By : Clive Rawlings
Administrative Court rules on permission and interim relief where local authority fail to amend statement in time for phase transfer and pupil remains out of school
In R (ota) J v LB Croydon, 25th September 2008, Admin Ct, CO: 8668/2008, Mr Justice Latham, gave permission for a judicial review and made an interim relief order that the Defendant arrange and pay for the Claimant to attend the school of parents choice, St Piers School, until the end of December 2008 pending resolution of the dispute over Part 4 by SENDisT or further order; and ordered the Defendant to pay the Claimant’s costs. He stayed the substantive hearing until the end of January 2009.
The Claimant reached the end of compulsory school age in July 2008. His mother had made representations for him to transfer to St Piers School as his present school did not offer post 16 provision. The local authority had conducted an annual review in October 2007 but not undertaken any assessments. The local authority failed to issue a phase transfer statement by February 15th 2008 pursuant to Regulation 19 of the 2001 Education (SEN) (England) (Consolidation) Regulations despite the Claimants mothers request for the transfer to St Piers. Between May and the end of August 2008 the local authority sought a number of alternative (cheaper) placements but were unsuccessful. Judicial review proceedings were issued leading to further unsuccessful attempts by the local authority to find a school including two proposed on the eve of the hearing rejected by the headteacher of each school.
The local authority issued a proposed amended statement of SEN on the eve of the hearing with no school named in Part 4, asserted that SENDisT should deal with the matter and meanwhile the child should return to his previous school in the interim.
Latham J accepted the submissions of Clive Rawlings for the Claimant that permission should be granted as there was a strong arguable case that the local authority were acting unlawfully by continuing to fail to issue a final amended statement pursuant to Regulation 19 (3) which requires a school to be named, and that applying the judgment of Ouseley J in R (G) v Barnet  ELR 4 this was an exceptional case where interim relief should be an order naming a school place for one term initially even though such matters are ordinarily resolved by SENDiST. Balancing the interests of the child who had no school place, and could not realistically return to his previous school, versus the additional expense to the local authority and taking account of the local authority delays the balance of convenience lay with the child. The parties agreed to stay the substantive hearing.
Solicitors: Fisher Meredith
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Hardwicke. However if you have any other queries about this content please contact: