O, R (On the Application Of) v London Borough of Hammersmith And Fulham

MR JUSTICE OUSELEY: This is an example of a number of cases which the Administrative Court has concerning the placement of a severely disabled child in appropriate accommodation. There is also an issue about the extent of the local authority's duties.

Severely disabled children impose, as they grow older, increasingly severe strains on their family, parents and siblings. The growing costs of their education or accommodation and care lead, at times to severe disagreements and conflict with the local authority which may owe duties under the Children Act towards the child. There is often a pattern of negotiations with lawyers involved and a seemingly tight timetable, driven by the strain under which the family lives and educational changes, term timetables and vacations. There is a tension to a degree between the urgency which the claimant may feel the case requires and the opportunities for negotiation which the claimant may wisely pursue. There is a great deal of scope, unfortunately, for distrust to arise between the local authority and the claimant's family, and for a claimant to feel, rightly or wrongly, that the local authority is unjustifiably dragging its feet in responding to challenges to its assessments and further and other expert reports on the child's welfare.

It can lead to litigation being commenced in response to the growing pressures to a timetable which may, to some extent, be self-imposed by the claimant, and to the court being faced with urgent applications which nonetheless require careful consideration and time, both from the defendant local authority and from the court itself. It is clear that a defendant local authority needs some time properly to respond to challenges by way of claims that its placement is unlawful, or that there is but one school to which a child should be sent. It is not uncommon for applications for an order for a specific placement by way of interim relief to be made, at short notice or even without notice. Such a without notice application should not be acceded to.

Here, the claimant sought interim relief by way of specific placement on five days notice. One of the major problems with interim relief in the form of an order for the placement of a child in a particular school is that it is very often akin to substantive relief. If the child is in an educational institution for a period of time, the disruption upon removal becomes a factor in the substantive decision. The child will also have developed in response to the circumstances at that institution which will, in turn, effect substantive relief.

The problem of interim relief in the form of an order for placement at a particular establishment on short notice is what led Simon J in this case to order a hearing five days after he dealt urgently with the matter on paper. He said this, having given a time estimate of 45 minutes:

I regard the course Simon J took as being, if I may say so, a very sensible and practical one to deal with this sort of case. Interim relief by way of placement should not be granted on paper, nor at a hearing on notice too short to enable an authority to provide a fully considered response. In reality these cases require an early substantive hearing, rather than interim relief by way of placement. There ought instead to be an urgent directions hearing at which interim relief in the form of placement is not discussed as the object of the hearing. The purpose of the directions hearing should be to enable the parties, represented by counsel, with the advantage that that can often bring, to explain to the court the immediate needs of the claimant and his family. That will enable the court to do two things. It will enable the court to decide how best the action should proceed, and consider the advantages or otherwise of an interim relief hearing as opposed to an early rolled up hearing. It will enable the court to consider whether interim measures short of the placement decision should be required to deal with the immediate problems which the family faces, to the extent that it is thought necessary for that to be done. This may often be agreed.

In this case, the hearing has borne fruit in the form of the agreement reached between the parties as to how the child was to be dealt with during what was clearly envisaged to be a very stressful half term vacation and to which an interim placement at the school in question would simply have been an inappropriate answer, and discussions as to what might happen were the child not to return to the school he currently is at. It has also enabled the court to consider with the parties whether a rolled up hearing or an application for interim relief would be the most appropriate next step and to discuss the timetabling for such a hearing.

In my judgment, that is the procedure that ought normally to be followed where interim would have such a significant effect on what happens to the child's long term future. The placement of the child in a school is a particularly important example of where a directions hearing, with the purposes I have descirbed, as opposed to an interim relief hearing is appropriate.

It is also possible, although not everything that has happened here has afforded encouragement in this, that some of the perhaps inevitable wrangling between the parties as to who was responsible for what part of the delay can be avoided. The concern of both parties is with the well-being of the child.

What I have said I hope will be a practice routinely followed.

The normal order for costs of such a hearing should be costs in the case. Mr Greatorex, for the local authority, submits that that should not be so here, because the claimant sought to pursue, in the skeleton argument to which the defendant had to prepare a response, the claim for interim relief in the form of placement at the new school. Although there are other points in the skeleton argument, that is the guts of it, and it is perfectly clear that that is what Simon J intended should not happen. I do not consider that the normal order is appropriate. I consider the appropriate order to be no order as to costs for today's hearing.

Permission is given to rely on this transcript.

Thank you very much.

MR BROACH: Thank you, my Lord.

MR JUSTICE OUSELEY: Will you provide me with an order?

MR BROACH: Certainly, my Lord, I will do that.

MR GREATOREX: Two practical matters in relation to the circulation of that judgment, my Lord. I wonder whether your Lordship would make explicit in the transcript that permission is given to rely upon it, because --

MR JUSTICE OUSELEY: Yes.

MR GREATOREX: -- there is sometimes some concern about anything --

MR JUSTICE OUSELEY: I will say that. Permission is given to rely on it.

MR GREATOREX: I do not whether it also assists if your Lordship directs -- I do not know if it will make any difference -- that a copy should be sent to the Legal Services Commission, simply so that they at least are aware of it, even if individual practitioners are not. Because almost all of these cases, because they are brought by children, will be funded by the Commission.

MR JUSTICE OUSELEY: Yes.