the child may have on the well-being of the carer. The claimants point to a parenting capacity assessment made in relation to the mother which forms part of the core assessment. Miss Luh contrasts that with the absence of such an assessment on the father. She points in particular to its importance in circumstances where the mother and father have very different approaches to dealing with their son and his difficulties, and those very different approaches are part of the problem because the son lacks a consistent structure from his parents within which to live his life. However, it is perfectly clear, notwithstanding the way the matter appears to be put at times in the written material, that the first claimant does not seek to exclude the father from the shared care role which the authority envisages. She is keen for his assistance in relation to that and, as the core assessment says, they are mutually supportive in their care for the son, notwithstanding that they live apart. It is clear, therefore, that they wanted shared care.
26. I have already set out what the Council concluded in relation to shared care, but I should add that the passage continues after that which I have cited to discuss what is needed in that respect, including support for the father. It also deals with the father's preparedness to have his son live with him during his wife's heart operation and through her recuperation, recognising that the father would have to have a high level of support from services during that period. It would be impossible to find evidence of the working of the strategy until it has been started, so the suggestion that it should not be started until there is monitoring and evidence that it works becomes a wholly circular submission. It is envisaged that there will be close support from services for both parents. To complain that the system has not been implemented is scarcely a sound basis for an attack upon the core assessment and care plan.
27. In reality, the way the argument developed it appeared to be this: that a parenting capacity assessment of the father would have revealed his limitations in a way that would have led to greater support for him, or perhaps a more favourable decision on residential accommodation in the light of the further deficiencies which such scrutiny might have revealed. The allegation in law was that the Council could not reach a conclusion in relation to shared care without a capacity assessment on the father as well. I reject that contention. In reality, the defendant was well aware of the mother's views on her husband and of the problems that had existed in the past and still continue because of her more lenient or tolerant attitude towards him and the rather more severe, strict or even authoritarian attitude that the father takes towards his son in what may be a less understanding approach. The core assessment makes those disparate approaches apparent and seeks to work towards resolving them in order that a consistent framework be provided for the son, which is particularly important for a teenager with Asperger's syndrome.
28. The defendant did speak to the father for the purposes of the core assessment, although his full-time work meant that he was not readily available and the discussions appear to have been over the telephone. It is natural that because the son lives with the mother and is envisaged as living with the mother essentially during the week that it would be on her capacity for parenting that the core assessment would focus, and that is why a specific assessment on her was undertaken and one was not necessary for the father in order for the conclusions in relation to shared care to be lawful. In reality, the claimants through Miss Luh were not able to point to any proven significant factor which the Council was not aware of which would have been revealed by a parenting capacity study. It is perfectly realistic in relation to the mother's heart operation for the defendant to accept the father's willingness to have his son living with him. The son has stayed with him on a number of occasions without difficulty, since his parents separated. The Council know that the father is in full-time work and they know his attitudes towards his wife and son. It points out:

"In the past there have been concerns about [the son's] relationship with his father although presently [no concerns have been highlighted]. The son has told me that he enjoys spending time with his father in Highbury and also at his mother's in Finchley, although he prefers staying with his mother as that is where most of his possessions are and is closer to his friends."

29. The core assessment recognises that both parents need support in different ways. The discussion of the son being with his father at weekends, an important aspect of shared care, is also giving the mother a break from his care. In my judgment, it is not sustainable that a separate parenting capacity assessment was required in law in order for the core assessment to be a lawful assessment.
30. The next ground relates to the assessment of the mother as a carer. It was accepted that a carer's assessment for the purposes of the Carer's and Disabled Children Act had been done and it was not suggested that it was unlawful for that to be done as part of the core assessment and included within it. The first complaint is that it did not -- or at least did not explicitly -- go through the structured assessment set out in the practical guidance relating to assessments under that Act. Paragraph 69 of that guidance identifies the key factors to consider in identifying the sustainability of the caring role. These are: economy, that is the carer's freedom to choose the task they will do and to choose how much time they will spend on the caring role; it considers health and safety, ie, the risk to the carer's own health from the caring, the management of the daily routines in the carer's own interests, and the carer's ability to maintain relationships, employment and other interests. Paragraph 70 looks to the risks which a carer may run. Miss Luh says that the structured risk assessment set out in that paragraph was ignored. This structured risk assessment grades the risks as critical, substantial, moderate or low. She contended that the defendant was bound in law to conclude that there was a critical risk to the sustainability of the mother's caring role because, she said, her life was threatened by the son's occasional violence, she had major health problems with her heart and now (evidenced only by the skeleton argument, although I do not doubt it) the mother has cancer. She had no ability to find time for herself and her own needs. She had lost the level of work she used to do. Had the local authority produced this structured risk assessment, this could have led to different support needs being assessed and could have led to the prospect of a residential placement.
31. I reject those contentions. First, this is not a statutory framework but practical guidance. An assessment does not become unlawful simply because it is not structured in that particular way explicitly. Second, it is perfectly clear that the carer assessment within the core assessment, as well as the rest of that assessment, involved consideration of the relevant factors as they impact on the mother's well-being. The assessment looked at the impact of caring for the son on her work, her difficulty in finding time for herself, and on her social life. The assessment was well aware of her health problems, as they then were, and of her need for an operation. It described and discussed the incidents of violence from her son, and the fears of future violence, but it also discussed the present relationship which they had which is somewhat easier in that respect over recent months. The solution to the problems faced by the mother as a carer, in terms of the impact on her well-being, was, firstly, for the father to have the son during the operation and recuperation period and to have him at weekends. There would be support for both parents from a variety of sources in managing their son and there would be support for getting the son back to school which would relieve the mother of the burden of his either being at home during the day, or out without her knowing what he was up to. This in its turn would enable her to undertake more work and to advance her social life. In reality, therefore, all the factors listed for consideration under the various heads of risk were considered and the consequences of them in terms of care provision were dealt with.
32. The only point in reality which Miss Luh raised and said was not referred to in relation to the care assessment was the connection between the mother's work and her reducing the rent arrears to such a level that she would be in a position to gain the points necessary for permanent local authority housing. But that is wholly insufficient to show that a material consideration was ignored, especially as the authority had concluded lawfully that there was suitable accommodation for her and the son. The proper solutions which I have described, including fundamentally getting the son back into full time education, will enable her to work longer hours which was one of its purposes, and that would enable her to do with her earnings what she wished.
33. The last substantive point raised concerned educational provision. Miss Luh did not take issue with the general proposition of Mr Moffett, supported as it is by clear Court of Appeal authority in Re N (a minor) [1996] ELR 135 that judicial review was not the appropriate vehicle for challenging a Statement of Educational Needs which could of course be appealed to SENDIST. Miss Luh submitted, and again this is not at issue, that educational provision was part of a core assessment. What she said here was that because accommodation for care provision and education were so intertwined, the sort of educational assessment, including a psychologist's assessment, which would be required for a Statement of Educational Needs should have been undertaken for the core assessment and then educational provision in the form of a residential school, even if not identified, should have featured in the care plan. Social care considerations, she said, so dominated the type of school that it should be a matter for the core assessment, care plan and, if unlawful, judicial review. She also drew attention to the urgency of the child's position and pointed to the long wait that can arise in SENDIST for an appeal.
34. Essentially this is another strand in the attempt to obtain residential school accommodation for the son which he does not want which, as the party represented by Miss Luh, again puts her in some difficulties. First, the defendant did consider all the issues in the round as the claimants rightly submit it should. As I have already said, it considered residential schooling from the social care and accommodation aspects and rejected it, and consideration was given to the best way of getting the son back into full-time education (the single most important aspect of the assessment) and to the type of special school appropriate for him and most likely to enable him to reintegrate into the educational system quickly. From the social aspects, but taking educational needs into account, it is plain that the view reached by the defendant cannot be characterised as unlawful within the core assessment and care plan.
35. Second, there is no educational psychologist's assessment required for that purpose in law. There is no obligation to obtain one, even though there is a power to obtain one if it is thought necessary for the purposes of that plan. But it is necessary to remember both the timescales envisaged for a core assessment, and for the separate statement and SENDIST process, and the fact that the defendant had an up-to-date psychiatric report, even though I recognise that that does not cover precisely the same disciplines as an educational psychologist. But indeed, an educational psychologist's report would not be required in law for the amendments made to the final amended SEN. The educational psychologist's report obtained by the claimants was not available to the defendant at that time.
36. Thirdly, while I recognise that the remit of SENDIST on appeal is more limited that the rounded view which the defendant has to take in the core assessment, the merits from the educational point of view of residential accommodation will be for it to consider if an appeal is made. At best I can only consider the lawfulness of the decision and not the merits of the educational provision at stake. No doubt SENDIST would consider the contrasting views of the son and his parents and the ability of either type of school to engage his attention to education. I do accept that it is difficult to see that the advantage to the mother of his being thus accommodated could be a relevant factor for SENDIST, but that educational provision and the way it considers it is a matter for SENDIST.
37. A number of arguments were raised about the procedures adopted for the amending statementing process, including the absence of a further educational psychologist's report, but they show no error of law in the core assessment or care plan, or indeed for that matter, if it is challenged, to the final amended Statement of Educational Needs. In so far as there was a challenge raised in any argument to the lawfulness of that statement upon which it was sought to obtain the adjudication of this court, I decline to do more than say that that is a matter for SENDIST. In reality, it was put not as a challenge to that but rather that the importance of the care provision and the intertwining issues should have been dealt with more fully in the core assessment and care plan, but that I reject that as an argument that could demonstrate this core assessment and care plan were unlawful.
38. As a coda, Miss Luh raises a number of points in relation to the care plan itself, contending that it unlawfully fails to deal with the who, what and when, ie, the nuts and bolts of its implementation. For this purpose she cites Richards J in R (on the application of AB and SB) v Nottingham City Council [2001] 4 CCLR 295 at paragraph 20, but in reality there is very little of substance to her points in that respect. No doubt all core assessments and care plans could be fuller when subjected to legal scrutiny, but when pressed to illustrate its deficiencies in that respect only minor points emerged. It is said that transport to school is specified (although not in the final amended statement, but that is a matter for the statement) but no provider is given. That is clearly a local authority provision. The absence of any further naming does not appear to me to be a matter which could give rise to an error of law. The start and finish dates of the provision cannot yet be put in, but it is clear that it is intended to cover the period when the child is in full-time education.
39. Secondly, it was said that there were no start and finish dates for a number of providers. Mr Moffett says that that is because the provisions had started and are continuing without any end needing to be specified. I accept that submission.
40. Third, it is said that there was no specific provision for what would happen when the six months, which is the usual referral period with the adolescent resource team, ends in July 2008; but there will be a review of the care plan before that and, if necessary, the plan will be amended.
41. Finally, a great many points of detail and complaint have been raised in the papers about how quickly the defendant Council recognised and moved to deal with the particular problems of the son and his mother. There are many complaints about numerous aspects of the procedure adopted and imperfections in the consideration of the issues before the Council. Many are now in the past, superseded by the assessments now under challenge and are irrelevant. Many of the points now raised in the skeleton argument on behalf of the claimants do not truly show, singularly or cumulatively, any possible error of law but are points raised due to a very strong desire by the mother to obtain residential schooling for the son against his apparent wishes, but in what his parents undoubtedly see as his best interests. It is not necessary, therefore, for me to recite or deal with them.
42. Undoubtedly, the first claimant creates a very difficult problem for his mother, and indeed for the defendant, particularly in relation to education. It is clear that getting him back into full-time education is the key to his future and indeed to his mother's well-being. But while I recognise the problems, the actions of the defendant in the decisions effectively now under challenge is not unlawful. This would have been a marginal case for permission at best, but as parts of it might just have been arguable, I grant permission to apply for judicial review but I dismiss the claim.
43. MISS PRATLEY: My Lord, I am grateful. The defendant makes an application for its costs.
44. MR JUSTICE OUSELEY: You do?
45. MISS PRATLEY: We do. The claimants are Legally Aided so the usual order will need to be made.
46. MR JUSTICE OUSELEY: Do you want to say anything about that Miss Luh?
47. MISS LUH: No, the usual order will be agreed. Detailed assessment if not agreed.
48. MR JUSTICE OUSELEY: There will be an order for detailed assessment of the claimant's costs. There will be an order that the claimant pay the defendant's costs, not to be enforced without leave of the court. Miss Pratley, could you draw up the order please? There is not an associate today. Could you draw up the order and get it over to court, please?
49. MISS PRATLEY: Yes, my Lord.
50. MR JUSTICE OUSELEY: I am grateful to you, Miss Luh and Miss Pratley, for your submissions.