KS & Anor, R (on the application of) v London Borough of Croydon

The claimants seek judicial review in respect of the alleged failure of the London Borough of Croydon Council, as local education authority, to make suitable provision for their education, and more generally in respect of the alleged failings of the Council to provide sufficient secondary schooling in its area. The claimants are children, each of them 14 years of age, each an unaccompanied asylum seeker, each currently looked after by the Council under the relevant provisions of the Children Act 1989, and each acting by the Official Solicitor as his litigation friend. For the purposes of these proceedings they are known as KS, NA and ZU. The part of the claim that relates to NA has been withdrawn because a place for him has very recently been found at Riddlesdown School. The other two claimants have so far not been able to find places for their education at a secondary school and the parts of the claim which relate to them remain live and continue to be pursued.

On 5th August 2010, in a letter before claim, the claimants' solicitors challenged the failure of the Council to make arrangements to secure the claimants' entitlement to full time schooling in a secondary school in the Council's area. They requested the immediate provision of suitable interim education under section 19 of the Education Act 1996 until an offer was made of a full-time placement at a school in the Council's area. When that letter was sent the claimants' solicitors' request was for the admission of each of the claimants into Selsdon High School, as this was understood to be a school at which the availability of places had been confirmed. Replying to the claimants' solicitors on 24th August 2010 the Council said that it had

On 26th August 2010 the claimants' solicitors wrote again to the Council observing that the limited language courses provided at the Purley Language College did not discharge the Council's duty under section 19 of the 1996 Act, and that the section 19 duty could not be said to have been discharged in respect of KS as he had not been offered any interim education at all. The claimants' solicitors also expressed their dissatisfaction with the Council's response on admissions to the Quest Academy because there was no guarantee that places would be available for the claimants at the Academy on 15th September 2010 when the forthcoming school year was to begin. A response was sought from the Council by 31st August 2010, after the Bank Holiday weekend. No such response emerged.

On 3rd September 2010 judicial review proceedings were begun. By an application for urgent consideration in Form N463, interim relief was sought in the form of suitable interim education under section 19 of the 1996 Act.

On 6th September 2010 Collins J ordered that the matter was fit for expedition and was to be listed before the end of October 2010 for a rolled-up hearing of the claimants' applications for judicial review and, if permission for the bringing of the claims was granted, the substantive hearing of the claims themselves. Collins J did not grant interim relief.

On 10th September 2010 the claimants renewed their application for interim relief for suitable interim education.

On 27th September 2010 Lord Carlile of Berriew QC, sitting as a deputy judge of the High Court, considered an application by the claimants seeking an interim order for their education. He ordered that the claimants' application for interim relief be granted until the date of the rolled-up hearing and, specifically, that the Council must forthwith provide the claimants with suitable interim education under section 19 of the 1996 Act. He observed that those directions were "an appropriate interim measure to maintain the education of the claimants pending final determination".

On 4th October 2010 the Council informed the claimants' solicitors that arrangements would be made for each of the claimants to receive 15 hours of tuition at the Purley Language College. No details were given of the nature and scope of the education to be provided.

The claim is composed of four grounds. These relate, first, to the alleged failure or refusal of the Council to admit each of the claimants into a maintained school in its area, in breach of several provisions of the Schools Standards and Framework Act 1998; secondly, to the alleged failure of the Council as the corporate parent of each of the claimants in public care to ensure the efficient education of the claimants in accordance with sections 7 and 19 of the Education Act 1996; thirdly, to the Council's alleged failure to safeguard the welfare of the claimants in accordance with several provisions of the Children Act 1989 and, fourthly, the Council's alleged breach of the claimants' right to education under article 2 of the First Protocol to the European Convention on Human Rights and of their right under articles 8 and 14. Reduced to its essentials, however, the claim makes two principal complaints (as summarised in paragraph 2 of the skeleton argument of Mr~Ian Wise QC and Miss Shu Shin Lu). The two complaints are these. First, in breach of its statutory duties to educate the claimant children pursuant to sections 7 and 19 of the Education Act 1996 the Council has failed, and continues to fail, to secure full time suitable secondary education at school or otherwise than at a school for the claimants. Secondly, in breach of sections 13 and 14 of the Education Act 1996 the Council has failed, and continues to fail, to secure the availability of sufficient schools providing suitable full-time secondary school education in its area.

The parties have now agreed that it is appropriate for the rolled-up hearing to be adjourned in part and that at this stage the court should consider the first main issue, namely whether and what relief should be given in respect of the alleged failure of the Council to comply with its duties under section 19 of the 1996 Act. Thus, the second main issue relating to the general question of the sufficiency of secondary school provision in the Council's area would be left for consideration at a subsequent hearing and appropriate case management directions made for the further progress of the case in advance of that hearing.

The essential facts relating to the claimants, their care and their education are not controversial. The factual matrix applying to each of them displays several common features. There is no dispute over the age of either of the claimants. The Council acknowledges that they are 14 years old. Both are of statutory compulsory school age. Both are provided with foster care placements made under section 20 of the Children Act 1989, KS with Miss Rashida Mussani, ZU with Ms Fauzia Khan. Both, therefore, are "looked after" by the Council under sections 22 and 23 of the 1989 Act. Both of the claimants' foster carers have applied for their admissions into school. Both have been unsuccessful in that endeavour. None of the schools to which applications have been made has offered either of the claimants a full-time placement. Both of the claimants attend the Refugee Council in Brixton, and receive ad hoc education from volunteer teachers there. The Council does not dispute that such education does not amount to suitable education for present purposes. After the present proceedings were begun, early in October 2010 both claimants were offered places on courses at the Purley Language College for tuition in the English language. Such tuition involves students attending classes for 15 hours a week.

KS was placed in foster care with Miss Mussani on 24th December 2009. From that time until the proceedings were issued on 3rd September 2010 he received no full time education. In March 2010 he was refused admission to Selsdon High School after an admissions interview held on 17th March 2010 at which it seems that his age was not believed. By the end of April 2010 all options for his being placed in a local school seemed to have been exhausted. The situation in which KS has found himself has been described by Miss Mussani in her witness statement in this way:

The present position is that KS has had an application made on his behalf on 5th October 2010 for a place at the Quest Academy, which was formerly Selsdon High School. That application is going to be considered and determined by the governing body of the Quest Academy on 3rd November 2010. That, I was told, is the first day on which the application can be considered. It seems that the application cannot be considered before then because, the governing body being new, the headteacher being new and the half term holiday intervening, there is no practical option but to wait until the governors come together at the time appointed for their first meeting. I was told that there are year 10 places available at the Quest Academy and that the Council can see no reason why KS should be unsuccessful in his application for one of those places.

ZU was placed in foster care with Miss Khan on 4th December 2009. He attended Purley Language College for four weeks from 24th May to 28th June 2010. Apart from that course he has received no education. In May 2010 he was refused admission by Selsdon High School after an interview. By the end of July 2010 all of his options for a place at a local school seemed to have been exhausted. His situation is described in this way by Miss Khan in her witness statement:

Like KS, ZU has an outstanding application for a place at the Quest Academy, which is due to be decided on 3rd November 2010. As I understand it, he also has an outstanding application for a place at Addington High School, which is due to be dealt with at about the same time. It is possible therefore that by the early part of November 2010 ZU will have received two offers of a place at a secondary school, and if this turns out to be so he will have to elect which to accept, if either. Apparently, his preference is for the Quest Academy.

The court has before it no direct evidence from any of the staff of Purley Language College. However, in his witness statement, the claimants' solicitor, Zubier Yazdani, has stated that on 12th October 2010 he made inquiries as to the nature of the courses provided at the college and was informed by the administrator that the English language course was not a comparable alternative to secondary school education, the only provision being for the teaching of the language. The courses are apparently offered to students of a variety of ages and nationalities, the classes being taught typically in class sizes of six or seven pupils. The students are assigned to classes according to their ability. The courses run either for a week or for six weeks at a time. The classes begin at 9 am and finish at 12 noon on weekdays.

For the Council, its Director of Commissioning, Performance and Partnership, Miss Alison Critchley, has produced a witness statement, dated 8th October 2010. Miss Critchley explains the general situation facing the Council as a local education authority in dealing with the needs of the unaccompanied asylum seeking children for whose education it is responsible. She states:

For the Council, Miss Richards took me in the course of her submissions to a number of social services documents and other material in which, among other things, the claimants' abilities and progress in the use of the English language have been referred to. I do not propose to quote from those documents. It is right to say that there are several references in them, both those that relate to KS and those that relate to ZU, to the efforts each of them is making in learning and speaking English, and to the level of achievement they have so far attained.

In A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14 the basic structure of educational provision in this country was described by Lord Bingham of Cornhill (in paragraphs 14 to 16 of his speech). Lord Bingham referred to the four elements identified in the Education Act 1996. The first element is the parents of a child of compulsory school age, who are under a duty by virtue of section 7, to cause every such child to receive efficient and suitable full-time education, either by regular attendance at school or otherwise. The second element is the Secretary of State, who is charged by section 10 of the Act to promote the education of the people of England and Wales. The third element is the local education authority, which is required by section 13(1) of the Act to secure that efficient secondary education is available to meet the needs of the population of their areas, and, by section 19(1), to make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The fourth element consists of the maintained schools themselves. Lord Bingham observed that this fourfold foundation has endured for a long time because it has certain inherent strengths. In the first place, it recognizes that the party with the keenest personal interest in securing the best available education for a child is, or ought to be, the parent of the child. Secondly, it recognizes that, for any child attending school, it is that school through which the education provided by the state is in practice delivered. And, thirdly, the regime recognizes the need for a safety net or longstop to ensure that the education of those who, for any reason, are not being educated at school in the ordinary way is not neglected. It is plainly intended, observed Lord Bingham, that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility for this rests in the last resort with the local eduction authority.

The relevant context for the consideration of that basic legislative background is to be found in the Children Act 1989: in the provisions of sections 20, 22 and 23. Section 22 relates to the general duty of a local authority in relation to children looked after by them. Section 22 (3) sets out the duty of a local authority looking after any child:

In March 2010 the Department for Children, Schools and Families issued guidance which is entitled "Promoting the Educational Achievement of Looked After Children". Paragraph 8.1 of the guidance states that it is issued under section 7 of the Local Authority Social Services Act 1970, which means that it must be followed by local authorities unless there are exceptional circumstances that justify departing from it. Paragraph 46 of the guidance, under the heading "Supporting Educational Achievement and Aspirations" states that:

Subsection (1) of section 19 of the Education Act 1996 provides:

Reference was made in argument to a number of authorities which bear on the application of those statutory provisions: R v East Sussex County Council, ex parte Tandy [1998] AC 714, in particular the speech of Lord Browne-Wilkinson at pages 742 and 743 and at pages 748 and 749; R(G) v Westminster City Council [2004] 1 WLR 1113, in particular paragraphs 42, 43 and 46 in the judgment of Lord Philips MR; B v London Borough of Barnet Council 12 CCLR 679, in particular paragraphs 38 to 40 in the judgment of His Honour Judge McKenna QC; C v London Borough of Brent Council [2006] EWCA (Civ) 728, in particular paragraphs 44 and 45 in the judgment of Smith LJ and paragraph 52 in the judgment of Laws LJ; and R(S) v Kent County Council [2007] EWHC 2135 (Admin). In C v London Borough of Brent Council Smith LJ in paragraphs 44 and 45 of her judgment, said this:

In R(S) v Kent County Council Mr Nicholas Blake QC (as he then was), sitting as a deputy High Court judge, referred to the decision of the Court of Appeal in R(G) v Westminster City Council and said:

DES Circular 7/90 refers, in paragraph 26, to the Secretary of State's suggestion that, in reviewing the amount of lesson time, the governing bodies of all maintained schools should take as a general guide to good practice that for children in the age group of 12 to 16 years a minimum quantity of weekly lesson time should be 24 hours. It is pointed out in paragraph 28 of the circular that the hours recommended are a minimum.

The School Admissions Code, which came into force on 10th February 2010, was made under section 84 of the School Standards and Framework Act 1998. Section 84(3) of the 1998 Act requires the bodies listed in paragraph 9 of the Code to act in accordance with the provisions of the Code. In paragraph 1.57 of the Code, under the heading "Children in Care", it is stated that admission authorities must give highest priority to children in care in their over-subscription criteria. In paragraph 2.9 it is stated that children in care are among the most vulnerable in society, and it is therefore of paramount importance that a school place is found which is in the best interests of the child, as quickly as possible. Paragraph 3.37 states that where a local authority considers that a particular academy will best meet the needs of the child, the authority can ask that academy to admit that child even when it is full.

The essential questions for the court at this stage are, first, whether the Council has, in respect of each of these two claimants, discharged its duty under section 19 of the 1996 Act and, secondly, if it has not, whether the court should grant relief to remedy that breach so far as it can.

Mr Wise submitted that the circumstances of the present case are extreme. Throughout his submissions he has stressed the extraordinary delay which has occurred in the case of both claimants and the Council's continuing failure to bring them into suitable education. This delay, Mr Wise has submitted, has been and remains unacceptable in the light of the priority given to "looked after children" in the School Admissions Code. The claimants have been denied the education that they ought to have had, for the best part of a year. In the case of KS, who was placed in foster care as long ago as 24th December 2009, the delay from the end of the 20 school days maximum period, say from the end of January 2010, has been approximately nine months. In the case of ZU, who was placed in foster care on 4th December 2009, the delay, save from the second week in January 2010, amounts to a period of some nine and a half months.

Even now, Mr Wise submitted, the Council has not assessed the claimants' individual circumstances with a clear focus on the educational needs pertaining to each of them as an individual, having regard to his age, his ability and his aptitude. The most that the Council has done has been to consider them as members of a group, which it is handling as a group. In these circumstances, submits Mr Wise, the Council is not able to rebut the presumption in paragraph 54 of the statutory guidance promoting the educational achievement of "looked after" children, that educational provision should be taken to mean full-time placement in a local mainstream school unless the circumstances of the child, such as his or her particular special educational needs, make full-time education in a mainstream school unsuitable. Mr Wise lays emphasis here on the concept of the circumstances of the child, which are to be distinguished from considerations external to the child, such as the physical or financial resources available to the local authority concerned.

On behalf of the Council Miss Richards has not sought to minimize the significance of the delay. She acknowledged that, as she put it in paragraph 12 of her skeleton argument, it is highly regrettable that the claimants do not have a place at a secondary school and that this situation has persisted for a very long time. She added, however, that it does not necessarily follow from this that the Council has acted, or is acting, unlawfully. With that general proposition I agree.

Miss Richards also emphasised the prospect of a satisfactory outcome for both claimants in the near future when the decisions on the applications which have been made for them to the Quest Academy are taken on 3rd November 2010. She said that the Council could see no reason why those applications should fail. Moreover, as paragraph 3.37 of the Code makes plain, an authority can request an academy to admit a child even when the academy is full, and if the academy refuses to admit the child the case can be referred to the Secretary of State. Here, in my judgment, the corollary of Miss Richards' submission that the Council has not necessarily been acting in breach of its section 19 duty would equally well apply. It does not follow from the potential resolution of their difficulties that the Council has been, or is now, properly discharging that duty in respect of each of these two claimants.

Mr Wise countered the optimism held out by the Council with the observation that it is not certain that the applications to the Quest Academy will be successful, and therefore that a further period of doubt and delay could ensue. This of course is true. The court, however, cannot speculate about that. It can only sensibly look at what the Council has done, or not done, and measure that against the statutory requirement for suitable education.

Miss Richards submitted that the provision the Council has made for the claimants at Purley Language College demonstrates that the Council has taken reasonable steps to secure for them adequate interim arrangements, albeit not full time and not in the broader curriculum that would necessarily be available to them in a mainstream school. It is true, I accept, that if the claimants were in mainstream schooling they would be taught with a larger number of children in the classroom than the small number of students with whom they can be taught English at the Purley Language College. It is also true that the tuition in English at that institution may well be more intense than would be so in a secondary school. There may therefore be some benefit for the claimants in that.

Miss Richards took care to make clear that the Council is not suggesting that the provision being made at the Purley Language College is seen as justifying any further delay in the claimants' integration into mainstream schooling. The Council maintains that this is sensible and rational provision to make on an interim basis pending the outcome of the applications to the Quest Academy, and that it does, at present, afford suitable education for the claimants' needs.

What I cannot accept, however, on the evidence with which the court has been provided by the Council, is that the Council has demonstrated, for each of these two children, according to the circumstances of that particular child, how it has considered and resolved the question of what is suitable education at school, or otherwise than at school, for the period for which such an arrangement must last. In my judgment, such an exercise demands that individual consideration be given to the child's abilities and needs in the context of his education, and to the range of factors, including his educational history and other matters, such as his ability to speak and write the English language but not confined to that, which bear on the efficiency of his education. The context of course is exceptional provision. That is what section 19 of the 1996 Act is concerned with. It is right, as Miss Richards submitted, to remember that a section 19 decision is by its nature a longstop measure. It is right to keep in mind too that section 19 countenances the possibility that suitable education may not be education at school. It may be otherwise than at school, which, it is agreed, may in principle include education in an institution such as a language college. At least until the new subsection (3A) introduced by the Children, Schools and Families Act 2010 comes into force, subsection (1) of section 19 does not stipulate that suitable education must be full-time.

As has been held, for example in R(S) v Kent County Council following the decision of the Court of Appeal in C v London Borough of Brent Council, it is in the first instance for the local education authority to consider and resolve what is reasonably practicable in the circumstances, and the court will be reluctant to intervene upon a rational and sensible decision, taking account of the particular needs of the child in question. As Laws LJ stressed in C, it is not for the court to usurp the role of a statutory decision-maker, a principle all the more important where expert judgment is involved in a delicate and difficult area. But this presupposes that the judgment has been exercised consistently at least with conventional public law principles. If it has not been so exercised, then, even on the limited basis of a conventional Wednesbury review, the court may grant appropriate relief.

In the present case I do not consider that the court would need to step beyond a conventional Wednesbury approach to find the Council's decision to place the claimants in Purley Language College, purportedly in the exercise of its duty under section 19, was not a lawfully taken decision, or to find that the Council has not otherwise discharged its section 19 duty. The Council has, in my judgment, failed to show that it has applied its corporate mind, as it was obliged to do, to the individual circumstances of the claimants when it made the decision it did. The evidence of Miss Critchley does not demonstrate that the process of decision-making went beyond a generic consideration of the claimants as members of a group rather than as individual children, with individual abilities and needs. Nor does that evidence represent even a cogent after-the-event explanation of how the claimants' individual circumstances would warrant the conclusion that the decision taken was justified. That would not necessarily be fatal if there were convincing evidence elsewhere in the material before the court which made good the submission that the Council had given proper consideration to the issues to which each of the claimants' abilities and needs gave rise, but there is, I consider, no such evidence. Disparate comments made from time to time in the Council's Social Services and other records, including, I acknowledge, documents which have been produced by the Council's officers with responsibility for education, do not constitute a rational process of decision-making under section 19. As Mr Wise submitted, those documents were prepared for a different purpose.

When I asked Miss Richards what evidence there was of the process of decision-making under section 19 in this case, the answer she gave was that there was no document which records that process. The decision was apparently the result of discussions between Mr O'Leary, the Council's School Organisations Manager, Miss Howard, the manager of the Council's Unaccompanied Minors Team, Miss Tourney, the Council's refugee consultant, and social workers responsible for each of the claimants. Such discussions appear to have taken place since Lord Carlile QC made his order of 27th September 2010. In the absence of any contemporaneous or other record, or any direct evidence about those discussions, it is impossible for the court to conclude that, even within the exceptional context of the Council's section 19 duty, all relevant considerations pertaining to these claimants were taken into account and irrelevant ones ignored.

It follows that, in my judgment, the Council has thus far failed properly to exercise its duty under section 19 in respect of each of these two claimants.

Plainly, the court must take a pragmatic view, so far as it can, of the scope for improving the present situation. That responsibility rests ultimately, as it has for some nine months since the claimants became "looked after" children, with the Council. It will remain with the Council whatever decisions are made by the Quest Academy on the claimants' applications when they are considered on 3rd November 2010. But, in approaching its task, the court must keep in mind that the basic principle contained in the comprehensive scheme of statute and guidance to which I have referred is that "looked after" children are among those to whom the highest priority is to be given in the provision of education. Miss Richards submitted that if the court were to hold, as I now have, that the Council has not discharged its duty under section 19, the correct course would be an order requiring it to consider, or reconsider, its decision in accordance with that duty, and not a mandatory order requiring any particular form of suitable education, which would be tantamount to the court taking the decision for the Council. I agree. Having given that indication, I will hear counsel as to the appropriate form of relief.

MR WISE: May I have a moment whilst I discuss with my instructing solicitor the particular form of the relief. I indicated yesterday in general terms what we were seeking. There are two points. Firstly, we concur with your comment about it not being appropriate to make a mandatory order ordering a particular form of education for these children. In those circumstances the appropriate order would be a mandatory order requiring the local authority to comply with their duties under section 19(1) to provide suitable education for these two claimants. The next question is then the timing of that. You heard me yesterday say that our preference would be forthwith. That is not a helpful word in these circumstances. Taking a pragmatic view, bearing in mind that it is mid-week and it is going to take some little time for the authority to digest what you have said and consider the alternatives and possibilities, what those instructing me, including the Official Solicitor who sits behind me, is that the local authority should be required to put in place suitable education by next Monday morning. That would give them the rest of the week to sort out…

MR JUSTICE LINDBLOM: That gives them two and a half working days. The half term holiday begins next Monday, does it not?

MISS HEARNDEN: Yes.

MR JUSTICE LINDBLOM: That is a consideration that ought to be borne in mind.

MR WISE: It is for the Quest School.

MISS HEARNDEN: All maintained schools in Croydon, their half term is next Monday.

MR JUSTICE LINDBLOM: The effect of the order which Mr Wise is contending for would give the Council rather longer, would it not?

MR WISE: Not necessarily. That depends on what is deemed to be suitable education. Miss Richards indicated that there were mainstream schools that could be utilized in these circumstances. It may be a mix of home tuition and other support that is given.

MR JUSTICE LINDBLOM: You would say, why suspend that to carry one over the half term holiday? You are contending for an order which directs the authority to reconsider in accordance with its duty under section 19 and to provide suitable education by the beginning of Monday morning, 25th October 2010.

MISS HEARNDEN: It seems that there are two stages to what the court is being asked to make an order providing for. The first is the decision making process per se which ought to give consideration to the individual needs and so on of these two young people. The second is the application of that, what services are secured and provided for that reconsideration process to take place. I would ask for seven days to allow the assessment to be conducted and the conclusion to be produced in writing. In terms of the provision of that education I think I ought to take instructions from my instructing solicitor who is not here. I ask for a brief adjournment.

MR JUSTICE LINDBLOM: I am content to allow you that. My initial reaction to what you have said is that I would expect provision to be made at least within the seven days. I would be reluctant to allow a further period for provision to be made. Seven days may strike a sensible balance. I do not think the provision itself should be held in suspense any longer than that. That is my present view. You will have to dissuade me. It may be that next Monday is too soon. Mr Wise may be able to persuade me that it is not. The provision ought to be capable of being made a week from today.

MR WISE: It may be helpful to ventilate the costs issue. Our primary submission is that costs follow the event and therefore we should have our costs. I spoke to Miss Richards about this and a number of other matters. We agreed to talk about the information and the directions with respect to issue 2. We did, as you would anticipate, discuss the issue of costs and the potential permutations of what may arise this morning. Miss Richards accepted that if she was unsuccessful the authority should bear the costs of yesterday. We, however, go rather further than that. We say that the authority should bear all the claimants' costs up to and including today. That would include all the costs of issue 2 up to the present. We say that for a number of reasons.

MR JUSTICE LINDBLOM: When you say issue 2 you mean the issue which I have now determined? You are not widening the application beyond that.

MR WISE: Not at all. I think you were right in saying issue 2. It was issue 2 unless I am mistaken.

MR JUSTICE LINDBLOM: The issue which I have determined, the section 19 issue, I have determined in your favour. You are right in correcting yourself and me. It was issue 1. It may be that in giving judgment I referred to the issues the wrong way round, in which case I will correct them. Section 19.

MR WISE: With regard to the section 19 issue the general rule that costs follow the event should apply. We say, however, that the order should go further and include the costs of the other matters raised by the claimants, in particular the sections 13 and 14 issue. We say that for a number of reasons. Firstly, it is difficult to define the precise costs of the specific issues. Secondly, we say that the reason why the sections 13 and 14 issue was adjourned was as a consequence of the defendants' conduct. You will be aware of the general costs rules that conduct is a relevant factor in determining where costs should lie. In particular, the reason why we were not able to pursue that issue yesterday was because we did not have the information. We made copious efforts to obtain the relevant information. It is only now that we have an agreement by the local authority that they will provide that information. That has to be seen in the wider context of the defendant's conduct in these proceedings generally. Your attention was drawn yesterday to the fact that there has never been an acknowledgement of service.

MR JUSTICE LINDBLOM: When did the time for that expire? It should have been filed and served no later than when?

MR WISE: That was the point we raised yesterday. We have dealt with that. We do not seek to raise that again today. Going back to paragraph 5, you see reference to the order of Collins J that the defendant file and serve detailed grounds and any evidence upon which it seeks to rely within 21 days – that would have been by 27th September – and final service of the skeleton argument by 12th October. You will see in paragraph 6 that the authority sought to amend the order of Collins J. They had until 7th October. They did not comply with what they asked for themselves.

MR JUSTICE LINDBLOM: Why is it that when the sections 13 and 14 aspect of the matter proceeds the court cannot take a global view of the situation at that stage in granting or not granting costs?

MR WISE: It can.

MR JUSTICE LINDBLOM: I wonder whether it might be better to take it in those two stages. You are certainly entitled to costs in relation to the section 19 aspect of the case.

MISS HEARNDEN: I have taken instructions. On the section 19 point it is not resisted that the claimants should have their costs. On the adjourned issues I would invite the court to reserve the costs for decision at the final determination.

MR JUSTICE LINDBLOM: That is what I am inclined to do. The court can take a global view. It may be that the point you make has force, but it seems to me that the court may take a more informed view as to costs when the second part of this two part battle has been concluded. I am not shutting out the argument in relation to costs. It might be sensible to reserve that at this stage and for you to make those submissions later.

MR WISE: I will not press the point. The question is dealing with a costs order that has sufficient precision to the section 19 issue. That would include all the costs of yesterday and today and preparation for that hearing. You will recall that in the skeleton argument that we served and filed on 10th October we at that point suggested that there be an adjournment of the sections 13 and 14 issue. We should have the costs of that skeleton and subsequent…

MR JUSTICE LINDBLOM: Your skeleton argument deals with disclosure and with the interim provision.

MR WISE: It does but we had to deal with the disclosure issue during the course of the section 19 proceedings.

MR JUSTICE LINDBLOM: I understand that.

MR WISE: The order should specify that all our costs incurred in the preparation of the skeleton argument and subsequently up to today should be included and such costs prior to these proceedings bearing on the section 19 issue. That is difficult in itself.

MR JUSTICE LINDBLOM: It would be a matter for assessment. It seems to me that the right order to make would be the claimants to have their costs of preparing to argue and arguing the section 19 issue, to include the preparation of the skeleton argument and to include the appearance…

MR WISE: It would be more convenient to put a date. The preparation of the skeleton argument on 10th October and subsequent costs.

MR JUSTICE LINDBLOM: At that point work was suspended on your side on the sections 13/14 issues. That will be a matter of assessment. Provisionally one is looking at an order for all of your costs from 10th October to date?

MR WISE: Yes.

MR JUSTICE LINDBLOM: Insofar as those costs properly relate to section 19 and the disclosure issues, the preparation of the skeleton argument and the attendance at this hearing.

MR WISE: Yes.

MR JUSTICE LINDBLOM: Can you resist that?

MISS HEARNDEN: I am refreshing my memory of the skeleton argument. There is the additional issue of disclosure. It was raised. You are receiving written submissions on Friday.

MR JUSTICE LINDBLOM: It seemed to me that the efficient way of dealing with that was to deal with that on the papers because yesterday it seemed that a degree of consensus was emerging. I decided that rather than hear argument yesterday, because argument on the section 19 issue took all day, that it would be better to deal with that on the papers which might have been done in the normal way. I took that view. Mr Wise and Miss Richards acceded to that view.

MR WISE: If it helps, because your Lordship and my learned friend were not privy to the conversation I had with Miss Richards, consensus has been agreed as to how we proceed on the information gathering aspect.

MR JUSTICE LINDBLOM: In terms of what is going to be disclosed.

MR WISE: That is agreed. It is going to be done by direction of the court.

MR JUSTICE LINDBLOM: That is sensible. There will not be any need for written submissions. That is a saving of what might otherwise have been costs incurred. Does that help you?

MISS HEARNDEN: It does. In general terms I do not think that I can resist the hearing, the costs that have been incurred. May I take instructions about the relief you have ordered and may I take instructions about the skeleton?

MR WISE: I am reminded of the costs with respect to NA. That case has now been withdrawn because the education has been offered to him. We say that we should have all our costs of his case because plainly at the time proceedings were issued he was getting no education whatever. The authority have taken sufficient steps to compromise proceedings at this very late stage. It was the foster carer who took the action of her own initiative.

MR JUSTICE LINDBLOM: She got him a place at Riddlesdown.

MR WISE: Our claim was properly brought. We acted entirely appropriately in not just bringing the claim but in the resolution of the claim. It is difficult to see why we should not have all our costs in respect of him.

MR JUSTICE LINDBLOM: Would you take instructions? That may be correct.

MR WISE: I should inform you of one other part of the conversation I had with Miss Richards. I did moot the point just raised about the costs of all of the proceedings up to date. She was of the view that if the court was minded to make any order going beyond the section 19 issue, she would want to put in written representations.

MR JUSTICE LINDBLOM: That would include what you said about NA.

MR WISE: I did not raise NA with Miss Richards. The context of the conversation was the sections 13 and 14 issue.

MR JUSTICE LINDBLOM: At the same time, if you did not deal with that in your conversation with Miss Richards, if that is right – that is the NA aspect of the matter – what is to be lost if that too is dealt with at the subsequent stage when the whole of the proceedings are laid to rest?

MR WISE: That is an option. NA falls away. Your Lordship has been seized of the claim. It was this that withdrew the claim.

MR JUSTICE LINDBLOM: To be fair to Miss Hearnden, who is standing in today, it may be that Miss Richards, were she here, would wish to make submissions about any slicing of the costs in relation to NA. Bearing in mind that we have taken the view that costs in relation to other matters should be reserved to the subsequent hearing on other aspects of the claim, should we not take the same view?

MR WISE: My learned friend wants five minutes to take instructions. It may be that during those five minutes I can take instructions. Perhaps 10 minutes is more realistic.

MR JUSTICE LINDBLOM: I will deal with relief first.

MISS HEARNDEN: Thank you for the opportunity to take instructions. By way of recap, the order being proposed is something along the lines that the defendant comply with its duty under section 19 to reconsider the needs of the claimants and to put in place suitable education by and the issue of date. As a matter of practicality, since next week is half term I suggest a week on Monday.

MR JUSTICE LINDBLOM: Monday, 1st November.

MISS HEARNDEN: MISS HEARNDEN: Failing that, I am instructed to suggest seven days.

MR JUSTICE LINDBLOM: Seven days would be to Wednesday, the 27th. Would you be content with that?

MR WISE: We are content for 25th October. It is in my clients' interest to have it as soon as possible, the earliest date your Lordship deems to be reasonable.

MR JUSTICE LINDBLOM: As I said before seven days seems to be right. Unless you want to make submissions to dissuade me from that, I am going to say the 27th October. That is enough time in which to make a decision in the manner I have indicated ought to be done and to make the provision. That can be done. It is urgent and it should be done by the Council. 27th October.

MISS HEARNDEN: As to the question of costs…

MR WISE: May I be clear about the terms of the order?

MR JUSTICE LINDBLOM: I will ask the two of you to draw up the order and submit it. I am going to make clear what I think should be in the order. My view is that the order should state that the defendant is to comply with its duty under section 19 of the Education Act, and by reconsidering and putting in place suitable education provision by no later than 9 am on Wednesday, 27th October 2010 for each of the claimants, KS and ZU.

MR WISE: We are content with that.

MR JUSTICE LINDBLOM: That is what it should say.

MR WISE: That decision should be communicated to the claimants' solicitors.

MR JUSTICE LINDBLOM: That must be right.

MR WISE: We do not want that after the event. I think it would be correct for that to be communicated a reasonable period before 9 am on 27th October.

MR JUSTICE LINDBLOM: Arrangements will have to be made for the children.

MR WISE: 4pm on Monday.

MR JUSTICE LINDBLOM: It gives the foster carers and the children time to go to school on the Wednesday morning.

MISS HEARNDEN: On the question of the section 19 costs, I have taken instructions on my learned friend's proposal to highlight the hearing costs of yesterday and today as attributable to that issue. In addition any work done on the section 19 argument and the skeleton argument produced dated 10th October. My instructions are not to resist those in principle as costs payable arising out of the issues yesterday, but I am instructed to indicate that my client's reserve their position of detailed assessment to argue about the extent to which those issues were foreshadowed in the grounds.

MR JUSTICE LINDBLOM: Clearly there will have to be detailed assessment. That I endorse. That should be drawn up as well.

MR WISE: One issue that came to mind relates to the issue of the interim application, the application that Lord Carlile dealt with, that you referred to in the judgment. That was to put in place the section 19 provision. We say that the costs order that the defendant has agreed to should be enlarged to include the costs of and incidental to the application.

MR JUSTICE LINDBLOM: The costs of the application for interim provision as granted by Lord Carlile. You cannot resist that?

MISS HEARNDEN: No.

MR WISE: With respect to the rest of the costs, NA, we would propose that be dealt with by written submissions within seven days to your Lordship. The remainder of the costs, there are two parts to the remainder of the costs, the section 19 part of the pre-10th October work and the rest.

MR JUSTICE LINDBLOM: Everything else.

MR WISE: We contend that we should all those costs. The appropriate way to deal with that would be by written submissions to you in seven days. Conveniently the costs of NA and the other outstanding costs can be dealt with in one document.

MR JUSTICE LINDBLOM: That does not deal with my view which I thought you had tentatively endorsed, that the court at the end of the whole thing would be able to take a better global view of both those aspects of costs. It seems to me that is the right way to proceed, whether it is me or not who hears it ultimately. I am not saying that you have not got a strong argument but the court can take an overall view of costs. Clearly costs may be an issue at the end of that hearing too. All of those loose ends can be tied up at the end. There is no reason why assessment of the section 19 costs should not proceed. That is a separate exercise.

MR WISE: It would be difficult to unravel the costs.

MR JUSTICE LINDBLOM: That would be an argument for not making any orders today.

MR WISE: I think that is right. In relation to the third element of the costs, with regard to NA we do strongly urge the court to adopt a course that would resolve that once and for all. Those should be dealt with within seven days.

MR JUSTICE LINDBLOM: I am prepared to accept that submission. There is no reason why that cannot be done.

MISS HEARNDEN: I would resist that submission. There are some versions of the history which would show that a claim was brought which prompted action from the defendant. That action was dealt with sufficiently satisfactorily that it went away.

MR JUSTICE LINDBLOM: I am minded to accede to Mr Wise's submission that the matter should be dealt with on the papers within seven days of today.

MISS HEARNDEN: I am inviting you to reserve all outstanding costs, both on the NA now discontinued matter and the matter adjourned. There are some versions of this case where a claimant brings a claim and the defendant does what is sought. The claim goes away. The action of the defendant reveal that the claim was proper and was directed to provoke action. The reasons for the discontinuance are as recorded, the actions of NA's foster parents. The issues about whether the claim was meritorious or not are bound up with the legal submissions to be advanced at a later date. To deal with those by way of written submissions in advance of the determination of the questions about the sufficiency of education provision in the local authority might pre-empt the court's view at a later date.

MR JUSTICE LINDBLOM: That was the view I originally held. Your position is not prejudiced if it is dealt with in that way? You are at liberty to advance all the cogent arguments you may wish to advance as to the costs in relation to NA.

MR WISE: They can be done now or later. The arguments would be the same.

MR JUSTICE LINDBLOM: The hearing itself is going to be soon. All outstanding matters, other than the costs which I have ordered today, should be dealt with in one fell swoop when the matter is disposed of. That is neater and it may avoid injustice in the meantime.

MR WISE: There is a strong possibility that the matter comes back before you in any event.

MR JUSTICE LINDBLOM: It may. It should be reserved to me if possible. You will go away and draw up the order. It will contain agreed case management directions.

MR WISE: Yes.

MR JUSTICE LINDBLOM: Then I can approve that order.

MR WISE: It is likely to be the end of the week or drifting over to Monday. Miss Richards is in Birmingham. I have a commitment tomorrow. We will endeavour.

MR JUSTICE LINDBLOM: I will be in the Queen's Bench Division. There will be no difficulty approving a draft order.

MR WISE: It will be e-mailed to your clerk.