E, R (on the application of) v London Borough of Islington

The claimant (“E”) is a nine year old child who brings this application through her mother and litigation friend. It raises two quite independent challenges to two separate sets of decisions made by the London Borough of Islington (“Islington”). Both challenges are heavily fact-dependent, and the first ground raises a number of complex and novel points of law. Hence the length of this judgment. On 4 November 2016, permission was granted on both grounds by Jefford J.

The first ground of challenge concerns the scope and content of the right to education under article 2 of the First Protocol to the European Convention on Human Rights. E contends that Islington’s conduct (through a combination of acts and omissions) has violated that article and was therefore unlawful under section 6 of the Human Rights Act 1998. She claims damages as just satisfaction under section 8 of the Act.

E currently lives with her mother (“C”) and two younger siblings (aged four and two) in temporary accommodation in Islington where the family has resided since 28 April 2016. This temporary accommodation is provided by Islington pursuant to Part 7 of the Housing Act 1996. C is profoundly deaf, has no speech (other than perhaps a few words), and is almost completely illiterate. Prior to the events described in this judgment, she had been subjected to sustained domestic violence at the hands of her husband. The first ground of challenge concerns three periods (of several weeks at a time) between June 2015 and June 2016 when E fell out of education.

The sequence of events that led to these periods of absence began in May 2015, when C eventually fled what was then the family home in the London Borough of Southwark, with all three children. On 7 May 2015, with the assistance of a domestic violence charity called Solace Women’s Aid (“SWA”), C applied to Islington for assistance with housing under section 183 of the Housing Act 1996. The application was made on the basis that she was threatened with homelessness and in priority need of accommodation because she had ceased to occupy the family’s previous residence due to domestic violence.

Islington initially declined to accept that it owed any duties to the family, maintaining that any relevant homelessness obligations fell on the London Borough of Southwark. As a result, SWA provided the family with temporary accommodation at a women’s refuge in Islington (Mary Robinson House), beginning on 4 June 2015.

In the chaotic circumstances of this transition, and due in part also to her disabilities, C was not able to pre-arrange schooling facilities for E. As will become apparent, the nature of her disabilities is such that she has difficulty in accessing public services without professional assistance.

On 12 June 2015, SWA wrote on C’s behalf to the Education Admissions Team at the London Borough of Islington notifying them that E was living in the borough and was in need of urgent educational provision. The letter included the following passage:

“[E] is top priority for an in-year application under Islington’s Fair Access Policy (transition and uncertainty, alongside beginning her recovery from domestic abuse). [E] is not currently in education. As a result, she is at risk of experiencing poor outcomes. School offers children who have experienced domestic abuse a safe place to learn, grow, make friends and participate in school life. [E] left behind [her] school, [her] friends, [her] home and [her community]. [E] enjoyed school and excelled in literacy…[E] requires a supportive and nurturing environment to achieve her potential, and gain a sense of belonging during a period of uncertainty.”

It is clear then that, at least from 12 June 2015, Islington had been put on notice that E was a school-age child, residing in the borough, who was not in education. Islington was also aware that she had priority needs that ought to be taken seriously. The authority’s initial response was dilatory, and as a result E was out of education altogether for a period of two months and three weeks.

Part of this time constituted school holidays. For reasons explained later in this judgment, I have come to the conclusion that when computing E’s absence from school for the purposes of article 2 of the First Protocol, the holiday periods fall to be taken into account, but only as part of the general background. It is the term- time absences that are critical.

No attempts were made to provide E with alternative educational facilities in accordance with section 19 of the Education Act 1996, and Islington has provided no satisfactory explanation for this period of inactivity. Any such steps as may have been taken were evidently quite ineffectual, and Islington has advanced no case-specific or individualised resource arguments which could justify this period of delay. The same is true of each subsequent period of absence.

It is important to stress from the outset that, due to her disabilities, C was unable to provide E with any form of home-based education during these periods of absence. She was not even able to read with her. Such was the poverty of communication in the home, that these absences from school must necessarily have impacted on E (educationally and socially) to an even greater extent than they would have impacted on a child whose primary carer was able to provide some alternative support at home.

Moreover, the evidence discloses that whilst in the home E found herself unavoidably providing certain forms of support for C, both in terms of C’s communication with the outside world, and in terms of her care of her younger siblings. When Islington later conducted a young carer’s assessment, the responsible social worker considered it “highly inappropriate” that C had come to rely upon E as a translator in this way (see paragraph 232 below). I will return to this question later in the judgment, but at this stage it is sufficient to point out that education in a mainstream school provided a critically important outlet for E, the only environment in which she could regularly communicate through speech with others (both pupils and teachers) and thus develop her potential.

On 4 September 2015, E began attending St. Mary’s School in Islington. However, she remained there for only seven weeks. On 21 October 2015 Islington accepted that it owed a full housing duty to the family under Part VII of the Housing Act 1996. It wrote to C accepting that she was eligible for assistance, was non-intentionally homeless and was in priority need, with the result that Islington was obliged to provide the family with accommodation pursuant to the main housing duty under section 193(2) of the 1996 Act. Despite this concession, it took Islington a further two months to arrange the necessary accommodation. On or about 3 November 2015 Islington arranged for the family to be provided with out of borough temporary accommodation in the London Borough of Hammersmith and Fulham. As a result of this move, E fell out of education once again, for reasons that will become apparent.

Pausing there, a pivotal point stressed by Mr. Kelvin Rutledge QC for Islington is that on 5 November 2015, two days after the transfer was arranged, the authority’s housing department formally notified Hammersmith and Fulham that the family for which it had a statutory housing responsibility had been transferred out of borough and that Islington had accordingly delegated the discharge of its housing responsibilities to Hammersmith and Fulham (albeit on a temporary basis).

The notice, issued pursuant to section 208 of the Housing Act 1996, provided the names and dates of birth of each member of the family and the address at which they were to be accommodated in Hammersmith and Fulham. From a casual reading of this data, it could be deduced that E was a school-age child. This fact carried the necessary implication that there must be a statutory duty on one or other local authority to satisfy itself that E was receiving suitable education. This was therefore a situation that cried out for effective liaison between the two authorities.

The notice gave no indication of E’s current educational arrangements, or of any plans or proposals that Islington may have had for her future education during the period of the temporary placement out of borough. It did not suggest which of the two authorities should assume primary responsibility for the discharge of the statutory obligation to educate her, or suggest any arrangements (formal or otherwise) whereby the two authorities could co-ordinate over E’s educational needs to ensure they were met promptly and that she could maintain a reasonable measure of educational continuity.

In fact, the notice made no mention of education at all. Of particular significance, it gave no explicit or implied indication of the need for fresh educational provision to be made by Hammersmith and Fulham, and failed to spell out the critical piece of information that any existing arrangements for her education would necessarily be disrupted by the temporary transfer. The importance of this notice to the outcome of the case on Ground 1 will become apparent in due course.

In the event, no adequate steps were taken by either borough to ensure that educational facilities were promptly made available. There is no evidence before me that any significant liaison took place between the two education departments concerning E’s continuing educational needs. E thus had no school education for the remainder of the Autumn term. Following the Christmas holiday, she was eventually found a place at the Sir John Lillie School in Hammersmith and Fulham. By this time, she had missed a further seven weeks of term-time education and two weeks of school holidays.

The family remained in temporary accommodation in Hammersmith and Fulham for almost six months. On 28 April 2016, at short notice, they were required to move into other homelessness accommodation at Iberia House in Islington, where they currently reside.

Despite this unsettling sequence of events, Islington once again failed to make appropriate arrangements for E’s education following her return to the borough. By this stage it ought to have been entirely clear to Islington that the prompt provision of adequate and settled schooling for E was an urgent priority. She had fled domestic violence with her mother and siblings, had a primary carer who was deaf, illiterate and inappropriately dependent upon her, and had been forced to move home three times already in ten months. She had already suffered two lengthy periods of absence from school, and was now faced with moving school (disrupting both her education and her social networks) for the third time in less than a year. Notwithstanding this unfortunate situation, Islington failed for a further eight weeks to discharge its statutory duty to make educational provision for E following her return to live in the borough.

By this time C had solicitors acting for her. In an effort to prompt Islington to discharge its educational obligations towards E, the solicitor wrote on 17 May 2016 in accordance with the judicial review pre-action protocol in the following terms:

“The family have moved between boroughs three times since they became homeless in May 2015. On Thursday 28 April 2016 [C] was required without notice to move between authorities, for the fourth time in a year. This will mean that [E], the oldest child and the only child of school age will have been to four different schools in the course of a year. However, she has not been at school at all since the end of April. This is because after some significant delay when the family were required without notice to move to Fulham, [E] was found a school place in Hammersmith and Fulham. She obviously cannot travel from Islington to Fulham every day. Regrettably, she requires a new school place. Her mother has not received any assistance from the authority, although it was the authority that arranged the move that would obviously disrupt schooling. [E] of course has a statutory right to education, as well as a human right contained in [article 2 of the First Protocol]. You should either provide her with a school place immediately, or arrange for alternative provision in accordance with section 19 of the Education Act [1996].”

In my view, this letter accurately stated the position. Indeed, in the prevailing circumstances, it ought to have been unnecessary for the solicitors to write in these terms, since Islington had been aware of its duties to E since 12 June 2015, at the latest, and was fully informed of her changes of accommodation and their implications (having made the various decisions that brought them about). Despite the urgency of the situation, Islington was slow to respond to the solicitor’s letter. However, on 1 June 2016 a social worker from Islington’s Sensory Team (which caters for the needs of the deaf and hard of hearing) visited C at her home, together with a social worker from the borough’s Children’s Service Department “for the purpose of starting the process of enabling [C] to secure a school for her eldest child” (see the statement of Augustus Williams at paragraph 7). Finally, on 14 June 2016 E was allocated a place back at her former school (St. Mary’s) and was able to re-enter and resume her education.

Before examining the two leading appellate authorities on the right to education, I propose to summarise the analytical framework that they have laid down for determining whether there has been a breach of article 2 of the First Protocol. The process of analysis required to determine whether such a breach has occurred differs significantly from the more familiar process of analysis applicable to other qualified Convention rights.

For the purposes of article 2 it is necessary for the court first to examine the cumulative impact of any unjustified absences from education, as they affected the particular child, in order to determine whether, taken together, they amounted to a “denial” of the right to education. At this stage the court must view the overall situation through a wide-angled lens, aggregating the acts and omissions attributable to all public authorities involved in the case (as would be the approach if the same facts arose in a claim against the United Kingdom in Strasbourg). Uniquely among the qualified Convention rights, the determination of whether the right to education has been violated is to be performed without any necessity for the court first to determine whether the conduct of each public authority was lawful as a matter of domestic law. A breach of domestic statutory or public law duties is not to be equated with a violation of article 2 of the First Protocol.

Instead of approaching the problem through the prism of domestic law, therefore, the court must begin by deciding for itself whether, in light of all the prevailing circumstances, the overall treatment of the child (a) amounted to a “denial” (b) by “the authorities of the state” (c) of “effective access to such educational facilities as the state provides for such pupils”. The question is to be answered pragmatically, on a fact-specific basis, and in light of the identified educational needs of the particular child. If the answer to that first question is affirmative, a violation of article 2 of the First Protocol is established.

Where responsibility for causing the violation lies exclusively with one public authority that will generally conclude the court’s inquiry on liability. The authority in question will have acted unlawfully within the meaning of section 6(1) of the 1998 Act and it will then be necessary for the court to determine questions of just satisfaction under section 8 of the Act.

However, in a case such as this, where more than one public authority is potentially implicated in the breach, the court must go on to determine which authority bore the primary duty for securing the Convention right to education on the particular facts of the case. For the purposes of this exercise, it is legitimate (and will often be necessary) for the court to examine the distribution of responsibilities under domestic law and practice. This is not to enable it to decide whether there has been a breach of domestic law (which will generally be an irrelevant question in this context) but rather to assist the court to identify the public authority that “bore the primary duty to act in accordance with the Convention”. The answer to this question will then determine whether one or more of the public authorities that are party to the domestic proceedings is liable under section 6(1) of the 1998 Act. It will also provide the basis for determining what remedy, if any, should be ordered under section 8(1), and against which authority (or authorities).

As will be clear from this short summary, the striking feature of the analysis mandated by the decisions of the House of Lords and the Supreme Court (to which I will shortly turn) is that it will not always, or even ordinarily, be necessary for the court to determine whether there has been a breach of domestic law in order to determine whether a violation of the right has occurred. Whether a local authority acted lawfully, within the meaning of domestic law, is a quite separate inquiry which is extrinsic to the determination of a breach of article 2 of the First Protocol. It is possible to envisage cases in which it may become necessary to determine an alleged breach of domestic law, at the second stage of the court’s inquiry, in order to enable it to decide which authority bore the primary duty to secure the Convention right to education on the facts. Such cases are likely to be the exception rather than the rule. Moreover, in any such case, where a breach of domestic law is found to have occurred it will be relevant purely to the allocation of respective responsibility in cases potentially involving more than one public authority. It has no bearing at all on the question whether the claimant’s right to education has been violated.

The genesis of this approach to the interpretation and application of article 2 of the First Protocol in domestic law is the speech of Lord Hoffmann in A v Head Teacher and Governors of Lord Grey School [2006] 2 AC at 387 F:

“It is only if a denial of a Convention right is established that one examines domestic law in order to discover which public authority, if any, is liable under [section] 6. This is an inquiry which can sometimes give rise to difficult questions of causation and can make it necessary to ask which public authority bore the primary duty to act in accordance with the Convention.”

This passage precisely encapsulates the central issue that arises for decision in the present case. Islington’s main argument is that it cannot be held responsible for the second period of absence, and that responsibility for this lay exclusively with Hammersmith and Fulham, who are not party to the present proceedings. Building on this foundation, Mr. Rutledge QC, for Islington, submits that the second period of absence falls out of account altogether and (as I understand his argument) that the first and third periods are not sufficient on their facts to amount to a “denial” of the right to education.

I do not consider this to be the right approach. In evaluating the facts of E’s case, I propose to adopt and apply the straightforward analytical guidance provided by Lord Hoffmann in the passage set out above. So, the first question in E’s case is whether, taking the periods of school absence cumulatively, the threshold for a denial of the right to education has been crossed by the acts or omissions of either or both of the two authorities, taken together. If a breach of article 2 is found to have occurred, it will then become necessary to move to the second stage of the analysis, at which point the court must examine the actions of the relevant authorities against the framework of domestic law and practice, in order to determine the distribution of responsibility for the breach among the two authorities that are potentially liable here.

What is clear beyond doubt from a reading of the whole of Lord Hoffmann’s speech in the Lord Grey School case is that these two exercises are separate, and that they are directed to entirely different questions. A breach of domestic law (which might give rise to a public law remedy, but would not sound in damages) is not to be equated with a violation of article 2 of the First Protocol. As Lord Bingham said in the same case, there is, in the context of this particular right “no Convention guarantee of compliance with domestic law” (A v Head Teacher and Governors of Lord Grey School [2006] 2 AC at 379 C).

This approach to article 2 of the First Protocol stands in contrast to the lawfulness requirement to be found, in one form or another, in articles 8 to 12 of the Convention. The requirement of lawfulness in those articles has been held to pose two questions. The first question focuses on the compatibility of the challenged action with the requirements of domestic law. If a public authority has acted in breach of domestic law, then its actions will not be “prescribed by” or “in accordance with” the law (as the requirement is variously expressed in articles 8 to 12). If, however, the actions of the relevant public authority are found to have been compatible with the requirements of domestic law, the focus of the lawfulness inquiry under articles 8 to 12 shifts to the so-called “legality principle”, under which the court must decide whether the applicable domestic law met the Convention requirements of accessibility, foreseeability and specificity. The two leading authorities, to which I now turn, make it quite clear that none of these questions arise for decision in a case under article 2 of the First Protocol.

What then is the threshold that must be crossed before a violation of article 2 of the First Protocol is established? For present purposes, the substance of the right is contained in the first sentence of the article: “No person shall be denied the right to education”. The word “denied” is obviously significant. Clearly, at one extreme, it encompasses an active decision on the part of a public authority permanently to refuse access to education to a child who is entitled to receive it under the domestic arrangements in place in the relevant state. Thus, in Timishev v Russia (2007) 44 EHRR 37 the applicant’s children, who were of Chechen descent, were indefinitely refused admission to their local school because their father had surrendered his migrant’s card as part of a process of obtaining compensation for property he had lost in the Chechen Republic. By the time the case reached the European Court of Human Rights the Russian Federation had conceded that the denial of access to education on these grounds was unlawful in domestic law. The Court found a violation in the following terms (at paragraph 66 of its judgment):

“As noted above, the Convention and its Protocols do not tolerate a denial of the right to education. The Government confirmed that Russian law did not allow the exercise of that right by children to be made conditional on the registration of their parents’ residence. It follows that the applicant’s children were denied the right to education provided for by domestic law. Their exclusion from school was therefore incompatible with the requirements of Art, 2 of Protocol No. 1.”

There are two points to note about this passage. The first is the Court’s conclusion that an unjustified, unlawful, deliberate and permanent exclusion from school amounts to a “denial” of the right to education. That much is perhaps self-evident. However, it leaves open the question whether, and in what circumstances, a failure through neglect to discharge the state’s ordinary educational obligations can constitute a “denial” of the right. I will return to this question shortly.

The second point to note about the dispositive passage in Timishev is that the Strasbourg Court appeared (at least on a purely linguistic analysis) to equate a violation of domestic law with a violation of article 2 of the First Protocol (see, in particular, the use of the word “therefore” in the last sentence of the paragraph). If that was indeed the reasoning of the Strasbourg Court, then it differs very significantly from the approach I must take to the interpretation of the right as it is given effect in domestic law.

The question left over from this brief discussion of Timishev is whether and in what circumstances an omission is to be equated with a “denial” of the right. By the word “omission” I refer to the situation in which neglect by a local authority, in the discharge of its responsibility to make the necessary educational provision, results in an unjustifiable interruption to a child’s education. What emerges from the domestic appellate authorities is that the answer to this question is entirely fact-specific. Where a local authority fails to discharge its educational obligations to a child, a close examination of all the circumstances is necessary in order to determine whether the cumulative impact of such failures as are found to have occurred is sufficient, in the circumstances of the particular case, to cross the minimum threshold necessary to amount to a “denial” of the right. In carrying out this assessment, the court must also take into account any steps taken by the local education authority to mitigate the deleterious effects of the child’s absence from school.

In A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363 the claimant was a child who had been excluded from school following his suspected involvement in an arson attack on school premises. He and two other children were investigated by police and subsequently charged with arson. In March 2001, A was temporarily excluded from school during the police investigation. During this initial period, he was given self-assessing work at home and referred to the local education authority for the provision of education other than at school. The statutory maximum period for temporary exclusion was 45 days. This period expired on 6 June 2001 but the suspension was not rescinded at that time. From that point onwards the continuation of A’s temporary exclusion was unlawful as a matter of domestic law.

On 22 June 2001, the police informed the school that the criminal proceedings had been discontinued. The school therefore sought a meeting with the child’s parents to arrange his reintroduction to the school, but the parents failed to attend. The school then wrote to the parents to inform them that, in light of their failure to attend the meeting, the child would be permanently excluded from the school roll. This happened in October 2001. In the meantime, the local education authority took steps through its pupil referral unit (PRU) to provide alternative education for the child but his parents declined the offer. He did not attend school until he was found another place at an alternative school in January 2002. He was therefore continuously out of school from March 2001 to January 2002 (for part of which time his exclusion was unlawful as a matter of domestic law). The Court of Appeal found that the claimant’s continued exclusion after the expiry of the 45 day time limit was in breach of the applicable statutory provisions and was unjustified. On that basis, the Court of Appeal found a violation of article 2 of the First Protocol.

Giving the leading speech in the House of Lords, Lord Bingham, at paragraph 24 distilled the relevant Strasbourg caselaw into the following succinct statement of principle:

“The Strasbourg jurisprudence…makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No. 60856/00) (unreported) 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?”

This formulation has been held to be entirely consistent with the approach outlined by Lord Hoffmann in the same case (see A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33).

Lord Bingham’s choice of language in the final sentence of the passage I have set out is, in my view, highly significant. The critical question is formulated in terms which require the court to determine whether “the authorities of the state” denied a pupil access to such education as the state provides for such `a pupil. This plainly envisages a consideration of the actions of all relevant public authorities, taken together. The question, as formulated by Lord Bingham, does not require (or allow for) any distinction to be drawn between different authorities who may be potentially at fault in different ways. Nor does it include any necessity to consider whether all the relevant public authorities in any given case are parties to the proceedings. Those are questions that only arise for decision at the second stage of the analysis, if and when the court is required to consider the distribution of responsibility for the breach among a number of public authorities potentially at fault (see Lord Hoffmann’s formulation cited at paragraph 29 above).

Lord Bingham thus poses the dispositive question in the same terms as it would be posed if the case were to be considered in Strasbourg. The acts and omissions of all public authorities involved in the case must be aggregated and considered cumulatively in order to decide whether or not there has been a breach by the state of the claimant’s Convention right to education.

Mr. Rutledge QC placed particular emphasis on Lord Bingham’s characterisation of the right as intentionally weak when compared with other Convention rights. By this I take Lord Bingham to have been emphasising that the right is not absolute or non-derogable (as some Convention rights are) and that it does not include an explicit requirement for state action to be in accordance with domestic law (and thus differs from the other qualified rights in articles 8 to 12 for the reasons I have explained). Nor does it impose any requirement to meet a prescribed European common standard of education. The margin of appreciation doctrine is, in that sense, written into the right itself.

On my reading of this passage from Lord Bingham’s speech, the qualifications on the reach of the right are those that are expressly set out in his summary of its key characteristics. These features mean that the right is undoubtedly different in kind from other Convention rights, but I do not understand Lord Bingham to have been intending to imply any additional dilution to the force of the right as he thus definitively interpreted it.

There is, however, one central question which Lord Bingham did not directly seek to answer in his otherwise comprehensive formulation, preferring (for reasons he explained) to leave the answer to be divined by reference to the facts of the particular case. That issue is the threshold test for determining the circumstances in which an unjustified failure to provide access to education can be said to amount to a denial of access to the right itself. Clearly, a relatively short and unavoidable absence from school, where some adequate form of home support (even if not ideal) is provided or offered, will not in the ordinary course of events be sufficient to amount to a violation of a Convention right. Everything will depend on the context and circumstances.

A non-exhaustive list of considerations to be taken into account would clearly include the age of the child and the stage of education they have reached; their educational history; the duration of the absence of educational provision; any alternative provision attempted or made available; any special resource implications particular to the case; and any circumstances particular to the child or its family that aggravate or mitigate the impact of the child’s absence from school. Lord Bingham no doubt refrained from formulating a test for this threshold precisely because such a wide variety of circumstances may be relevant. That seems to me to be encapsulated in his statement that the test is a “highly pragmatic” one. I take this to mean that the question whether there has been a denial of the right to education is to be judicially evaluated in the round and in light of all relevant considerations.

That this was Lord Bingham’s intention is clear from the manner in which he went on to dispose of the issue in the case before the House. Notwithstanding the fact that there had been a breach of domestic law governing the maximum length of a temporary exclusion, he found that there was no breach of article 2 of the First Protocol. His analysis was based upon the fact that the relevant authorities had taken all appropriate steps to mitigate the harm to the pupil, and the parents had unreasonably refused to take advantage of the opportunities that were offered to them. Lord Bingham’s focus was, for obvious reasons, on the period between the time that the lawful temporary exclusion expired on 6 June 2001, and the date on which the claimant returned to education on 20 January 2002. As he pointed out at paragraph 25:

“The question, therefore, is whether between those dates the school denied the respondent effective access to such educational facilities as this country provides. In my opinion, the facts compel the conclusion that it did not. It invited the respondent’s parents to collect work, which they did not. It referred the respondent to the LEA’s access panel, which referred him to the pupil referral unit, an educational provider; the pupil referral unit’s offer of tuition was declined. The school arranged a meeting to discuss the respondent’s re-admission, which the respondent’s family chose not to attend. The head teacher’s reaction to this non-attendance was criticised in the courts below as over-hasty. Perhaps so. But I am not altogether surprised that she treated this unjustified non-attendance as a repudiation by the family of the pupil-school relationship. She again gave the parents contact details at the pupil referral unit. The LEA’s attempts during the autumn to secure the respondent’s readmission to the school or admission to another school were thwarted by the family’s uncertainty [about] what they wanted. As soon as they made up their minds a place (although not at the school) was promptly found. The retention of the respondent’s name on the roll of the school in July, and its removal in October, although much relied on in argument, were events unknown to the respondent and his family at the time, and had no causal effect or legal consequence. It is a matter for regret when any pupil, not least an able pupil like the respondent, loses months of schooling. But that is not a result which can, in this case, be laid at the door of the school.”

For Lord Bingham, therefore, the considerations decisive to his finding that there had been no “denial” of the right to education were each related to the relative causal relationship between the actions of the school and the response of the parents. He found, in effect, that the school (despite a technical breach of domestic law) had done all that could reasonably be required of it to mitigate the impact of the exclusion by offering alternative forms of education and agreeing in principle to re-admit the pupil after the criminal charges had been dropped. However, the actions of the parents had frustrated these attempts at every turn. Although Lord Bingham did not put it in these terms, the effect of his finding was that the parents’ intransigence was the operative cause of the overall educational deficit to which the child was subjected.

I pause to point out that the circumstances of the present case could hardly be more different. Here, the local authority simply failed on at least two (and arguably three) occasions to provide E with access to the level of mainstream education to which she was entitled. They neither provided nor offered any alternative forms of educational support. This was despite the fact that they were (or should have been) fully aware of E’s needs and circumstances.

It is clear beyond doubt that Islington was put on notice of the need for E to be in school on 12 June 2015 when they received the letter from SWA (see paragraph 7 above). Moreover, as would have been only too obvious to any official who made the necessary enquiries, the impact on E of these periods of absence was likely to be much greater than would have been the case if there had been a primary carer who was able to support her learning (or at least her reading) at home.

A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33 was a very different case which turned on the claimant’s highly exceptional special needs and the local authority’s difficulties in identifying and providing the long-term specialist help required to meet them. The claimant was an autistic child with serious learning difficulties and a severe communication disorder. He suffered from epilepsy, frequently having ten to 15 short fits a day despite medication. He was doubly incontinent, had no concept of danger and his behaviour was extremely challenging. He required constant supervision and was reliant on adults for his every need.

From 1995 the claimant attended a local day school for children with special needs. As he approached the age of 12, however, his behaviour deteriorated to the point at which the school felt it was no longer able to protect him from himself or others. In January 2002, the school asked the claimant’s parents to remove him pending an urgent medical assessment at a specialist centre. However, the assessment did not take place until September 2002. In the meantime, A was kept at home with his family who struggled to cope. The local authority provided a degree of support for the family and some limited therapy and educational sessions each week. When the medical assessment was conducted in September 2002 it recommended that A should be placed in a 24 hour residential school specifically providing for children with high levels of challenging behaviour.

The local authority approached 26 different institutions before finding a suitable one, which it agreed to fund at a cost of £226,589 per annum. The claimant took up the place when it became available in July 2003, but had by then missed 18 months of education. He brought proceedings, relying on article 2 of the First Protocol, contending that he had been denied the right to education between January 2002 and July 2003. The first instance judge gave summary judgment for the local authority and the Court of Appeal upheld his decision. The Supreme Court, by a majority, dismissed the appeal.

A majority of the Supreme Court held that article 2 of the First Protocol did not impose an absolute obligation on the state to provide for all special education needs, however exceptional (per Lord Clarke at paragraph 57; Lord Phillips at paragraph 90; Lord Brown at paragraph 128). A differently constituted majority held that it was nonetheless arguable on the facts (so as to survive a strike out application) that A had been denied his right under article 2 due to the relative inactivity of the local authority during the 18 month period that he was out of school (per Lord Phillips at paragraph 89; Lady Hale at paragraph 108 et seq; Lord Kerr at paragraph 161 et seq). However, the appeal was ultimately dismissed by a yet differently constituted majority (comprising all Supreme Court Justices except Lady Hale) for reasons unrelated to the merits. The dispositive majority held that the original claim had been brought out of time.

The ultimate outcome of the appeal turned therefore on an issue which has no bearing at all on the questions I have to decide. More generally, however, the conclusions reached by the various Supreme Court Justices concerning the application of article 2 to the facts in the Essex case have, in my view, only a tangential bearing on the issues to be decided in the present case (not least because no exceptional needs existed in E’s case, and no individualised resources argument has been advanced). However, there is an enlightening discussion on the nature of the right to education in the various judgments.

It is common ground in the judgments in Essex that a child with special educational needs would not be denied the right to education unless he was denied access to whatever educational facilities the state ordinarily provides for such pupils; and that the claimant’s needs were such that he required an expert medical assessment followed by a placement at a specialist residential school.

Lord Phillips, Lady Hale, and Lord Kerr, considered on the facts that it was at least arguable that A’s case satisfied that test. The minority on this issue (Lord Clarke and Lord Brown) took the contrary view, emphasising that in the circumstances, and given the exceptional nature of A’s educational needs, as well as the scarcity of resources appropriate to meet those needs, it was not surprising that it took the local authority some time to secure them for him. Even if the local authority could have acted with greater expedition, the claimant had ultimately been provided with high quality education at considerable public cost. When the full picture was considered, the fact that it had taken the local authority 18 months to secure a placement at a suitable school did not amount to a “denial” of the claimant’s right to education, contrary to article 2 of the First Protocol.

In developing this analysis, Lord Clarke endorsed Lord Bingham’s formulation of the right to education in the Lord Grey School case, holding that there was no need to embellish his analysis which was entirely consistent with the approach of the European Court of Human Rights, namely that any limitations on the right must not curtail it “to such an extent as to impair its very essence and deprive it of its effectiveness” (Essex, paragraph 10).

Lord Clarke dismissed the suggestion that there was any tension between the approaches of Lord Bingham and Lord Hoffmann in the Lord Grey School case, Lord Clarke said this (at paragraph 15):

“15.

As I see it, the critical point in all the speeches is that under article 2 of [the First Protocol to] the Convention, a person is not entitled to some minimum level of education judged by some objective standard and without regard to the system in the particular state. The question is that posed by Lord Bingham, namely whether the pupil was denied effective access to such educational facilities as the country provides. As Lord Hoffmann stressed, that is not the same question as the question whether the relevant authority was in breach of a duty imposed by domestic law, as for example, by failing, in breach of section 324 of the 1996 Act, to comply with educational provisions set out in a statement of special educational needs (“SSEN”).

16.

The question is then whether the pupil has been denied effective access to the system in place. That question will only be answered in the affirmative where his right to education has been so reduced as to ‘impair its very essence and deprive it of its effectiveness’.”

The core of Lord Clarke’s conclusion on the facts of the Essex case is encapsulated in paragraph 45 and the following passages, which merit citation in full:

“45.

Was A deprived of an effective education during the relevant period? I recognise that if that question is asked by reference only to what he was provided with between January 2002 and July 2003, it could be answered in the affirmative. However, as Lord Bingham observed, the correct approach is the pragmatic one adopted by the European Court. It was recognised on all sides that what A required was a satisfactory long term solution for his various problems. It was also recognised at an early stage that, in the absence of a considerable improvement in his condition and behaviour, A could not go back to LS. I agree with the judge and the Court of Appeal that any other view was unarguable.

…

50.

The fact that it was not said [on the claimant’s behalf] that there was an infringement of A’s article 2 right to a long term education immediately shows that the correct approach is to consider the problem in the context of the system available and to recognise that solutions take time and money to put in place, sometimes a considerable amount of both time and money, as here. In my opinion the same approach should be adopted to the interim measures. All the professionals were working towards the long term solution, hoping that it would be achieved sooner rather than later. Some interim measures were put in place in the period from January 2002 to July 2003. It is said with apparent force that A was deprived of any meaningful education in that period and, indeed, that A’s condition and behaviour deteriorated during that period. Moreover, the account of the facts set out above shows that, at any rate on A’s case, there were grounds for criticism of the local authority in not providing more than they did.

51.

The question is not, however, whether the local authority were at fault, but whether the limitations on A’s education impaired the very essence of his right to education and deprived his right of effectiveness or, as Lord Bingham put it, whether he was deprived of effective access to education. The answer to that question (or those questions) must have regard to the fact that the problems were correctly seen to be short term problems pending a multi-disciplinary 5-day examination of A in order to achieve a long term solution.

52.

Even taking A’s case at its highest, considerable efforts were made by LS and others to assist A in various ways. They were not limited to the somewhat ineffectual provision of two boxes of educational toys, which were described as “not acceptable education”. The local authority were faced with considerable difficulties. There was no home tutor who was available to meet A’s needs. Residential care was not available but A was referred to an occupational therapist. However the school did provide a significant number of speech therapy and activity sessions described above.

…

55.

The interim efforts made by the local authority were far from perfect and it is arguable that the local authority were both in breach of duty under domestic law in various ways and more generally open to criticism for not doing more than they did but, once one takes account of the fact that what was needed were interim measures pending a long term solution, I do not think that A can succeed at trial. I agree with the Court of Appeal (and with the judge) that, as Sedley LJ put it at para 12, it is not possible “to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it.”

Lord Clarke’s approach was thus a finely calibrated analysis of the nature of A’s exceptional educational needs, firmly rooted in the facts of the case. The axiom of his reasoning was the acceptance on all sides that in A’s particular case it was not his immediate short-term needs that were the governing priority but the search for a durable solution to his long-term needs. It was against that central purpose that the actions of the authority fell to be judged. Bearing always in mind that Lord Clarke was in a minority on this issue, it is nonetheless relevant to note the reasons he reached the conclusion that he did. In Lord Clarke’s view, it was undeniable that a long-term solution was ultimately found, at considerable cost, and that when the situation was viewed in the round, the governing educational priority had been met.

On this issue, the majority concluded that the local authority was arguably responsible for a breach of A’s Convention right to education. This was due to the arguable defects in the local authority’s discharge of its educational responsibilities during the interim 18 month period. Although they dissented on this question, I do not understand the minority conclusions reached by Lord Clarke and Lord Brown to have treated the arguable inadequacy of the interim solutions in A’s case as irrelevant. They merely concluded that when viewed through the prism of A’s priority educational need (namely the need to be assessed with a view to finding a long-term solution), it could not be said that the local authority had been responsible for a “denial” of the essence of the right to education judged, as it must be, by reference to A’s individual educational needs.

Lord Phillips disagreed on the arguability question. Nonetheless, at paragraph 75 of his judgment, he expressed agreement with the proposition that the resources available to provide for exceptional educational needs were a relevant consideration in determining whether article 2 had been violated in such a case. Having summarised a number of sources relied on by the claimant to support the contrary proposition, he dismissed the argument in these terms:

“75.

When these passages are read in their context they do not support the proposition that article 2 of the First Protocol imposes on contracting states a positive obligation to provide education that caters for the special needs of the small, if significant, portion of the population which is unable to profit from mainstream education. On the contrary the authorities assume, correctly, that all contracting states have a system of education and limit the positive obligation imposed by article 2 to regulating education in such a way as to give access without discrimination to that system.”

In support of the proposition that article 2 does not guarantee that a state must have the facilities to meet all special educational needs, Lord Phillips (at paragraph 79) had recourse to the Travaux Preparatoires to the First Protocol. These record the following collective understanding, reached during the negotiations:

“While education is provided by the state for children, as a matter of course, in all member states, it is not possible for them to give an unlimited guarantee to provide education, as that might be construed to apply to illiterate adults for whom no facilities exist, or to types or standards of education which the state cannot furnish for one reason or another.”

From this extract Lord Phillips deduced the following proposition:

“79

…Contracting states that provide facilities for the education of adult illiterates are obliged by article 2 to ensure that adult illiterates have access to those facilities. Those states that do not have such facilities are not required by article 2 to establish them.”

Thus, Essex was a case which turned on the availability of exceptional educational provision, voluntarily made by a state for special needs students, and the relevance of the resources available to meet those needs within the national framework and within a reasonable time. That is why I said earlier that the Essex has only a tangential bearing on the present case. E was not a child with exceptional educational needs that cried out for a long-term solution. She was a child with an urgent, and short-term, need for access to ordinary mainstream education, and above all for continuity in her education, in light of the turbulent circumstances of her home life. Her case cried out for prompt liaison and co-ordination between the relevant departments of both authorities. This urgent need was not met and, as a result, she fell out of education.

E’s case is thus, in effect, the inverse of A’s case in Essex. Her need was consistency and continuity in the short to medium term. It is therefore against that central educational objective that the question must be asked and answered whether she had sufficient access to the regular educational facilities that the state ordinarily provides for such as pupil (or whether, conversely, the intermittent failures to afford her access to education, considered cumulatively, amounted to a denial of the essence of her right). To formulate the question in plain language: Did the public authorities of the state provide E with sufficiently effective access to regular mainstream education between June 2015 and June 2016?

Lord Brown, in the majority as regards the test to be applied under article 2, held at paragraph 127 of his judgment that a standard that would require an educational authority in every case to prove (a) that it has done all that could reasonably be required of it to justify the full extent of any absence from school and (b) that it had done all it could to mitigate any absence by implementing alternative educational facilities in the meantime, would put the threshold for establishing a breach of article 2 far too low. Instead, he considered the approach of Lord Kerr, at paragraph 161, to “come much closer to identifying what could be regarded as a breach of article 2”. Among the examples accepted by Lord Brown as arguably crossing the threshold for a violation of article 2 were (a) the situation in which an authority “takes no action to supply any alternative” to schooling which has been discontinued; or (b) “if [the authority] knows that a pupil is not receiving education and engages in a completely ineffectual attempt to provide it”.

Lord Brown’s approach in this passage provides a direct and affirmative answer to the question whether unjustified neglect on the part of an education authority is capable of amounting to a “denial” of the essence of the right to education. As he explains, certain categories of omission may arguably raise issues under article 2, depending on a pragmatic and fact-specific evaluation of all relevant circumstances. I should add that the two specific categories he cites are, to my mind, apt in principle to describe the situation that arose in the present case.

In order to complete the picture, I set out in full the passage from paragraph 161 of Lord Kerr’s judgment (part of the majority for this purpose) with which Lord Brown expressed his agreement:

“I consider that a denial of education under the article can arise in a variety of ways. Obviously, a calculated refusal to allow a pupil access to any form of even basic education will be in violation of the right. But a failure to take steps to provide education when the state authority responsible for providing it is aware of the absence of the pupil from any form of education could in certain circumstances give rise to a breach of the right. If, for instance, a local education authority knows that a child has been asked by a school not to attend that school; and if the authority is responsible for the provision of education to that child; and if it takes no action to supply any alternative to what has been previously provided by the school, it is at least arguable that it is in breach of its duty under article 2 of the First Protocol. I would go further. I believe it also to be at least arguable that an authority with the responsibility for providing education, if it knows that a pupil is not receiving it and engages in a completely ineffectual attempt to provide it, is in breach of the provision.”

I can find nothing in the other speeches in Essex that contradicts this clear statement of principle, and, as I have already pointed out, Lord Brown, despite disagreeing on the arguability question, expressly endorsed it. Whether or not I am strictly bound by Lord Kerr’s approach, I consider it to be the right one, and propose to apply it.

Islington’s handling of E’s case resulted in at least two (and arguably all three) of the lengthy periods during which she fell out of education. Applying the approach adopted by Lord Kerr, it is in my view clear that E has at least an arguable case that her right under article 2 was violated. Whether or not it was in fact violated will turn on a closer examination of the facts in order to determine, in a pragmatic fashion, whether the multiple failures to place E promptly in an appropriate mainstream school amounted to a denial of the “essence” of her right.

I have identified, in paragraph 46 above, the principal considerations that I consider to be relevant to this question. It is necessary to begin by examining the length of each period of absence. E initially fell out of education when the family fled to Islington on 4 June 2015, part of the way through a school week. It was not until the Friday of the following week (12 June 2015) that Islington was formally made aware, through the letter I have cited at paragraph 7 above, that E was a child within their educational area with priority needs. Whilst Islington cannot bear responsibility for any failure to take steps to find a place for E prior to this time, the period of absence between 4 and 12 June has some relevance insofar as it was the background against which the need to take prompt action following the receipt of the letter ought to have been apparent.

In all, the first period of absence lasted from 1 June 2015 to 31 August 2015. This consisted of six weeks of term time and six weeks of school holiday. It thus calls into question how school holiday periods are to be evaluated in the context of a right to education. As a starting point, it seems to me to be quite clear that considerably less weight should be attached to a period when a pupil would not, in the ordinary course of events, be in school. A proposition that periods of absence occurring entirely during school holidays could cumulatively amount to a breach of the right to education would in my view be unarguable. That would be the opposite of Lord Bingham’s pragmatic approach.

On the other hand, school holidays are not necessarily to be left out of account altogether. Children of primary school age are often given some basic reading and project work to do in the school holidays and, with appropriate external support, this could have afforded E with some stimulating educational activity. Within the context of a stable education, school holiday work can make some contribution to a child’s education.

Viewing the matter in the round, it seems to me that term time and holiday time should be calculated separately and weighted quite differently in the evaluation of whether a child has been denied the right to education. The focus must be on missed weeks of education during the school term. Additional weeks of school holiday, during which a child is out of education and not provided with any purposeful homework to do, will be relevant only as part of the overall background.

The second period of absence, whilst the family were housed out of borough in Hammersmith and Fulham, lasted for seven weeks of term time and two weeks of school holidays. The third period, after the family had been returned to Islington, lasted seven weeks of term time plus one week of half term holidays. In sum, therefore, E was out of education for 20 term-time weeks (and nine weeks of school holiday) between June 2015 and June 2016. There were 39 term time weeks in total in the relevant school year. Allowing for the initial week in June for which responsibility cannot be laid at Islington’s door, E missed approximately 50% of the term time schooling that should have been made available to her during the year (and, for what it is worth, had no holiday education for nine out of 13 school holiday weeks). This was, on any view, a significant disruption to her education during that year.

Before examining the particular impact on E, I refer briefly to certain background evidence before me concerning the general impact of school absences and multiple educational transfers on educational performance at primary and secondary school level. The general and unsurprising correlation between school absences and impaired attainment is recognised in the Department for Education report, “The link between absence and attainment at [Key stage 2] and [Key stage 3]”. This is to be read alongside the findings of the RSA Action and Research Centre report, “Between the cracks: exploring in-year admissions in schools in England”. The latter report analysed information from the National Pupil Database and found that:

“[T]he attainment of pupils who make in-year moves is markedly lower than their peers, and lower still among pupils who make multiple in-year moves. Only 27% of pupils who move schools three times or more during their secondary school career achieved 5 A* to C grade GCSEs compared to the national average of 60%.”

This is the national picture against which the present facts fall to be evaluated.

The evidence shows, and I find that, the impact of these periods of absence was particularly difficult for E. Her solicitor has made two statements, the second of which addresses this issue directly and in detail. That evidence is, in my view, relevant and admissible. I reject Mr. Rutledge QC’s submission that it amounts to inadmissible opinion or quasi-expert evidence. Whilst there are some strands of opinion in the statement, it is primarily evidence of fact, based upon the solicitor’s first-hand knowledge of the family’s circumstances.

I accept the central thrust of that evidence, namely that missing lengthy periods of schooling is of greater significance to E than would be the case with a child of the same age who did not suffer the same disadvantages. I have already outlined the particular problems E faced as a result of her mother’s disabilities. In addition, it can reasonably be inferred that the impact on her psychological well-being of having had four changes of school in a year was, in itself, likely to have adversely affected her educational attainment. In E’s case, however, these repeated absences also deprived her of the only opportunity ordinarily available to her to interact with other children and with hearing adults who could help with the development of her speech, reading and learning generally and with the realisation of her potential. These periods of absence thus acquire a special significance in E’s case that they would not necessarily have in the case of a child who did not suffer from the same underlying disadvantages.

Turning to the other side of the equation, Islington have not offered any fact-specific explanation for the periods during which E was out of education. Nor have they made any attempt to advance an individualised resources argument, beyond a generalised plea that, as a local authority, they have limited public money to spend and many cases to consider. Put in that way, a resources argument cannot carry any significant weight in this particular context, since the test under article 2 is whether the child has been denied access to the educational facilities that the state ordinarily provides. All local education authorities are statutorily required by section 13(1) of the Education Act 1996 “to secure that efficient secondary education is available to meet the needs of the population of their area”. Against this statutory background a generalised argument that a local authority’s resources are over-stretched cannot succeed. The authority is bound to ensure that it has sufficient resources to cater for the mainstream education of all school-age children in the borough. This is not a case, like Essex, in which especially resource-intensive facilities are required for a child with uniquely challenging educational needs. It is not even a case in which mildly asymmetrical allocation of resources was called for. All that was required was the reasonable performance by the local authority of its statutory duty.

In his initial written and oral submissions Mr. Rutledge QC argued that, as a matter of causation, responsibility lay on C under section 7 of the Education Act 1996, rather than on Islington, to ensure that E was in school. During the course of oral argument, however, he retreated from this position, conceding that the local authority’s obligations to E would bite whenever they became aware that there was a child of compulsory school age in their area who was not receiving education (whether that notification came directly from the parent or from a third party). That concession seemed an obvious one in the circumstances, particularly where C was suffering from significant communication difficulties and was fleeing from domestic violence with three young children to look after.

I can dispose of this point shortly. On 12 June 2015 SWA put Islington on notice, in unambiguous and emphatic terms, of E’s needs and the pressing nature of her situation. I have already indicated that I do not think it would be right to hold Islington liable for the week immediately preceding this notification, when they had not yet received particularised information about E’s educational situation (see paragraph 73 above). It follows that if the question of just satisfaction arises in this case, E will not be entitled to any remedy against Islington for the period prior to the receipt of that letter. In these circumstances, the first point falls away.

Mr. Rutledge QC’s fall-back position was that responsibility for the second period of absence lies exclusively with Hammersmith and Fulham and not with Islington. This became the central thrust of the argument made in his closing written submission.

This second causation point is considerably more complex than the first, since it relates to the distribution of responsibility between two public authorities, one of which is a party to the proceedings and one of which is not. For the reasons outlined by Lord Hoffmann (see paragraph 29 above) this is an issue that must be considered in the second stage of the analysis, when questions of causation and relative responsibility fall to be answered. As a precondition to this analysis, it must first be determined whether the aggregate of the acts and omissions of the two relevant public authorities, taken together, resulted in a denial of E’s right to education.

My conclusion is that they did. I consider that that the failure to provide E with access to mainstream education (of the kind ordinarily provided by the state) for 50% of the school year amounted in her particular case to a denial of the essence of her right to education for that year. I should emphasise that this is not to be taken as any kind of rule of thumb. E’s circumstances were grave and exceptional and it is with all of those circumstances in mind that I have come to this conclusion. I do not have to decide, one way or the other, whether the same result would follow in a case in which similar periods of absence were suffered by a child that had a settled family background and a primary caring parent who did not suffer from serious disabilities (or where the local authority had offered or attempted to make alternative provision) and I do not do so. But when all the facts of the present case are taken into account, I am satisfied that E’s right to education during the year in question was effectively denied to her. Earlier in this judgment I phrased the decisive question in this way: Did the public authorities of the state provide E with sufficiently effective access to regular mainstream education between June 2015 and June 2016? In my opinion, the facts self-evidently compel a negative answer to that question.

The second stage of the analysis identified by Lord Hoffmann requires the court to determine which of these two public authorities bore the primary duty to act in accordance with the Convention right to education. The answer to this question depends in the first instance upon an analysis of domestic law and practice. This is not, I remind myself, for the purposes of determining whether there has been a breach of article 2 (that issue having already been decided). It is for the sole purpose of determining whether, and to what extent, the only public authority that is currently before the Court bore primary responsibility for the breach.

By contrast with the way in which the matter would be approached in Strasbourg, this is not a question which mandates a purely binary response. Once it is established, as it has been, that E’s right to education was violated by the state, the inquiry conducted by the Strasbourg Court would and need go no further. The position is otherwise in domestic litigation where, in some cases, it may become necessary to attribute liability between different public authorities. Moreover, in such cases, if the court concludes under section 8 of the Human Rights Act 1998 that an award of damages is necessary to afford just satisfaction to the claimant, the damages award may need to be apportioned between more than one public authority, depending on the circumstances. If all the authorities potentially implicated in the breach are not before the court, a further tier of complexity is added to the problem.

It cannot sensibly be disputed that Islington was the authority with primary responsibility for guaranteeing E’s right to education during the first and third of the periods of absence outlined above. To that extent, liability is established in respect of Islington, in respect of those two periods. The central issue of contention arises with regard to the second period of absence, which occurred whilst E and her family were housed in Hammersmith and Fulham. As to this period, it will be necessary to decide which of the two authorities is to be regarded as the public authority that “bore the primary duty to act in accordance with the Convention” during the relevant time.

If the court were to conclude, in relation to the second period of school absence, that it was Hammersmith and Fulham that bore the primary duty to act in accordance with the Convention, it would become necessary to conduct an apportionment of relative responsibility for the overall violation. To be strictly accurate, since Hammersmith and Fulham are not party to these proceedings, the question for the court in that situation would be whether and to what extent liability for the overall composite breach (and any compensation the court may order as just satisfaction) can properly be attributed to the contribution made by the acts and omissions of Islington. It would of course be wrong for the court to allocate any proportion of collective responsibility directly to Hammersmith and Fulham since (not being a party to the litigation) that authority has had no opportunity to file evidence or make submissions.

As I have foreshadowed earlier in this judgment, Mr. Rutledge QC contends for an entirely different approach. He submits that it is only if Islington is found responsible for the second period of absence that this period falls to be taken into consideration in determining whether there has been a violation of article 2 in the first place. I will address the reasoning that underlies his argument in more detail below, but the essence of his submission is that under the relevant statutory scheme, responsibility for E’s education during the second period of absence lay exclusively with Hammersmith and Fulham, and that it therefore falls out of account in litigation to which that authority is not a party.

It will be apparent from what I have already said (at paragraphs 29 to 32 above) that I consider this to be approaching the problem from the wrong end of the telescope and to be inconsistent with the clear guidance given by Lord Hoffman and Lord Bingham in the Lord Grey School case (as approved in Essex). Where multiple public authorities are potentially at fault, it is critical to ask and answer the questions in the right order. I would add, however, that even if the approach advocated by Mr. Rutledge QC was the right one, the result here would be the same in light of the conclusion I have reached in paragraph 140 below. On the present facts, both routes lead to the same result.

In seeking to untangle these potentially difficult issues of relative causation, it will be necessary to set out, in brief outline, a summary of the statutory and non-statutory duties on local authorities that are relevant to the case of a homeless child who is at risk of missing education as a result of being moved from one local authority area to another for the purpose of providing her with temporary accommodation. However, before embarking on this exercise, I think is helpful to return, albeit briefly, to first principles. In the Lord Grey School case, Lord Bingham summarised the distribution of responsibility for providing state education as follows:

“14.

For the last 60 years the responsibility for ensuring the secondary education of children in this country has rested on what Lord Wilberforce called “a fourfold foundation”: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1046; and see p. 1063. While the legislation and much else has changed, that fourfold foundation has so far survived.

15.

The first of the four elements identified in the Education Act 1996, which governs this case, is the parents of a child of compulsory school age. By section 7 the parents are under a duty to cause every such child to receive efficient and suitable full-time education “either by regular attendance at school or otherwise”. The serious character of this duty is reflected in the criminal penalty attaching to unjustified breach of it. The second element is the Secretary of State, charged by section 10 of the Act to promote the education of the people of England and Wales. The third element is the LEA, 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 area. The LEA is also required, 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.

A school established and maintained by the LEA which is specially organised to provide education for such is known as a pupil referral unit: section 19(2). The fourth element consists of the maintained schools themselves.”

Taking each of those four elements in turn, I accept that it can be said that C failed to discharge her duty under section 7 of the 1996 Act, because she did not have the personal resources necessary to ensure that E was admitted promptly to a school in Islington following her initial move into the borough. The same is true of the two subsequent periods. It would in my view be a harsh conclusion to attribute any personal fault to C in the circumstances. However, it is unnecessary to embark on that inquiry here, because her technical breach of section 7 is entirely irrelevant to the outcome of this case. It is clear that the SWA letter of 15 June 2015 was sufficient to trigger Islington’s duty under section 13 of the Act, and ultimately, we are only concerned with the period after that duty had been triggered.

If the case were to be considered in Strasbourg, the Secretary of State, as the minister ultimately responsible for representing the interests of the Government, would effectively stand in the shoes of the two local authorities. However, she is not the appropriate defendant in the present proceedings in which no fault is said to be attributable to her department or to the discharge of her obligations under section 10 of the 1996 Act. Nor is there any suggestion of fault on the part of either of the two schools involved. It follows that the public authority with the primary duty to act in accordance with the Convention during the second period of school absence must be one (or possibly both) of the two local education authorities.

It is next necessary to explore the statutory and non-statutory arrangements established in domestic law and practice that may have a bearing upon (a) the duties of a local education authority to ensure that it secures education to children that are missing from school; and (b) the respective responsibilities that arise where a child of school age who is homeless is transferred from one borough to another in the discharge of the first borough’s homelessness obligations.

At this stage of the analysis it becomes particularly important for the court to remind itself once again that this examination of domestic law and practice is not being conducted for the purpose of determining whether there has been a breach of domestic law by one or other authority. Whether or not there has been a breach of domestic law is not (at least in the great majority of cases) a relevant question, and I have not in this judgment made any such finding. The purpose of the examination is limited to ascertaining whether the domestic framework sheds light on which of the two authorities bore the primary duty to secure E’s Convention right to education during the early weeks in Hammersmith and Fulham

Under section 436A of the Education Act 1996, a local authority has a duty to “make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but (a) are not registered pupils at a school and (b) are not receiving suitable education otherwise than at a school”. The statutory duty lies on the local authority as a whole and not on any particular department.

It follows that during the first and third periods of E’s school absence, Islington was under a statutory duty to take steps to identify children missing from education in the borough. During E’s period of school absence in Hammersmith and Fulham, both authorities remained subject to the same overall statutory duty. Whilst, in a conventional public law challenge, the present facts might raise questions as to the performance of the relevant statutory duty by each of the two authorities, section 436A does not in my view assist in deciding which of them bore the primary duty for guaranteeing E’s Convention right to education during the period of her temporary accommodation in Hammersmith and Fulham.

The Department for Education’s September 2016 statutory guidance Children Missing Education is more helpful. It provides a roadmap for the performance of the duty imposed by section 436A. Whilst the latest version of the guidance was not in force during the period with which we are concerned, the principles it outlines are no more than a guide to reasonable administrative practice. They are in my view relevant to the approach which is to be taken when determining where primary responsibility lies for the breach in this case, even though it would be inappropriate and unnecessary to determine whether the statutory duty in section 436A was adequately complied with on the facts. Islington’s case suffers no prejudice from a consideration of statutory guidance which came into force after the events in question, since the court’s recourse to the guidance is solely for the purpose of better understanding current standards of good practice in out of borough cases, and not for the purpose of determining the lawfulness of Islington’s conduct.

The guidance emphasises the need for “[e]ffective information sharing between parents, schools and local authorities” as being “critical to ensuring that all children of compulsory school age are safe and receiving suitable education” (paragraph 3). It stresses that local authorities must have “robust policies and procedures” in place to enable them to discharge their statutory duty to provide education, including tracking and inquiry systems (paragraph 6). Where, as here, more than one local education authority is involved, the guidance reflects the need to have “arrangements for joint working and information-sharing with other local authorities and agencies” (paragraph 9). It specifically emphasises the need for local authorities to have information-sharing arrangements for families “moving between local authority areas” (paragraphs 45 to 51).

It is immediately apparent that the implementation of the domestic legislative scheme does not necessarily contemplate a rigid demarcation of responsibilities in multi-authority cases involving out of borough placements. Instead, it points to the need for continuing communication between education authorities so that the statutory duty to ensure that a school-age child is being provided with adequate education is discharged by one authority or the other. A paradigm case for the application of this principle must be the situation in which homeless families with school-age children are moved out of borough for the purposes of providing temporary housing.

I was referred during the course of argument to Islington’s own policy guidance on Children Not Receiving a Suitable Education: Policies and Procedures (last updated in April 2011). This sets out admirably detailed procedures which, if followed, ought to have prevented the sequence of events that occurred in the present case. Thus, for example, at paragraph 5.3 the guidance states that Islington has established social workers in all schools in the borough, to “assist with cross-borough negotiations with other local authorities where necessary”. If the guidelines had been implemented in the present case, it would presumably have fallen to the nominated social worker at St. Mary’s School in Islington to assist negotiations with the education department at Hammersmith and Fulham, once it became clear that E was to be transferred out of borough and was therefore at serious and imminent risk of falling out of education. As a matter of fact, there is no evidence that this occurred, but that is not the point. The recognition by Islington of the need for cross-borough negotiations in multi-authority cases, presupposes some level of continuing obligation on the home borough.

Appendix 3 to Islington’s guidance consists of a standard letter to be sent by Islington LEA when a child has been temporarily housed out of borough. It is intended for use where Islington has information to suggest that the child is not receiving suitable education in the receiving borough. The letter is addressed to the education department of the borough in which the child has been temporarily housed and contains the following passages:

“As you will be aware the Home Authority has responsibility for securing educational provision for any child resident in its borough.

I have recently received notification that [insert child’s name] formally resident in the London Borough of Islington, moved to [insert borough] on [insert date]. As far as I am aware, [insert child’s name] is neither on the roll of a school/PRU nor receiving full-time education.

I am therefore writing to you to notify you that as [insert child’s name] is no longer resident in Islington, I am officially handing over responsibility to [insert borough] for securing [his/her] education provision.

I would appreciate confirmation that you have registered [insert child’s name] as missing from education and are taking steps to secure [his/her] education provision as a matter of urgency.”

This template letter reflects what must have been Islington’s understanding of the distribution of educational responsibilities in such cases. It contemplates a formal handover of responsibility to the receiving borough’s education authority as a necessary step for Islington to divest itself of its own educational obligations towards the child. There is no evidence before me to suggest that any such letter was sent in the present case, nor any evidence to explain or contextualise this. Again, it is unnecessary for me to decide whether there was here a breach by Islington of its own published policy. For the purposes of the present inquiry the significance of the letter lies in the fact that it reflects Islington’s understanding of the legal position, and its standard practice, in such cases.

I turn now to the corresponding provisions relevant to the homelessness duties imposed on local authorities. Under section 208(2) of the Housing Act 1996 where a “local housing authority” has been unable to comply with its obligation under section 208(1) to secure accommodation for a homeless person in its own district, and has ensured instead that accommodation is made available outside its own district, it must “give notice to the local housing authority in whose district the accommodation is situated”. The notice requirements are set out in section 208(3) and include “the number and description of other persons who normally reside with [the applicant]”. This is the statutory duty described in paragraphs 14 to 16 above. I entirely accept that Islington discharged this duty by virtue of the notice it sent to Hammersmith and Fulham on 5 November 2015. I will revert to the significance of this in some detail when I come to consider Islington’s central submission on causation.

In determining whether accommodation is suitable for a homeless person (for the purposes of section 206 of the Housing Act 1996) a local authority is required, by virtue of article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012, to take into account the location of the accommodation, including the significance of any disruption which would be caused to the education of any member of the household. This obligation is consistent with the proposition that decision-makers in the sending authority are required to think ahead, to take account of the need to minimise disruption to a child’s education by reason of an out of borough transfer, and to address their minds to the educational consequences which will follow the transfer. They are also required to record (and provide evidence of) the factors they have taken into account, and the process by which their decision was reached: Nzolameso v Westminster City Council (Secretary of State for Communities and Local Government and another intervening) [2015] UKSC 22; [2105] PTSR 549. All of this suggests to my mind that the home authority, which has, up until the moment of transfer, borne the primary duty for the discharge of a child’s Convention right to education, must retain at least some continuing responsibilities for the child’s education, even after the temporary transfer has been effected.

Chapter 4 of the Homelessness Code of Guidance for Local Authorities, published in 2006 but still currently in force, emphasises (at paragraph 4.16) the need to ensure continuity of appropriate educational provision when placing homeless families in temporary accommodation “within their district or outside”. It goes on to recommend to local authority housing departments that when placing children in temporary accommodation out of borough they should liaise directly with the education department in the area in which the family is to be temporarily housed. The import of this passage seems to me to be very clear:

“Housing authorities will need to liaise and work collaboratively with the relevant service providers to ensure that appropriate arrangements are put in place and monitored. When households are placed in temporary accommodation, it is recommended that housing authorities offer to liaise with the relevant health, education and social services departments in the areas in which the households are temporarily housed. Liaison will be particularly important in cases where households have to be accommodated in the district of another housing authority.”

This amounts to an unambiguous and strongly worded recommendation to the housing department of a sending authority which is contemplating the temporary out of borough transfer of a school-age homeless child, to liaise directly and work collaboratively with the education department of the receiving borough, in order to ensure that appropriate educational arrangements are put in place and monitored.

Mr. Rutledge QC submits, and I accept, that it is not open to this court, in these proceedings, to pass judgment on any possible failures in the discharge by Islington of its homelessness obligations. No such issue is raised in the claimants originating application or grounds, and the question of compliance with the relevant statutory obligation is not, in any event, an issue I have to decide. It does not follow, however, that the homelessness regime has no bearing on the question as to which borough bore the primary duty for securing E’s Convention right to education in the period immediately after her temporary transfer to Hammersmith and Fulham. The guidance set out above is of a piece with the education scheme applicable in out of borough cases, and emphasises the continuing duty of the sending authority to ensure, through appropriate liaison with the receiving borough, that a child does not fall out of education as a result of the transfer.

Underpinning all of these obligations is the statutory duty imposed by section 11 (2) of the Children Act 2004. This provides that relevant public authorities must make arrangements for ensuring that “(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in discharge of their functions are provided having regard to that need”. Section 11(2) applied to all functions performed by both boroughs’ housing and education departments.

In the present context, the focus must be on section 11(2)(b) since that is the provision directly applicable to a situation in which one local authority delegates the discharge of its statutory obligations to another local authority. This provision makes clear that in such circumstances the primary authority retains a continuing obligation to ensure that a child’s welfare is safeguarded at the time (and throughout the period during which) its powers are delegated. In the present context, this translates into an obligation on the sending borough to ensure that a child is not allowed to fall out of education as a result of the transfer. That would plainly be inconsistent with the need to safeguard a child’s educational welfare (within the meaning of section 11(2)(a)).

The application of section 11 to the decision-making of public authorities in individual cases was considered by the Supreme Court in Nzolamesco. Giving the single judgment of a unanimous Court, Lady Hale, at paragraph 24, observed that “section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case”. Lady Hale’s conclusion in relation to section 11(2)(a) is of a piece with the express statutory language of section 11(2)(b) which clearly contemplates individual decisions to delegate a relevant public authority’s function in a particular case.

I digress (only slightly) at this point to consider the nature and extent of the obligations that rest on a local authority placing a homeless child out of borough to record and provide evidence of its decision-making processes, of the factors it has taken into account, and of the reasons for its conclusions. This excursus is solely for the purpose of ascertaining whether and to what extent certain duties remain with the home authority in a case involving such an out of borough placement.

Baroness Hale addressed the question directly in Nzolameso (at paragraphs 31 to 35). She summarised and subsequently endorsed the submissions of the Secretary of State concerning the analytical and reasoning duties that sit with the sending authority in an out of borough homelessness case, when the authority comes to determine how far from the home borough a family with school-age children should reasonably be housed. The thrust of the Secretary of State’s submission was that the sending authority must address its mind to, amongst other matters, the need to minimise educational disruption, and must record its reasoning, and be in a position to provide evidence of its contemporary reasoning in court, if called upon to do so. It must be in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which it reached its decision. A court should not assume in favour of a local authority that it has performed its functions in a conscientious and lawful manner. Judicial scrutiny requires an objective and evidence-based analysis of the decision-making process (see paragraph 36).

How is a decision that is concerned with reasoning and record-keeping duties in a housing context relevant to the question whether Islington was the authority that bore primary responsibility for compliance with E’s Convention right to education whilst she was temporarily housed in Hammersmith and Fulham? The short answer is that Nzolamesco is concerned with the considerations (including educational considerations) that must be addressed by a local authority before it makes a temporary transfer out of borough. The Secretary of State’s submission in Nzolamesco identified a number of obligations and sources of guidance that the sending authority was bound to take into account. In Nzolamesco these duties were held to have the consequences identified in the decision as regards the reasoning and record-keeping obligations of the sending authority.

However, in addition to the considerations listed by the Secretary of State in Nzolamesco there is also the section 11 statutory duty. Section 11 is not limited to the imposition of an obligation on the sending authority to have regard to the need to safeguard and promote the welfare of children in making its transfer decision. That duty (which overlaps to some extent with the relevant guidance identified in Nzolamesco) is to be found in section 11(2)(a). But section 11(2)(b) imposes a separate and quite specific duty to ensure that when delegating any of its functions to another authority, the sending authority has properly taken into account the need to ensure that the educational welfare of a child will be safeguarded by the receiving authority. In other words, the sending authority has a continuing duty to satisfy itself, throughout the period of the temporary placement, that the receiving authority has taken (and will continue to take) the necessary steps to safeguard the child’s educational welfare. The statutory duty under section 11(2)(b) is part and parcel of the considerations that must be taken into account by the sending authority before it makes a temporary out of borough transfer. It thus comes into the same category as the series of considerations identified by the Secretary of State in Nzolamesco, and falls to be considered by the local authority alongside them.

As I have said, it follows from the terms of section 11(2)(b) that where an authority’s housing department is considering whether to transfer a school-age child out of borough, the authority must take all necessary steps to satisfy itself that the receiving authority has satisfactory arrangements in place to safeguard the child’s educational welfare. If the principles laid down in Nzolamesco fall to be applied to this statutory duty, as I find they do, then the sending authority would also need to put itself in a position to demonstrate objectively, and by reference to contemporary reasoning and records, how and why it came to the conclusion (if it did) that the delegation of its housing obligations would not imperil the child’s educational welfare. In practice, this is something that the sending authority could only be able to do if they had liaised with the education department of the receiving authority and satisfied themselves that suitable arrangements were or would be in place.

In my opinion, the principles laid down in Nzolameso apply with formidable analogical force to the statutory duty arising under section 11(2)(b). I am therefore satisfied that the reasoning and record-keeping obligations identified in Nzolameso apply equally to the duty imposed by section 11(2)(b) in any case in which a local authority proposes to authorise the temporary out of borough transfer of a homeless school-age child.

Applying the approach laid down by Baroness Hale in Nzolameso to the statutory duty arising under section 11(2)(b) of the 2004 Act, the sending authority must be able to demonstrate how and why it took or failed to take the steps that it did. It must also be in a position to provide objective evidence showing how it came to the conclusion (if it did) that those steps were consistent with its statutory duty under section 11(2)(b).

The upshot of this analysis is that any local authority contemplating the transfer of a school-age homeless child into temporary accommodation out of borough is under a Nzolameso duty to make contemporary records of its decision-making and its reasons, capable of explaining clearly how it evaluated the likely impact of the transfer on the educational welfare of the child, in accordance with its primary obligation under section 11(2)(a). In addition, however, by virtue of section 11(2)(b), it must be able to demonstrate, by reference to written contemporaneous records, the specific process of reasoning by which it reached the decision (if it did) that the authority to which it was delegating its housing obligations would secure the child’s educational welfare, either through making appropriate arrangements for school admission, or by making available alternative educational provision under section 19 of the Education Act 1996.

All of this has obvious implications for the existence of a legal duty on the sending authority to liaise with the education department of the receiving authority. In consequence, it has a direct bearing on the question whether, in the absence of any such liaison, Islington remained the authority that bore the primary responsibility for securing E’s Convention right to education. Putting the point at its very lowest, the fact that the sending authority is under a duty to reason and properly record its decision-making process under section 11(2)(b) provides support for the proposition that its educational obligations are not automatically terminated by the mere fact of a temporary transfer.

If the sending authority is required to record the detail of its reasoning concerning the educational welfare of the child during the period of temporary transfer, then it must, it seems to me, be under a corollary duty to liaise with the receiving borough’s education department in order to satisfy itself (and, if necessary, the court) that it has adequately performed its duty under section 11(2)(b). To do this, it must be able to show it has taken steps to ensure that adequate educational arrangements have been or would be put in place by the receiving authority for the duration of the transfer. Absent evidence of such liaison, the sending authority could not be in a position to show that it properly considered the impact of the transfer on the child’s educational welfare, and reasonably satisfied itself that this would be safeguarded by the receiving authority. If there has been no adequate communication between the two authorities, then the sending authority cannot know (or be in a position to demonstrate that it has even considered) whether or not the receiving authority has put appropriate arrangements in place, or has plans to do so. Thus, one of the legal obligations binding on an authority proposing to transfer a homeless school-age child out of borough for the purposes of providing temporary accommodation is the obligation to liaise adequately with the education department of the receiving borough, for the purpose of ensuring that the receiving borough has put (or will put) working arrangements in place to maintain educational continuity for the child; coupled with a legal obligation to make adequate records of the steps it has taken in this regard, and of the process of reasoning by which it has concluded that educational continuity would be maintained.

Applying these principles to the facts of the present case, it follows that Islington was under the Nzolameso procedural obligations when it made the decision to transfer this family into temporary accommodation in Hammersmith and Fulham; and under a substantive section 11(2)(b) duty to ensure that Hammersmith and Fulham would safeguard E’s educational welfare. It is unnecessary for me to determine whether Islington discharged the duty to record its reasoning under section 11(2)(b), or whether the relevant Islington employees even addressed their minds at any stage to this statutory obligation. All that can or need be said is that there is no evidence before me to suggest that this happened.

Islington’s case, put simply, is that the duty imposed by section 436A of the Education Act 1996 only requires a local authority to “make arrangements” in respect of children “in their area”. The moment a child is moved out of borough, therefore, the sending borough’s educational obligations automatically come to an abrupt and immediate end. By enacting section 208(2) and (3) of the Housing Act 1996, in the terms in which it applies, Parliament is to be taken as having addressed the question of the continuation of a school-age child’s education once the child’s family have been moved out of borough. Thus, the argument runs, Parliament must have intended that a transferring authority should only be required to provide the limited particulars set out in section 208(3)(a) to (e). Mr. Rutledge QC says that Parliament must have considered that this was sufficient to protect the interests of a child that was placed out of borough. Moreover, it is said, Parliament had an opportunity to amend Part 7 of the 1996 Act when it enacted the Homelessness Act 2002, but chose to make no amendments to section 208.

I reject this argument and the approach that underlies it (essentially for the reasons outlined at paragraphs 14 to 17 and 100 to 123 above). On the face of the notice, sent from one housing department to another, there is no indication (express or implied) that E was in need of any form of educational provision from Hammersmith and Fulham. The reader would have been perfectly entitled to infer that E might be able to remain in her current school (the notice contained no information about where she was in school) or indeed that she might be home educated, at a residential school, or (perhaps less likely) in private education.

What the notice evidently did not do was to put the housing department at Hammersmith and Fulham on notice that among the family being temporarily transferred out of borough there was a child missing from education with a priority educational need that ought therefore to have been immediately referred to its education department. Nor is there any other communication in the evidence (which one might expect to have travelled between educational departments at the two authorities) to show that Islington appreciated the seriousness of the situation, was planning for the continuity of E’s education during the temporary transfer, or even to show that they had specifically informed Hammersmith and Fulham that they were transferring a school-age child who would inevitably fall out of education as a result of the transfer. This is despite the provisions of Islington’s own guidance on the subject.

I have already held that, immediately before the transfer took place, it was Islington that owed the duty of education to E, both under domestic law and under the Convention. Is the service of a notice under section 208 enough to absolve Islington of its primary duty to discharge E’s Convention right to education? Did it, in other words, relieve Islington of any obligation take steps to guarantee that the duty would be effectively discharged after the temporary transfer had been effected?

In Essex, Lord Clarke adopted the language of the Strasbourg Court when asking whether an authority’s acts or omissions infringed the “essence of the right, so as to deprive it of its effectiveness”. This formulation stands alongside and is consistent with other key Strasbourg principles. Foremost amongst these is the proposition that rights must be given effect in domestic law in a manner that is practical and effective rather than theoretical and illusory. This approach also underpins the language of both Lord Bingham and Lord Clarke in the two leading cases where they each speak of the need to secure effective access to such educational provision as the state provides.

All of these principles are in play in the present context and give colour to the statutory and non-statutory framework, which must be operated in manner consistent with the overarching domestic statutory duty imposed by section 11(2)(b) of the Children Act 2004. In my view, these various signposts all point in the same direction.

I have come to the conclusion that the section 208 notice could not be sufficient to displace Islington’s obligations as the primary public authority with responsibility for guaranteeing the delivery of E’s Convention right to education. The particular factors which have led me to that conclusion are the existence of the obligation under section 11(2)(b) of the 2004 Act; the concomitant legal duty of effective liaison between authorities that I have found to exist in these circumstances; the paucity of the information provided in the notice; the lack of any specific reference to education or any clear indication that a school-age child would fall out of education as a result of the move; the fact that it was a bilateral communication between housing departments without reference to the education department at Hammersmith and Fulham; and the emphasis in all the relevant guidance on the need for continuing co-operation between local authorities in cases where a school-age child moves boroughs.

I turn next to consider the direct impact of the statutory duty imposed by section 11(2)(b) on Mr. Rutledge QC’s overall submissions on causation. In my view the existence of this duty is, in itself, fatal to his analysis. Subject to certain conditions, the sending authority can undoubtedly delegate to the receiving authority the performance of its statutory duties. What it cannot do is thereby to divest itself of its obligation to ensure that a child’s educational welfare is being adequately safeguarded by the receiving authority. Despite the delegation, the sending authority will nonetheless remain under an obligation to take reasonable steps to satisfy itself that the need to safeguard a child’s educational welfare is being properly met by the receiving authority; and it must be in a position to provide evidence that it has done so.

In the present context, that can only mean that Islington was under a duty to take steps to ensure that prior to making its decision to transfer E out of borough they had liaised in advance with the education department of Hammersmith and Fulham, and to make the necessary contemporary records. Thereafter, they were under a further duty to maintain continuing contact throughout the temporary placement to ensure that E’s educational welfare was being adequately safeguarded. Such co-ordination was essential in order to ensure that E was promptly found a place at school, and so that the disruption to her already badly bruised education could be kept to a minimum. They were also under a duty to maintain contact and plan ahead, to ensure that there would be no further disruption when the family was returned to Islington. In fact, what happened is that Islington notified Hammersmith and Fulham of the delegation of their housing responsibilities without, at the same time, liaising with the education department at Hammersmith and Fulham so as to ensure that E’s educational needs would be safeguarded.

Taking his final stand, Mr. Rutledge QC invokes the principle of presumed Parliamentary intent. He protests that section 208(2) of the Housing Act 1996 is the only notification duty that Parliament has made provision for, and that Parliament had the opportunity to amend the section in 2002 but chose to leave it in its current form. From this, he submits that it must have been Parliament’s intention that the only information that needs to be provided in an out of borough education case is that set out in section 208(2) and (3). This is despite the fact that the legislation in question was concerned with housing, not education.

It would of course follow from an acceptance of this argument that Parliament did not intend local education authorities to be under any legal duty to communicate with their counterparts in other boroughs when the housing department of the sending authority proposes to transfer a homeless school-age child out of borough who, as a result of the transfer, will inevitably fall out of education. I find it difficult to accept that Parliament would intentionally legislate to preserve such an obviously unstable and unsatisfactory state of affairs. Certainly, in my view, the bare terms of section 208 (and of the notice issued under it) are insufficient to compel such a surprising conclusion.

On the contrary, in enacting section 11(2)(b) of the 2004 Act, Parliament must be taken to have contemplated that, in its application to a cross-borough temporary housing transfer of a homeless school-age child, it imposed a duty on the sending authority to ensure the continued provision of educational services by the receiving authority. All of this, in my view, points at a minimum to the existence of a legal obligation for timely, clear and effective communication between education departments in circumstances such as the present, so that the receiving borough is put fully on notice of the fact that the sending borough proposes to delegate its statutory education responsibilities. I say “at a minimum” because mere notification is unlikely to be sufficient in every case to demonstrate that the sending borough had made adequate arrangements to ensure that the welfare of a child was being safeguarded by the receiving borough throughout the duration of the temporary placement. Some form of continuing liaison, as contemplated in the non-statutory guidance, may well be necessary to ensure that children in these circumstances do not fall through the cracks.

Applying these principles here, I find that Islington was under a legal obligation to inform Hammersmith and Fulham clearly, and well in advance of the transfer, that it was intending to delegate its subsisting educational duties (as well as its housing duties) as an inevitable consequence of the move; and a corresponding duty to satisfy themselves that Hammersmith and Fulham had made, or would promptly make, the necessary educational arrangements. They were also under a duty to record their reasoning on these two questions so that they could be in a position to adduce evidence of it in court, should the need arise.

One might expect that if such evidence existed, Islington would have produced it. However, I am not called upon to draw any inferences, or to reach any conclusions, concerning the discharge of these three duties. They are relevant only because the very fact that the sending authority is subject to these obligations in an out of borough case provides, in my view, considerable assistance in determining which authority bore primary responsibility for the delivery of E’s right to education. I am satisfied that these legal obligations are of general application to local authorities in cases such as this.

It is important to remember that we are here concerned with the implementation of a Convention right so that the primary and delegated legislation is to be read and given effect consistently with the right to education so far as it possible to do so (see section 3 of the Human Rights Act 1998). Giving effect to a provision of primary or delegated legislation consistently with a Convention right is not necessarily confined to an exercise in statutory construction. Section 3 imposes an independent statutory duty on all public authorities to act in conformity with an individual’s Convention rights, unless there is some clear and unambiguous provision of primary legislation compelling a contrary approach. In the present case, for the reasons I have given, there is none such.

Nor is there any need to stretch the statutory language. The duty imposed by section 11(2)(b) of the Children Act 2004 provides a much clearer steer in determining which authority had primary responsibility for guaranteeing E’s Convention right to education, during the period the family were temporarily placed in Hammersmith and Fulham, than a bare notice issued from one housing department to another, under section 208, without reference to any question of educational need. I am unable to accept either that the limited nature of the notification duty imposed by section 208, or the fact that Islington complied with that duty, was sufficient to relieve it of its subsisting responsibility to secure E’s Convention right to education. Even if that argument were reasonably open to Islington as a matter of conventional statutory construction (which I do not believe it is), I would hold that it is foreclosed by section 3 of the Human Rights Act 1998, and that the duty imposed by section 11(2)(b) of the 2004 Act must prevail.

I have therefore come to the conclusion that Islington was the public authority with primary (and continuing) responsibility for ensuring E’s right to education during the second period of absence. It follows that Islington must bear responsibility for causing each of the cumulative absences that occurred between June 2015 and June 2016 (other than the period between 4 and 15 June 2015).

In his closing written submissions, counsel for E, Mr. Ian Wise QC, put the matter considerably more succinctly than I have:

“[E]’s primary submission, which is advanced against the background of the framework of legal obligations set out above…is that [Islington] can and should properly be held responsible for the fact that [E] was absent from education as a result of the move to Hammersmith and Fulham. Considering the matter from the standpoint of basic causation, and on the assumption for present purposes that there is a breach of [article 2 of the First Protocol] during [the period E was housed in Hammersmith and Fulham], it is evident that [Islington] and not Hammersmith and Fulham, has principal causative responsibility for [E’s] absence from school during this period. This arose from its decision to transfer the family to another borough without any meaningful liaison with Hammersmith and Fulham as to the continuation of [E’s] education, or any “follow up” to ensure that [E] was receiving full-time education.”

For the reasons I have set out in some detail above, I have come to the conclusion that this submission is correct. It follows that Islington acted unlawfully, within the meaning of section 6 of the Human Rights Act 1998, and is responsible for the denial of E’s right to education for 50% of the relevant school year (after deducting the first week for which Islington cannot bear responsibility).

Mr. Wise QC raised a subsidiary argument under article 14 of the Convention, taken in conjunction with article 2 of the First Protocol. The submission was that E had been subjected to an unjustified difference of treatment, as compared with (a) children who are not homeless and/or (b) children whose parents are neither deaf nor illiterate. He further submitted that there was here a positive obligation to eliminate disadvantage, of the kind recognised by the Strasbourg Court in Thlimmenos v Greece (2001) 31 EHRR 15.

In light of my findings on the principal issues arising under Ground 1, I do not consider it necessary for me to reach a separate decision in relation to the alleged violation of article 14. Indeed, I am not convinced that recourse to article 14 is either necessary or appropriate in this context. This is because the domestic authorities I have cited make it quite clear that article 2 is intended to ensure not only effective, but also non-discriminatory, access to the type of education that the state ordinarily provides for such a pupil. The guarantee of fair and equal treatment therefore lies at the heart of the right itself, without the need for recourse to article 14.

Moreover, I do not think that, on the facts of this case, the discrimination arguments add anything of substance to the conclusions I have already reached. In particular, I do not consider that they could potentially impact on any remedy that may be appropriate. This is because the exercise required under section 8 of the 1998 Act must, in any event, take account of the additional impact that the breach of article 2 had on a child who was already suffering significant disadvantages as a result of the very matters that Mr. Wise QC relies upon in support of his discrimination argument see paragraph 153 below).

I turn now to the question of just satisfaction. Section 8(1) of the Human Rights Act 1998 provides that where a court finds that a public authority has acted unlawfully within the meaning of section 6, it may grant such relief or remedy, or make such order, within its powers, as it considers “just and appropriate”. However, by section 8(3), no award of damages may be made unless, taking account of all the circumstances of the case the court is satisfied that “the award is necessary to afford just satisfaction to the person in whose favour it is made”. Finally, section 8(4) requires the court to consider the approach of the Strasbourg court in deciding whether an award of damages is necessary to afford just satisfaction and, if so, in fixing the amount of the award.

The Strasbourg Court’s 2016 Practice Direction on just satisfaction claims (issued under Rule 32 of the ECHR Rules of Court on 19 September 2016) gives consolidated guidance on the approach that the Court takes to just satisfaction. The effect of section 8(4) of the 1998 Act is that the Practice Direction is an essential reference tool for a domestic court called upon to determine, under section 8(1), the just and appropriate remedy for an act that has been found to be unlawful within the meaning of section 6. There are five passages in the Practice Direction that are of particular relevance to the issues I have to decide:

Mr. Rutledge QC argues that a declaration of breach is sufficient to achieve just satisfaction in the present case. He submits that the considerations that have led the domestic courts to decline to award damages for a public law breach in the education sphere should lead the court to adopt the same approach to a breach of article 2 of the First Protocol. This is despite the fact that it has been the practice of the Strasbourg Court to award monetary compensation for such violations (see, for example, Timishev v Russia (2007) 44 EHRR 37).

There are a number of reasons for rejecting this submission. First, in my view it is inconsistent with section 8(4) of the 1998 Act, which tells in favour of an award of compensation in this case. The effect of section 8(4) is that when deciding if an award of damages is necessary to provide a just and appropriate remedy for a violation of the Convention right to education, the approach adopted by the national courts to claims for compensation for breaches of domestic public law must yield to the approach adopted in Strasbourg. Secondly, it was partly the fact that damages are not usually available for a breach in domestic public law in the education sphere that led the House of Lords in the Lord Grey School case to hold that such a breach was not to be equated with a violation of article 2 of the First Protocol. As I have been at pains to point out, the two exercises are entirely different. Thirdly, as Mr. Wise QC rightly argued in his closing written submission, it is inherent in the introduction of a mechanism for claiming damages under the Human Rights Act 1998 that there will be occasions on which damages will be awarded for a breach of Convention rights where no such damages are available under any provision of domestic law.

Mr. Rutledge QC alternatively submits that an award of compensation is not necessary on the facts because E was eventually reinstated in school and because Islington has taken steps to improve its procedures for ensuring effective lines of communication between housing and education services.

As to the first of these points, it is fully answered by the principle that E can only to be compensated for losses directly referable to Islington’s violation of her Convention right to education, specifically during the year between June 2015 and June 2016. Mr. Rutledge QC is of course right to say that the violation came to an end when she was eventually put back into school, but that cannot retrospectively alter the fact that she had already sustained compensable loss as a result of the breach (assuming a direct causal link can be established on the evidence).

The steps which Islington says it has taken to improve its procedures may or may not ensure that such cases do not occur in future. But they are immaterial to the issue of compensation. As the Practice Direction makes clear, an award of compensation under Article 41 has nothing to do with marking the Strasbourg Court’s disapproval of a public authority’s conduct, or punishing the authority in order to deter future breaches. If it did, then Mr. Rutledge QC’s submission might be of some relevance in evaluating the overall level of blame to be attributed to the borough. But the exercise required by section 8 of the Human Rights Act 1998 has nothing to do with blame. Accordingly, the steps which Islington may have taken to improve its own procedures after the event are irrelevant to the question whether compensation is necessary to afford just satisfaction to E for any harm or losses she may be shown to have sustained as the result of Islington’s failures during the year in question.

I have come to the conclusion that an award of damages is necessary to afford just satisfaction on the facts of this case. It is, in my view, plain that E must have suffered at least some compensable harm as a result of Islington’s unlawful conduct. She is entitled to be compensated for any loss that is shown to be directly attributable to the breach of her Convention right. The quantification of damages is not likely to be straightforward. As regards pecuniary loss, it may well be necessary for the parties to serve expert reports assessing the extent of any unmet educational or psychological need, as well as evidence addressing the quantification of the future costs of providing remedial private tuition or psychological support. The level of compensation for non-pecuniary loss must of course reflect the fact that E was deprived, for long periods of time, of her only regular opportunity to speak and communicate with hearing adults and children. To that extent, the fact that C is deaf and largely illiterate will be relevant to the assessment of damages (since it plainly impacted on the nature and extent of the loss that E sustained as a result of the breach).

At the hearing, it was my understanding that the parties were agreed that the appropriate course in these circumstances would be for me to adjourn the assessment of damages to a Master of the Queens Bench Division. I certainly consider that an adjournment is necessary before damages can be assessed so as to afford the parties an opportunity to file any additional evidence relevant to the question of remedial educational or psychiatric support. Such evidence would, of course, need to be carefully and accurately costed. However, the position of the parties on the question of procedure seems now to have shifted:

I have reached the conclusion that in failing to provide adequately for the education of this vulnerable child, Islington was in dereliction of its duties under section 6 of the Human Rights Act 1998. Whether that reflected an institutional malaise or isolated instances of human error is impossible (and unnecessary) for me to decide. However, the net result was that E was provided with a seriously sub-standard level of educational provision, despite the fact that her obviously pressing educational needs were well known to Islington. I have concluded that this course of action and inaction amounted to unlawful conduct within the meaning of section 6 of the 1998 Act. That conclusion is as far as the matter of fault can (or should) be taken in the present judgment.

That said, I will permit myself one final observation on this aspect of the case. In the Lord Grey School case, Lord Bingham observed that “the fundamental importance of education in a modern democratic society” requires the state to guarantee fair and effective access to its established system of mainstream education. The facts before the court in the present case illustrate just how easily this important right can be casually violated, without any deliberate decision on the part of a public authority to exclude a child or refuse entry to a school, and without any malice or bad faith on the part of the public servants involved. It is a salutary reminder to all local education authorities and their staff that in performing their day-to-day functions, they are discharging the United Kingdom’s obligations under the Convention.

The claimant’s second ground of challenge relates to two separate sets of decisions made by Islington social workers concerning the family’s care needs. The first was an assessment of C’s care needs that was carried out during June and July 2016, pursuant to section 9 of the Care Act 2014. This resulted in an adverse decision dated 4 July 2016. The second was a child and family assessment in respect of E and her two younger siblings dated 12 July 2016. This assessment had two elements. Under the relevant legislation the responsible social worker was required to consider whether the three children were “in need” within the meaning of section 17 of the Children Act 1989, and also to conduct a “young carers assessment” in respect of E, under section 17ZA of the Act.

Beginning then with the assessment of C’s care needs, I initially wondered whether the claimant had the necessary standing to mount this challenge. On one view, it is (in substance at least) C’s challenge to her own Care Act assessment. Yet it is being argued in proceedings that were brought by E alone (albeit that she brings them through C acting as her litigation friend). However, Mr. Wise QC has persuaded me that standing is not a live issue. I accept his submission that Islington’s treatment of C’s care needs inevitably had a direct and substantial impact on her children, and that accordingly E has sufficient standing to mount the challenge.

The statutory care needs assessment was carried out by Augustus Williams, a social worker in Islington’s Sensory Team (a team of social workers specifically dedicated to working with the deaf and hard of hearing). He had two meetings with C on 24 May and 1 June 2016. These meetings had been arranged for other purposes, but on both occasions Mr. Williams used the opportunity to gather information in order to prepare the assessment. He met with C again on 25 July 2016 in order to discuss the draft assessment he had by then prepared on the basis of his previous two encounters with her.

It is necessary to begin with an explanation of the nature of such an assessment, and what it is required to decide. Section 9(1) of the Care Act 2014 provides that “[w]here it appears to a local authority that an adult may have needs for care and support, the authority must assess: (a) whether the adult does have needs for care and support, and (b) if the adult does, what those needs are”. Section 9(4) provides that a needs assessment must include an assessment of “(a) the impact of the adult’s needs for care and support on the matters specified in section 1(2), (b) the outcomes that the adult wishes to achieve in day-to-day life, and (c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes”.

The matters specified in section 1(2) comprise (a) personal dignity (including treatment of the individual with respect); (b) physical and mental health and emotional well-being; (c) protection from abuse and neglect; (d) control by the individual over day-to-day life (including care and support, or support provided to the individual and the way in which it is provided); (e) participation in work, education training or recreation; (f) social and economic well-being; (g) domestic, family and personal relationships; (h) suitability of living accommodation; (i) the individual’s contribution to society.

The Department of Health’s statutory guidance on the conduct of care and support assessments (20 July 2016) emphasises the need for a holistic approach, capable of establishing the “total extent of needs before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs”.

The final assessment under section 9 involves two separate inquiries. By virtue of section 13(1) of the 2014 Act, a local authority must first decide whether an adult has an unmet need for care and support. If the answer to this question is affirmative, the authority must then determine whether any of those needs meet the eligibility criteria in section 13(7). Section 13(7) provides that needs meet the eligibility criteria if they are of a description specified in regulations, or form part of a combination of needs that are so specified.

The relevant regulations are the Care and Support (Eligibility Criteria) Regulations 2015. Regulation 2(1) provides that an adult’s needs meet the eligibility criteria if (a) they arise from or are related to a physical or mental impairment or illness; (b) they render the adult unable to achieve two or more of the outcomes specified in regulation 2(2); and (c) there is, in consequence, or is likely to be, a significant impact on the adult’s well-being.

The outcomes specified in regulation 2(2) are (a) managing and maintaining nutrition; (b) maintaining personal hygiene; (c) managing toilet needs; (d) being appropriately clothed; (e) being able to make use of the adult’s home safely; (f) maintaining a habitable home environment; (g) developing and maintaining family or other personal relationships; (h) accessing and engaging in work, training education or volunteering; (i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and (j) carrying out any caring responsibilities the adult has for a child.

Regulation 2(3) provides that for the purposes of regulation 2(1)(b), an adult is unable to achieve an outcome if they are (a) unable to achieve it without assistance; (b) able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety; (c) able to achieve it without assistance but doing so is likely to endanger the health or safety of the adult or others; or (d) able to achieve it without assistance but it takes significantly longer than would normally be expected.

Mr. Williams has made a detailed witness statement for the purposes of these proceedings which was put before the court without objection. In the statement he explains that he carried out his assessment of C’s care needs using the “FACE Overview Assessment” form. This form addresses, in a convenient grid format, the criteria identified in the 2014 Act and the 2015 Regulations, and provides a checklist for the assessor to ensure that all relevant issues have been considered and addressed. In his witness statement Mr. Williams indicates that he considered all aspects of C’s needs, and had regard to her “wishes and preferences”. He considered throughout, he says, whether and to what extent her needs impacted adversely on her well-being, as required by section 1(2) of the 2014 Act. He formed the view that a number of C’s identifiable needs had already been or were being addressed, either by Islington services themselves, by Islington-funded services or (and perhaps most significantly) by a charity called Deafhope that caters specifically for deaf women and children who have been victims of domestic violence.

The essence of Mr. Williams’ assessment was that C did not have eligible needs as defined under the Care and Support (Eligibility Criteria) Regulations 2015. He recognised that C had certain identifiable needs, but concluded that she did not meet the eligibility criteria in regulation 2(1)(b). He was satisfied that she is unable to care adequately for her children, particularly E, without assistance (regulation 2(2)(j)). However, this fell short of the qualifying threshold laid down in section 2(2), which requires that the relevant adult must be unable to achieve two of more of the relevant outcomes without assistance (I am putting the threshold question in shorthand, as I will do for the remainder of this judgment).

The overall approach that Mr. Williams took to the assessment is set out in his witness statement at paragraphs 10 to 17:

“10.

[C]’s principal needs arise from the fact that she has a hearing impairment. In Sierra Leone, she learned American Sign Language (‘ASL’) which is slightly different from British Sign Language (‘BSL’), so it will take her some time to complete the transition from ASL to BSL. She came to the UK from Sierra Leone in 2006.

11.

[C] can say a few simple words and she communicates with her three children by means of contact, gestures and sounds. She uses sign language with [E]. Her children can understand her sounds in a way that an outsider could not.

12.

[C] makes good and frequent use of her smart phone which she uses to send and receive text messages, often, I believe, with people in the deaf community.

13.

[C] does receive help in four ways. Each of these four forms of help comes from an agency or service that is independent of Islington and which I have assumed for the purpose of my Care Act assessment will continue to provide her with necessary services. Clearly, if such a service ceased to be available then I would reconsider whether [C]’s assessment should be updated.

14.

Deafhope, which is a nationally funded service, has workers who often see [C], particularly Sarah Eltar, who originally put [C] in touch with me. These workers are themselves deaf and are able to sign with [C] and hence to translate documents for her and assist her in other ways. For example, Ms. Eltar has supported [C] to register with a GP and, as her outreach worker, she provides her with emotional support and had attended some court hearings [in connection with C’s matrimonial litigation].

15.

Deafhope has a family support worker, Moona Mohammed, who has been assisting [C] with some low level parenting issues around boundaries that she has had with [E]. Ms. Mohammed is also deaf and is able to sign with [C]. This service was prompted by a request in July from my colleague in Children Services, Lucy Woolliscoft-Faulkner.

16.

[C] is in touch with the Deaf Welfare Rights Advice Service (‘DWRA’), an Islington funded service that is based in 222 Upper Street. This service can support [C] with a wide range of issues including:

Booking a BSL interpreter, for NHS, GP, council and other appointments;

Housing repairs and other housing queries;

Form filling and letter translation;

Help and support with HMRC (child tax credit/working tax credit);

Debt and access to work advice;

Referral to other services that support deaf people.

17.

[C] often has times when she does not have to care for her children. [E], aged 8, is at school, and since July [F], aged 3, has been at nursery. Since September she has been attending nursery for 30 hours per week and [J], aged 1, has been attending the same nursery for 15 hours per week (9:45 to 12:45 during weekdays).”

It is apparent then that in carrying out the assessment Mr. Williams attached considerable (perhaps decisive) importance to the existing support that C was receiving, in particular the support she was receiving from Deafhope. Mr. Wise QC criticises him for placing reliance on Deafhope’s services because he was (or ought to have been) aware that they were due to be terminated in the relatively near future. The witness statement of Sara Eltar, a Deafhope outreach worker, confirms that the service would be withdrawn when the domestic violence issues had been resolved in family law proceedings. Another Deafhope worker, Lynn Shannon, stated that the organisation was nearing the point at which its services would be terminated and that this had been made this clear to Islington.

Mr. Wise QC argues that in these circumstances it was inappropriate for Mr. Williams to rely (or to rely so heavily) on the provision of Deafhope’s support, since the purpose of the assessment was to plan for C’s future needs. He also complains that in one passage of his witness statement Mr. Williams erroneously states that C would “continue to have access” to Deafhope’s services.

The answer to both of these complaints is to be found in paragraph 13 of Mr. Williams’ witness statement (set out at paragraph 169 above). There, he indicates that he made a provisional working assumption for the purposes of the assessment that the necessary services would continue for the time being, but gave an undertaking to reconsider his assessment if any of the existing services were to be withdrawn. This undertaking was repeated by Mr. Rutledge QC at the hearing, after he had taken specific instructions on the point from his client.

In light of this undertaking, I do not think there is anything in Mr. Wise QC’s central complaint. Mr. Williams was entitled to make the assessment on the basis of the situation as it stood at the time, and the support which was then available, so long as he made allowance for any significant change of relevant circumstances in future. His recognition that the existing professional support structures might not be available indefinitely reflects the accurate position; and his concession that a change to the current arrangements would require a fresh consideration of the statutory needs assessment has now been reflected in the undertaking given to the court by Islington acting through counsel duly instructed. Nor is there anything in the complaint that, at another point in his statement, Mr. Williams said that he had carried out the assessment on the basis that the Deafhope service would continue to be available to C. When the statement is read as a whole, it is clear that this assumption was made subject to the caveat I have recorded.

In his written assessment, Mr. Williams addressed each of the outcomes specified in regulation 2(2) in turn. He considered that (apart from the parenting issue) the only other specified outcome that potentially raised an issue was the question whether C could make use of her home safely. However, for reasons he explains in his witness statement, he did not consider that this could give rise to a care need under the Act since the principal issue under this outcome was C’s need (after a year of disruption) to find a permanent and stable home. The urgency of that need had by then been addressed by the family’s transfer to Iberia House, where they have now lived for something over a year. What C needed was time to settle in.

Mr. Wise QC argues that the entire assessment was fundamentally flawed. By reference to a lengthy list of fairly specific criticisms, mainly concerning the manner in which Mr. Williams filled out the FACE Overview Assessment form, Mr. Wise QC characterised the process as slipshod and the individual component observations as superficial or contrary to the known facts. He says the process of reasoning was “exiguous and incoherent”. In the result, he invites the court to stigmatise Mr. Williams’ conclusion as irrational.

In light of the way in which Mr. Wise QC has put his case, it will be necessary to summarise and consider each of his criticisms in a little detail. For convenience, I will group them together, and where relevant, I will summarise Mr. Williams’ responses as set out in his witness statement. I will come in due course to consider the adequacy of Mr. Williams’ drafting. He has, in a number of respects, provided a significantly more detailed explanation of his process of analysis in his witness statement, than was spelt out in the reasons recorded on the form.

Where a decision-maker’s contemporary reasoning process is challenged as irrational in judicial review proceedings, the court will exercise caution before relying on an ex post facto explanation that could have been (but was not) included in the reasons recorded at the time the decision was made. In the present context, however, the authorities show that the mere fact that an assessment was poorly drafted will not necessarily be sufficient to unseat its conclusion (see paragraphs 213 to 218 below). Mr. Williams’ fuller explanations of his reasoning process are at least not inconsistent with the relatively meagre entries in certain sections of the FACE Overview Assessment form. Bearing in mind that this is a frontal challenge to the rationality of the assessment, I consider that it would be right to take these explanations into account.

In adopting this approach, I will, of course, bear in mind throughout that explanations given for the first time in a witness statement cannot answer Mr. Wise QC’s complaint that the form itself was completed in an unduly sparse fashion that failed adequately to spell out Mr. Williams’ full reasoning process. It therefore left him, and his employers, open to the criticisms that now confront them. C should not, it is said, have to rely on a witness statement served in judicial review proceedings in order to be able to understand the full reasons for the decision that was reached. She was entitled to know the operative reasons at the time the decision was made: R v City of Westminster, Ex p. Ermakov [1996] 2 All ER 302, 309-310. On the other hand, C was not entirely dependent on the form for her understanding of Mr. Williams’ reasoning. As will be recalled, he has discussed his draft assessment with her in person on 25 July 2016, before it was finalised.

I will begin with the criticisms which Mr. Wise QC has singled out as demonstrating the slipshod nature of the exercise. He contends that the document is marbled throughout with entries in note form conveying the impression that no real thought went into its preparation; he says that some of the entries are so inconsistent with the known facts as to demonstrate that Mr. Williams had failed to get to grips with the real issues; and he has identified what are said to be internal inconsistencies. Taken together, he argues, these various flaws demonstrate that the author failed to make any genuine attempt to analyse the issues he was required to address under the Act and the Regulations. In consequence, the assessment failed to comply with the requirements of section 9(4) and the applicable statutory guidance. It follows from this, says Mr. Wise QC, that the assessment was not lawfully conducted. In the absence of a lawfully conducted assessment, it was not open to Islington to reach the conclusion that C had no eligible needs. It is by this route that he invites the Court to reach the conclusion that the decision was irrational and unlawful.

In an effort to make good this argument Mr. Wise QC drew my attention to what were said to be the most egregious errors. If this was his intention, it is perhaps unfortunate that his first point was a purely semantic one. Mr. Wise QC suggests that Mr. Williams played down the extent of C’s disability by qualifying her as “hard of hearing” rather than deaf (notwithstanding that, at another point in the assessment, he describes her as “deaf without speech”). That is, in my view, a matter of terminology rather than substance. I do not regard this as a sufficiently cogent criticism to require a response.

Mr. Wise QC next submits that the form included “precious little analysis” of how C’s needs did or did not adversely impact on her well-being, as required by section 1(2) of the Act. In his witness statement, Mr. Williams responds to this suggestion in the following terms:

“The impact of [C]’s needs on her well-being was considered throughout my assessment, as required by section 1(2) of the Act. The provision of specialist sensory equipment, information on how to access BSL Interpreters, [and] access to the DWRA service, are measures that will minimise the impact of [C]’s needs on her well-being. [C] also receives additional support from Deafhope and [has] been receiving support from children services and the housing department.”

This passage, in my view, affords a reasonable explanation of Mr. Williams’ approach to this important question. I accept that it is an accurate distillation of his contemporary thinking. It is fair to say, however, that Mr. Williams has provided no explanation for the failure to include this more detailed account in the assessment form itself.

As a further example of what is said to be shoddy reasoning, Mr. Wise QC points to the fact that under the heading “Impact of Sensory Impairment” Mr. Williams has put a rather telegraphic summary of his conclusion (“Major impact. Limited independence. Isolation risk”). Mr. Wise QC describes this entry as “patently inadequate”.

In his witness statement, Mr. Williams explained the entry in these terms:

“[C]’s sensory impairment has a major impact on her, as without the provision of BSL interpreters, specialist sensory equipment and advice and information on how to access deaf services, she will be at significant risk of social isolation and limited independence. However, these services are available and [C] has been accessing them without difficulty.”

This undoubtedly provides more information about Mr. Williams’ analysis than the entry on the assessment form. It is, in my view, reasonable in its own terms, and I accept it to be true. As with the previous example, however, it remains unclear to me why Mr. Williams chose not to include this fuller explanation of his reasoning in the written assessment itself.

A similar criticism is made of Mr. Williams’ entry under the heading of “Emotional Well-being”. The short entry in the record reads “Low/anxious most days; impacts behaviour”. This, again, is said to be superficial and lacking any meaningful analysis. In response to this criticism Mr. Williams elaborated on the entry in this way;

“[C] told me that she feels anxious and emotional daily and this causes her to be stressed and upset. However, she has not presented to me as being either sad or alone. Moreover, she related her anxiety and emotions to (i) the fact that her family was in Africa, (ii) [the fact that] she needed help to look after her children, and (iii) [the fact that] she did not know where to get help. These issues have, as I always suspected they would, waned with the passage of time as she has settled in and been able to access services. In my opinion, many single parents with three young children who had recently moved to a new home would often feel low/anxious.”

Mr. Williams went on to note that C’s mood did not seem to be impacting adversely on her care of the children, and that medical treatment would be available to her if she continued to experience feelings of depression. This passage provides a readily comprehensible explanation of the matters that Mr. Williams took into account and is, in my view, reasonable. I accept it to be a faithful reflection of his contemporaneous analysis. Yet again, however, it is question-begging. It would undoubtedly have been much more helpful if Mr. Williams had recorded this analysis in the assessment form itself.

A rather different example of what is said to be superficial reasoning relates to the obligation to consider, under section 9(4)(b) of the Act, the outcomes that the adult wishes to achieve in day-to-day life. As to this, Mr. Wise QC argues that “there is almost no explanation or analysis whatsoever”. The way this point is put in his skeleton argument is illustrative of the type of criticism he makes of the assessment more generally:

“While the document states, under ‘Work, Education, Training and Volunteering’ that [C] ‘would like to pursue a further education course once her family situation becomes stable’, there is no assessment of what exactly she wishes to achieve, and how care and support might contribute to that outcome beyond a bare statement that she will receive ‘information and advice’.”

Mr. Williams gives, in my view, a complete explanation for this entry in his witness statement. He says that he attempted to clarify C’s educational aspirations with her, but she was unable to articulate anything specific. She was not contemplating entering further education until her housing situation had stabilised. Given the order of C’s current priorities, Mr. Williams told her that when she was ready, the DWRA service would work with her to explore training and employment opportunities. The reason there was “no assessment of what exactly she wishes to achieve” was that C was undecided and was not yet ready to make any plans:

“During my assessment, [C] did not provide any information regarding what she aims to achieve in pursuing further education. When asked, she emphasised that her priority at that moment was her housing situation and education for her children. She states that she will consider that once her family situation is settled. [C] is aware that she will receive advice and information as well as support from the DWRA service, regarding further education and other opportunities for deaf people.”

This reasoning is, in my view, a good example of a situation in which the fuller explanation, provided in a later witness statement, shows the original criticism to have been misplaced. In this instance, I am not persuaded that Mr. Williams ought to have included the additional information in the form. The entry itself was adequately comprehensible without it. The need for a fuller account arose from the fact that Mr. Wise QC invited the court to draw an inference (from the absence of any record of concrete planning) that Mr. Williams had failed to address his mind properly to C’s need for further education. However, as is now apparent, this was because C herself was not yet ready to discuss her options, much less to make any plans.

The next category of complaints relates to certain entries on the assessment form which Mr. Wise QC contends to be so obviously contrary to the known facts as to establish that Mr. Williams had failed altogether to get to grips with the case, and so was not in a position to make a valid and lawful care needs assessment.

First, Mr. Wise QC takes Mr. Williams to task for his reliance on C’s ability to communicate by text. Mr. Williams noted from his own observations that C made “good and frequent use of her smart phone”. Mr. Wise QC questions whether this can be correct in view of her literacy difficulties. However, it is not, in my view, a function of this court in judicial review proceedings to second guess a factual observation made by the assessor on the basis of his own interaction with the subject, solely on the ground that there is evidence which is said to point the other way.

In a similar vein, Mr. Wise QC takes objection to the following passage in Mr. Williams’ statement which, he argues, is wholly inconsistent with the established facts:

“I discussed [C]’s use of the internet and her ability to do internet shopping and she confirmed that she was in the process of having telephone and internet access made available at her home. In my email of 26 July I recorded that ‘[C] has internet connection now at home and she uses a[n] electronic tablet.”

Again, Mr. Wise QC argues that it is “difficult to see how this can be correct” in view of C’s literacy difficulties. For the reasons I have given in relation to the previous complaint, however, I do not consider that this suggested conflict of fact is a matter for this court to resolve in judicial review proceedings, particularly in the absence of oral evidence and cross-examination, something that neither party requested.

Mr. Wise QC’s next complaint is that aspects of Mr. Williams’ assessment are inconsistent with objective expert evidence. After the present proceedings began, E’s solicitors served an expert report from Dr. Gratton, a clinical psychologist. The report is dated 11 October 2016. Dr. Gratton’s conclusions on a number of the principal questions relevant to C’s care needs were very different from those of Mr. Williams. For example, Dr. Gratton found that E was suffering from moderately severe post-traumatic stress disorder and a major depressive illness. Without the benefit of that report, Mr. Williams had concluded in the original assessment that C did not appear to him to be suffering from any serious mental health issue.

In his closing written submissions, Mr. Wise QC made it clear that he sought to adduce this evidence solely in order to support an argument that the service of the report on Islington during the course of the proceedings should have caused Mr. Williams’ to reconsider his assessment. Such was the significance of the differences between Dr. Gratton and Mr. Williams, that Islington ought to have carried out a full re-assessment of C’s care needs in light of the report. Mr. Wise QC disavowed any intention to rely on the report as expert evidence, and expressly indicated that he was not inviting the court to endorse the merits of Dr. Gratton’s opinions, or base any factual conclusions upon her report.

It would have been very difficult for Mr. Wise QC to take any other position. On a judicial review of a statutory care needs assessment, it is no part of the court’s function to reach its own conclusions on the issues that fall to be decided under the Act and the Regulations. That would be to usurp the function of the primary decision-maker. Still less can it be the court’s function to carry out such an exercise on the basis of evidence that was not before the decision-maker. Equally, Mr. Williams cannot be faulted for having failed to take the report’s contents into account in the assessment that is under challenge, since it did not form part of the material available to him at that time.

However, inconsistently with the stance he had outlined, Mr. Wise QC did indeed refer me, during the course of his argument, to various aspects of the report as evidence establishing certain facts about C. He then sought to rely on those facts to demonstrate that Mr. Williams’ conclusions were wrong or inconsistent with the evidence. As I have already noted, none of this forms any part of the court’s function on a judicial review such as this, and I decline the invitation to rely on the report in this way.

As for Mr. Wise QC’s stated reason for introducing the report, namely to provoke a re-assessment, Mr. Williams duly considered its contents in order to determine whether it merited a full re-assessment of C’s care needs. He concluded, for reasons set out in detail in his witness statement, that the report would have made no difference to the outcome. Mr. Wise QC described this as “a very stark example” of irrationality, or in the alternative a failure to take account of a relevant consideration.

Leaving aside the shifts in Mr. Wise QC’s position on the purpose for which the report is relied upon, it is quite clear that Mr. Williams did in fact address his mind to it. It cannot be said that he failed to take account of a material consideration. He clearly considered it in some detail and concluded that it would not have persuaded him to take a different view of C’s care needs. Whilst I fully understand the submission that Dr. Gratton’s report justified a re-evaluation (since it introduced fresh considerations) I do not accept the submission that Mr. Williams’ evaluation of the impact of the report was irrational. Given the route by which he had arrived at the final assessment of C’s care needs, Mr. Williams was, in my view, entitled to conclude that Dr. Gratton’s report would have made no material difference to the overall outcome.

There are other factual disputes that Mr. Wise QC has put forward for consideration by the court. In his witness statement Mr. Williams asserts that when he met with C on 25 July 2016, she indicated that she was “content” with his assessment. C disputes this in her second witness statement. It is unnecessary for me to attempt to resolve this conflict of recollection because it is immaterial to the outcome of the challenge. Whether or not C was happy with the assessment has no bearing at all on the question I have to decide, which is whether the assessment was lawfully and rationally conducted. This is just as well because, once again, it would have been impossible to determine the issue without hearing oral evidence.

Next, Mr. Wise QC points to what he says are internal inconsistencies in Mr. Williams’ reasoning. To illustrate this, he draws attention to the fact that Mr. Williams has recorded at one point in the form that C was “[a]ble to be independent”, but says elsewhere that she was “not able to pursue any activities at the moment due to her circumstances”. This, says Mr. Wise QC, betrays the mudded thinking that characterised the assessment as a whole. I am bound to say that I cannot see any irreconcilable inconsistency between these two entries. A person can surely be capable of independence whilst at the same time being unable, for any number of reasons, to participate in certain specific activities.

Mr. Williams’ answer is that his assessment of C had yielded evidence for both conclusions. On the one hand, C maintained independent contact with friends and family. On the other hand, she was not currently able to take up some of the services on offer to her because she was mainly focussed on housing and schooling issues (E had not yet returned to school during Mr. Williams’ first and second visits):

“My assessment of [C] is that she is able to be independent in maintaining her personal relationships and engage in social activities. [C] is able to contact family and friends, as she uses text, as well as video messages on her smart phone to do so. She is also in receipt of information regarding Deaf Clubs in and around the borough of Islington and has access to the DWRA service, who can provide her with additional support if required. At the time of my assessment, [C] chose not to, as she said she was focussed on her housing and schooling issues for her family. It was because of this choice, rather than any need for services, that I recorded that she was ‘not able to pursue any activities at the moment, due to her circumstances’.”

That seems to me to be a perfectly reasonable explanation for the entry on the assessment form, and one that fully answers Mr. Wise QC’s complaint. The explanation addressed a misplaced criticism. Properly understood, there was no valid challenge on grounds of inconsistency in the first place. Mr. Williams’ reasoning cannot fairly be attacked for failing to anticipate such a criticism, or for failing to address it in the written assessment.

Another example of internal inconsistency is said to arise in connection with Mr. Williams’ overall conclusion that C had no eligible needs. Mr. Wise QC contends that this assessment is “very difficult to reconcile with the earlier statement that her disability has a ‘major impact on her life’.” Again, I am afraid the suggested inconsistency is not obvious to me.

Under the scheme laid down in the Statute and Regulations, a person only has eligible needs if (a) those needs arise from (or are related) to a physical or mental impairment or illness; and (b) if they render the adult unable to achieve two or more of the outcomes specified in regulation 2(2). Accurately put, Mr. Williams’ conclusion was that C’s needs arose from a physical impairment (indeed one which had a major impact on her life) but that she did not satisfy the separate and additional eligibility criterion of being unable to achieve two or more of the specified outcomes without assistance.

Mr. Williams purports to explain his position on this alleged conflict of reasoning in his witness statement. Put shortly he says that he does not consider the two aspects of the assessment to be inconsistent with one another because C had and would continue to have access to the four services he had earlier identified. This must, however, be read alongside the earlier passage in his statement in which he recognised the possibility that one of these services might be withdrawn, and undertook to conduct a re-assessment if that were to occur (see paragraph 13 of his statement, at paragraph 169 above).

I do not find Mr. Williams’ answer on this issue altogether easy to understand. The help provided, for the time being, by the various services does not seem to me to address the alleged internal inconsistency in his reasoning. However, for the reasons I have already given, I do not consider that there is any real inconsistency for him to explain. Mr. Wise QC is fully entitled to take issue with the reasonableness of his ultimate conclusion that C had no eligible needs. However, that is not the same thing as saying that the assessment is internally inconsistent and for that reason irrational.

The last instance of internal consistency advanced by Mr. Wise QC also relates to the overall conclusion that C had no eligible needs because she was not unable to achieve two or more of the outcomes prescribed in regulation 2(2). Mr. Wise argues that this conclusion is inconsistent with the information that Mr. Williams recorded in the “Outcomes” section of the form. In the column headed “Details of your needs” Mr. Williams entered notes recording some of the problems facing C in connection with a number of the prescribed outcomes. How, asks Mr. Wise QC, could he then have come to the conclusion that she only qualified as unable to achieve one outcome without assistance? Mr. Williams ought, it is said, to have appreciated from his own assessment that she qualified under more than one of the prescribed outcomes.

This is not necessarily so. The conclusion that an adult has needs in relation to one of the prescribed outcomes is not necessarily to be equated with a conclusion that she is unable to achieve that outcome without assistance, within a reasonable time, and without any of the adverse consequences listed in regulation 2(3) (significant pain, distress or anxiety and risk to the adult herself or to others). Some needs may not be serious enough to prevent the adult from achieving the outcome without assistance. Others may already have been addressed or they may not be care needs at all (in the sense that they are related to an aspect of C’s existing situation that could not be addressed by the provision of care and assistance by the local authority). The question whether there is a conflict of the kind suggested by Mr. Wise QC will thus depend on the nature and extent of the needs that have been identified, and whether those needs remain unmet.

Mr. Williams has amplified his reasons for concluding that although C had identifiable needs in relation to some of the other prescribed outcomes, these were not qualifying needs for the purposes of regulation 2 of the 2015 Regulations (see paragraph 20 of his witness statement):

In the end, therefore, the court must determine, in light of the particular facts recorded in the assessment, whether or not it was open to a reasonable decision-maker to conclude that C had needs in connection with a particular outcome, but (a) the need did not amount to a care need as such; (b) the need had been or would be addressed by other means; or (c) the need did not prevent her from achieving the prescribed objective without assistance.

Mr. Wise QC submits that Mr. Williams’ conclusion is “flatly contradictory with such limited analysis as is included in the assessment”. On this basis, he argues that the conclusion was inevitably irrational. However, for the reasons I have given, he has failed to convince me that there is any such inevitable contradiction on these facts. In these circumstances, the argument is reduced to a submission that Mr. Williams should have decided the outcomes question differently.

I turn now to the authorities bearing on the intensity of the court’s standard of review in analogous contexts. In R (Wahid) v TowerHamlets Borough Council [2002] EWCA Civ. 287 at paragraph 33 Hale L.J (as she then was) made the following observation in the context of a needs assessment conducted under section 47(1) of the National Health Service and Community Care Act 1990:

“Need is a relative concept which trained and experienced social workers are much better equipped to assess than are lawyers and courts, provided that they act rationally.”

To similar effect are Pill LJ’s observations in the same case (at paragraph 23):

“I [do not] accept that it is for the court, [rather than] the local authority, to decide whether the applicant is in need of care and attention which is not otherwise available to him. It is for the authority to make that decision, subject to the possibility of challenge by way of judicial review on any of the usual grounds.”

In McDonald v RB Kensington and Chelsea [2011] 4 ALL ER 881, [2011] UKSC 33 Lord Dyson explained how the court should approach a care needs assessment in these terms:

“In construing assessments and care plans reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning.”

In R (on the application of Ireneschild) v Lambeth LBC, [2007] EWCA Civ 234, the Court of Appeal endorsed the continuing relevance of Lord Brightman’s observations in Pulhofer v Hillingdon Borough Council [1986] AC 484:

“My Lords, I am troubled at the prolific use of judicial review for purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of the fact. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers, or otherwise acted perversely, I think great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate case, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power (e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] 1 AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum, ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

In Ireneschild Hallet L.J. observed that although those remarks were “directed to a different statutory function in a different era” they were nonetheless “as pertinent today as they were in the 1980’s” (at paragraph 44). I would add that, in my view, they also provide a useful guide to the approach which the court should take in the present case.

In Holmes-Moorhouse v Richmond upon Thames LBC [2009] 1 WLR 413, at paragraph 50, in the context of a judicial review of a local authority’s housing decision, Lord Neuberger made the following observations:

“[A] benevolent approach should be adopted [by the court] to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misjudged reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”

Lord Neuberger went on, at paragraph 45, to give some examples of the kinds of objection that would be unlikely to vitiate the ultimate conclusions reached by a local authority:

“Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same, notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes the decision is the only one which could rationally have been reached. In all such cases the error should not (save, perhaps in wholly exceptional circumstances) justify the decision being quashed.”

I accept Mr. Rutledge’s submission that this guidance is equally apt to apply to a care needs assessment under the 2014 Act.

Based on the guidance provided in the authorities I have cited, Mr. Rutledge QC submits that the correct approach is to read each assessment as a whole, in a non-technical way, bearing in mind that it was drafted by a social worker and not a lawyer, and paying due deference to a statutory scheme which vests the fact-finding function in the assessor, and which requires trained social workers to make highly evaluative decisions based, in part, on comparative needs. The court should only interfere if it is satisfied that no reasonable decision-maker could have arrived at the same conclusion. In his closing written submission Mr. Wise QC indicated broad agreement with this formulation (paragraph 46) but argued that the reasoning in Mr. Williams’ assessment was (to use Lord Neuberger’s words) “incomprehensible or misguided”.

I agree with the parties that this summary of the law should be my starting point. However, I would add that I accept Mr. Wise QC’s submission that elements of proportionality review have, over the years, been gradually incorporated into the common law test of rationality: Pham v SSHD [2015] UKSC 19; Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69. In a context such as the present, these developments require that the intensity of the court’s review should reflect the profoundness of the impact of the decision (objectively judged) on the individual affected by it: R (L) v Leeds County Council [2010] EWHC 3324 (Admin) at paragraph 59, per Langstaff J. I also accept that, on the facts of the present case, this calls for careful and detailed scrutiny by the court, given the impact of the assessment on the resources available to this disadvantaged family. That is why I have considered it necessary to examine each of the principal criticisms advanced by Mr. Wise QC separately and in some detail, and to evaluate with due caution the explanations advanced by Mr. Williams in his witness statement.

I turn now to my conclusions. I have already rejected the majority of Mr. Wise QC’s specific criticisms of the reasoning, internal logic and rationality of the assessment. There are two questions that remain to be decided. The first question is whether the paucity of reasoning in three particular sections of the assessment amounts, in itself, to a fatal flaw requiring the court to quash the decision and order a re-assessment (see paragraphs 182, 185 and 187 above). The second question is whether, looking at the assessment as whole, and taking into account the fuller explanations set out in Mr. Williams’ witness statement, the ultimate conclusion must be characterised as irrational.

As to the first question, I consider that in the three respects I have identified the assessment form is undoubtedly short on reasoning. The relevant entries are very brief and relatively uninformative when compared with the fuller account provided in Mr. Williams’ witness statement. Each entry consists, in effect, of trigger notes. They could be mistaken for a simple record of C’s responses, rather than a record of the process of reasoning by which Mr. Williams reached his assessments on each constituent issue, and how those assessments related to his ultimate conclusion. Mr. Williams would, in my view, do well in future to include a more thorough explanation of his reasoning in relation to key steps in the assessment such as these, something more akin to the reasoning spelt out in his statement.

However, I have come to the conclusion that these drafting defects are not, in themselves, sufficient to render the decision unlawful for lack of reasoning. They are not incomprehensible or misguided. They are conclusions that were open to Mr. Williams, albeit that they were recorded in an extremely summary form. The entries are consistent with the explanations that Mr. Williams has given in his witness statement. When those explanations are taken into account, I am unable to conclude that these three particular drafting inadequacies are sufficient in themselves to demonstrate that the overall conclusion was irrational.

I turn now to the second question. In his closing written submissions Mr. Wise QC made it quite clear that he is not contending that Mr. Williams failed to adopt a holistic view of the case. Nor is he contending that he failed to address his mind to each of the criteria required under the statute and the regulations. Mr. Wise QC’s challenge is, he says, a rationality challenge, pure and simple.

The question that ultimately has to be addressed is whether it was open to Mr. Williams, on the facts as he assessed them, to reach the conclusion he did. I admit that I was initially a little surprised at the outcome of the assessment. It seemed harsh to me. It was my impression that another reasonable decision-maker might well have concluded that C had eligible needs. However, that is not enough to enable Mr. Wise QC to succeed. Unlike Mr. Williams, I have not had the advantage of discussing these issues with C and of being in a position to evaluate her answers for myself. Nor is it the court’s function to find the facts. That responsibility is entrusted by Parliament to the local authority. For Mr. Wise QC to make good his irrationality challenge he would need to persuade me that no reasonable decision-maker could have reached the conclusion that Mr. Williams reached on the facts as he found them to be.

I have already evaluated the individual components of Mr. Wise QC’s composite critique. After weighing each criticism, I have come to the conclusion that the majority of them are unfounded. The only points that survived close inspection were those that related to the telegraphic nature of the three entries I have identified, and I have already expressed my view as to these.

Overall, I am unable to find any basis for concluding that the decision was irrational or otherwise unlawful in the sense described in the authorities. In particular, I accept the veracity of the evidence set out in Mr. Williams’ witness statement explaining the process by which he came to his conclusion. Once it is recognised that he was entitled to make the assessment on the basis that C was currently receiving services from Deafhope (and, crucially, that he would conduct a re-assessment if those services were to be withdrawn) the statement provides a sufficiently cogent explanation to survive a rationality challenge. I therefore accept Mr. Rutledge QC’s central submission that the conclusion reached in the assessment lies within the sphere of lawful decisions that were open to Mr. Williams on the facts as he assessed them to be.

The final ground of challenge concerns the child and family assessment in respect of E and her two younger siblings dated 12 July 2016. Under section 17(1) of the Children Act 1989, it is the general duty of every local authority (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. This general statutory duty carries with it a specific obligation to assess whether and to what extent a particular child and its family is in need in the sense described in section 17(1): R (G) v Barnet LBC [2003] UKHL 57. Guidance for the conduct of such assessments is provided in chapter 1 of Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (March 2015).

Under section 17(10) of the Act, so far as it is relevant to the present case, a child is “in need” where (a) s/he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development, without the provision of services by a local authority; or (b) his/her health or development is likely to be significantly impaired, or further impaired, without the provision of such services. There is a further criterion related to children with disabilities. Despite Mr. Wise QC’s valiant attempt to persuade that this might be in play in the present case, if the younger children later proved to be deaf, I am unpersuaded by his argument.

The relevant assessment was carried out by Lucy Woolliscroft-Faulkner, a social worker within Islington’s Children in Needs team. The essence of her conclusion was that none of the three children met the threshold for statutory intervention. Mr. Wise QC contends that this conclusion, in respect of each child, was both irrational, and in breach of the relevant statutory and non-statutory guidance.

The care needs assessment for the three children was carried out simultaneously with a young carer’s assessment in relation to E. An important part of the case advanced by Mr. Wise QC is that the findings in the two related assessments concerning E were inconsistent with one another and for that reason irrational.

Section 17ZA(c) of the 1989 Act defines a “young carer” simply as a person under the age of 18 who provides care for another person. Under section 17ZA a local authority is obliged to assess whether a young carer within their area has needs for support, and if so, what those needs are. This duty arises only if the child crosses the relevant statutory threshold. The threshold for a needs assessment under section 17ZA is crossed (a) if it “appears to the authority” that the young carer “may have needs for support” or (b) if the authority has received a request to assess the young carer’s needs for support (whether from the young carer or his/her parent). The performance of this duty is governed by the Young Carers (Needs Assessment) Regulations 2015, which set out general and specific requirements that the authority must comply with.

In relation to E, Ms. Woolliscroft-Faulkner found, in the context of the young carer’s assessment, that E was providing services for C, particularly the translation of spoken language into sign language, and the reverse. Ms. Woolliscroft-Faulkner assessed this to be a “highly inappropriate method of communication”. In view of this conclusion, she assessed that E “may have [caring] responsibilities beyond what is appropriate for her age”. As a result, she initially recommended a referral to a specialist family support service for further assessment and longer term parenting support.

Mr. Wise QC contends that this assessment of E’s exceptional family responsibilities is impossible to reconcile with Ms. Woolliscroft-Faulkner’s overall conclusion that E was not a child in need, and that Islington’s Child in Need team would therefore limit its involvement with the family to a transitional period of four weeks. This is said to be irrational and unlawful for four reasons:

These are, in my view, powerful arguments that demand a correspondingly compelling response. Islington has served a witness statement from Ms. Woolliscroft-Faulkner to elaborate on her reasoning, again without objection. As with Mr. Williams’ statement, I propose to approach the statement of Ms. Woolliscroft-Faulkner with caution, particularly since it purports to answer what I regard as a substantial complaint about the central thrust of her reasoning.

As regards the young carers’ assessment, Ms. Woolliscroft-Faulkner says this:

“The definition of a ‘young carer’ in subsection 3 of the Act is potentially very broad but I have interpreted it as requiring that the child provides a degree of care arising from the mother’s care needs. The conclusion I reached in my assessment was that [E] helps her mother in a way that goes ‘beyond what is appropriate for her age’ but I did not consider this to be care, within the Act because firstly, neither mother nor child considers it to be care and secondly, its need arises not primarily from her mother’s deafness, but from her parenting style. In other words the additional responsibilities that [E] adopts are not caring responsibilities but responsibilities that arise in a parent-child context, shaped by [C]’s parenting style.”

This is, to my mind, an unsatisfactory explanation for a number of reasons. First, Ms. Woolliscroft-Faulkner has put her own gloss on the statutory test for a young carer. Then, in applying her own understanding of the statutory test, she has adopted an illogical distinction between “inappropriate” responsibilities that arise from C’s deafness, and those that arise from her “parenting style”. I can find nothing in the Act or the Regulations which supports this approach. In any event, it is clear that E is catering for needs arising out of C’s deafness, whether or not C’s approach to parenting may have been a contributory factor. Thirdly, Ms. Woolliscroft-Faulkner has given (as her primary reason for concluding that E is not a young carer) an entirely irrelevant consideration, namely the fact that neither mother nor child consider her to be C’s carer. Such subjective assessments, made by the two people whose relationship was under scrutiny, and who could hardly be expected to understand the subtleties of the statutory definitions, play no part in the process of reasoning laid down by the Act and the statutory and non-statutory guidance. For Ms. Woolliscroft-Faulkner to advance this in a witness statement as the first reason for her overall conclusion that E was not a “young carer” seems to me to be seriously misguided.

Turning to the other criticisms set out in paragraph 233 above, Ms. Woolliscroft-Faulkner says that having initially concluded that an assessment by a specialist family support unit was called for, she then retreated from this position when she learned that C’s parenting deficits were to be (temporarily) addressed by a family support worker from Deafhope called Moona Mohammed:

“[S]ocial workers should always keep an open mind about changed circumstances. Hence, when I assessed that [C] and her children would benefit from family support work, I discussed this with [C] only to find out that a specialist family support worker (Moona Mohammed, a family support worker with Deafhope) was already due to be allocated to the family. [C] has indicated that she is very happy with the service provided by Deafhope and prefers working with deaf workers to hearing workers, therefore an additional referral service was not necessary. I cannot agree that this means that my assessment was unlawful, it means merely that I identified a need that could be fulfilled without the provision of local authority services, which was discussed with [C] and which is significantly less stigmatising for parents and families, who are often very aware of the assumptions and implications made when children’s social workers are involved.”

On a first reading, this explanation appears coherent. It is true that Islington was (or ought to have been) aware that the services provided by Deafhope were shortly due to be withdrawn. However, as I have already found, when considering Mr. Williams’s assessment, it is, in principle, open to a social worker to assess the situation on the basis of the current level of support available, subject to an obligation to review the assessment in the light of a significant change of circumstances.

A closer examination of this passage, however, discloses two significant reasoning flaws. The limited support that was to be provided by Moona Mohammed was clearly no substitute for the professional assessment by a specialist family unit that Ms. Woolliscroft-Faulkner initially deemed necessary, particularly since, as I accept, such an assessment could impact on the statutory tests applicable to both the young carers’ assessment and the care needs assessment. Moona Mohammed, a charity worker, was not in a position to conduct the kind of assessment that Ms. Woolliscroft-Faulkner had envisaged as being necessary in E’s case.

The obvious course was for her to arrange for such an assessment to take place, and to liaise with the unit concerned, in order to determine whether its assessment had a bearing on her application of the relevant statutory tests. Instead, Ms. Woolliscroft-Faulkner decided, having spoken with C, to abandon her recommendation and treat the family’s needs as having been sufficiently addressed (before, apparently, Moona Mohammed had even begun to work with the family).

Moreover, she appears to have treated C’s opinions as determinative of an assessment of E’s needs. That is not, to my mind, consistent with either of the statutory frameworks in play, which both require an objective and informed assessment of the child’s needs (not just the opinions of the parent) by an independent social worker. Ms. Woolliscroft-Faulkner was of course entitled to take C’s opinions and wishes into account. What she was not, in my view, entitled to do was to treat them as decisive in her assessment of E’s needs. Yet it appears that this was exactly what she did, since she reversed her own initial assessment of the situation, solely because C had expressed satisfaction with the services that had, up until then, been provided by Deafhope. These services did not include those that were scheduled to be provided by Moona Mohammed in the near future, so that Ms. Woolliscroft-Faulkner was not even in a position to assess the adequacy of Deafhope’s family support package. As with the earlier passage I have considered (see paragraphs 235 and 236 above) Ms. Woolliscroft-Faulkner seems to have lost sight of the fact that it was her responsibility to conduct an independent and objective assessment of the issues. Having concluded that C’s relationship with E involved the imposition of “highly inappropriate” responsibilities on E, and that this was in part due to C’s “parenting style”, she ought to have been particularly on her guard to ensure that she approached the statutory tests with rigorous objectivity (and, in particular, without undue deference to C’s views).

It is unnecessary for me to repeat the approach dictated by the authorities (see paragraphs 213 to 218 above). I am not persuaded that the explanations given by Ms. Woolliscroft-Faulkner provide a satisfactory answer to the criticisms of her decision-making made by Mr. Wise QC. I consider her reasoning in these two passages of her witness statement, taken together, to be misguided in the sense identified by Lord Neuberger in Moorhouse. I accept Mr. Wise QC’s submission that the flaws in her reasoning are sufficient to render her assessment of E’s needs legally invalid.

Ms. Woolliscroft-Faulkner reached a similar conclusion in relation to F (then aged 3 years and 7 months) and her younger brother J (aged 1 year and 4 months). The children are now four and two respectively. Neither were assessed as being “in need” within the meaning of section 17(10) of the 1989 Act. Mr. Wise QC attacks this conclusion on the basis of what, in my view, amounts to one central criticism. It is similar in nature to the criticism made in relation to the assessment of E’s needs. He points to the fact that Ms. Woolliscroft-Faulkner assessed both of the younger children to exhibit “speech delay” which she assessed to be due to the fact that neither child (being beneath school-age) had adequate opportunities to learn to speak at school. She recognised that “the absence of hearing spoken language from their mother will have contributed to the delay”. In F’s case, she noted that although she was over three and a half years old, and had “some words”, she was unable to form a sentence. J was making some sounds but was not yet able to form words, a deficit that was out of line with his developmental age. Ms. Woolliscroft-Faulkner also recorded the views of a health visitor, Mary Nye, that speech and language referrals were necessary for both children. On this basis, Mr. Wise QC argues that Ms. Woolliscroft-Faulkner could not reach a lawful, fully informed and rational assessment of either child’s needs until the speech and language referrals had been made, and their outcome considered against the statutory criteria in section 17(10) of the 1989 Act. He relies on the same legal principles as those he invoked in relation to the assessment of E’s needs.

Ms. Woolliscroft-Faulkner’s response depends heavily on developments that have occurred since the assessment took place. As a matter of general principle, evidence of subsequent developments will not, in the ordinary course of events, provide retrospective justification for an administrative decision. At permission stage, they can have a bearing on the court’s approach to the application of section 41 of the Senior Courts Act 1981. They can also often bear on the exercise of the court’s remedial discretion. However, the substantive legal validity of an administrative decision is usually to be judged by reference to the information that was available to the decision-maker at the time the decision was made.

However, in this case, Ms. Woolliscroft-Faulkner’s conclusions in relation F and J were essentially prognostic assessments of their future needs. In these circumstances, the subsequent developments outlined in her witness statement do seem to me to have a bearing on the question whether her initial assumptions about children’s future needs were reasonable at the time they were made. Her explanation is put in these terms:

“The broad response to this criticism is that (a) because their mother cannot speak to them they are likely to have an element of delayed speech, but (b) once they start at nursery school this problem is likely to be overcome. Indeed, this already appears to be the case for [F], who I and other professionals have observed to have made huge developments in this area over the last few months. Furthermore, the provision of speech and language therapy is a medical service provided by the NHS, and although Islington can have a role in signposting, referrals need to be made by health professionals. A referral has been made for [F] by the health visiting team, and it is expected that the same will take place for [J] once he is older and his speech delay more discernible.”

In the original assessment, Ms. Woolliscroft-Faulkner noted that at the time of her assessment F had already been referred to the speech and language service by Mary Nye. She also noted that F had recently been allocated a nursery place for 30 hours each week, that she was progressing well, and that she was “more than ready to begin this stage”.

Ms. Woolliscroft-Faulkner updated this information in her witness statement. She says that, according to multiple sources, F’s speech had noticeably improved by October 2016. In particular, the health visitor, Mary Nye, had reported that F’s speech and social development had come on “in leaps and bounds”.

Turning to J, the original assessment recorded that he was not yet at the “one word stage” which would be in line with his developmental age. Ms. Woolliscroft-Faulkner noted that this was in all likelihood attributable to his mother’s deafness. She went on to record that E’s spoken English was very good. She took this as a positive sign that with support, F and J would be able to “meet their milestones and develop their language skills”. In reaching her assessment as to their likely future development, she took into account the fact that an application had been made for a nursery place for J in the same nursery that F was already attending. She therefore predicted that their speech deficit would naturally improve with the support that was already being put in place.

Here again, Ms. Woolliscroft-Faulkner describes subsequent developments in her witness statement. She says that J has now settled well at nursery and was to be given a full-time place in April 2017. She records the fact that she had been advised by the health visiting team that he was too young to be referred for a full speech and language assessment, but that his annual review had revealed “no concerns”. Based on the progress made by F since starting nursery, she remains of the view that J is likely to make similar progress in speech and language now that he is at nursery, and as he gets older.

In my view, in this respect, Ms. Woolliscroft-Faulkner has provided a reasonable explanation for the prognosis on which she based her original assessment, and for the conclusion that she reached. The short answer to the central argument put forward by Mr. Wise QC is that when the original assessment took place, F had already been referred to the relevant services by the health visitor, who bore primary responsibility for ensuring that her speech deficit would be appropriately addressed; and J was too young for a full speech and language assessment, but was being regularly monitored by the relevant health professionals. Moreover, F had entered (and J was due to enter) nursery school, where their speech and language skills were likely to improve.

The question to be decided is whether it was open to Ms. Woolliscroft-Faulkner, on the basis of the facts as she assessed them to be, to conclude her assessment without awaiting the results of the referral that she initially thought necessary. In my view, for the reasons she gives, it was. She predictively assessed that the children’s communication difficulties were likely to resolve without the need for further support from the local authority. Subsequent developments have confirmed that her assessment on this issue was entirely reasonable. Indeed, as it happens, it has been borne out by events.

In contrast to Ms. Woolliscroft-Faulkner’s assessment of E’s needs, which. in my view, is flawed for the reasons I have given, an application of the same principles leads to the opposite conclusion in relation to the assessment of the needs of F and J. It certainly cannot, in my view, be said that no reasonable decision-maker could have adopted the approach that she adopted in the circumstances. Her decision to proceed with the child and family assessment in relation to F and J (without awaiting the results of a speech and language assessment) lies, in my view, comfortably within the sphere of lawful decisions that were open to her on the facts as she found them to be.

The claimant has succeeded in relation to Ground 1. She is entitled to a declaration that Islington acted unlawfully, in breach of section 6 of the Human Rights Act 1998, and in violation of her right to education under article 2 of the First Protocol to the European Court of Human Rights, by denying her the right to education for the cumulative periods set out in this judgment. She is also entitled to a remedy in damages. Damages are to be assessed in accordance with the procedure set out in paragraph 154 above.

The Claimant has also partially succeeded in relation to Ground 2. The care needs assessment and the young carers assessment in relation to E will be quashed for the reasons I have given. Ordinarily, it would inevitably follow from a quashing order that a fresh care needs assessment would need to be conducted in respect of E. However, since this judgment was circulated in draft, I have been informed that Islington has conducted a further assessment of the needs of E, J and F on 12 June 2017 (after the hearing but before the circulation of the draft judgment). I have been provided with a copy of that assessment form which it is apparent that Islington now accepts that each of three children does indeed qualify as a “child in need” within the meaning of section 17(10) of the Children Act 1989. There is accordingly neither need nor scope for a mandatory order requiring Islington to re-assess whether E qualifies as a child in need.

Nonetheless, the fresh assessment leaves untouched Islington’s conclusion, in the assessment under challenge, that E is not a “young carer”, within the meaning of 17ZA(c) of the 1989 Act. The record of the assessment of 12 June 2017 contains a section headed “Young Carer’s Assessment” but this reaches no fresh finding. It merely re-iterates the findings in Ms. Woolliscroft-Faulkner’s assessment, which has now been quashed. In these circumstances, it is appropriate to grant a mandatory order requiring Islington, as soon as reasonably practicable, to conduct a fresh assessment of E’s circumstances under section 17ZA(c), in order to determine (a) whether she qualifies as a young carer within the meaning of the 1989 Act, (b) whether she has any qualifying needs arising from this role, and (c) how those needs should be addressed by Islington. That assessment should be conducted with due regard to the flaws in Ms. Woolliscroft-Faulkner’s approach that are identified in this judgment.

The challenges to the care needs assessments in relation to C, F and J fail.

Having had an opportunity to consider this judgment in draft, Mr. Rutledge QC and Mr. Wise QC have each filed written submissions on costs. The differences between them are stark. Mr. Rutledge QC submits that there should be no order for costs in favour of E at all; Mr. Wise QC submits that she should be awarded her costs in full.

Mr. Rutledge QC’s primary submission is that the claimant should be refused any order for costs in her favour because the costs so far incurred on her behalf in establishing Islington’s liability (which are said to be approximately £90,000), together with the costs that are likely be incurred in the assessment of her damages claim (so far unquantified), will dwarf any figure she can expect to receive as just satisfaction under section 8(1) of the Human Rights Act 1998. Relying on the decision of the Court of Appeal in Anufrijeva v Southwark London Borough Council [2004] QC 1124, he submits that the combined current and future costs of both sides will yield a figure so disproportionate to the value of the compensation she is likely to receive, that she ought not to have brought the Human Rights Act claim in the first place. Accordingly, she should be disallowed her costs entirely. He further submits (and, on this point, I agree with him) that the first ground of challenge occupied by far the majority of the parties’ and the court’s time and effort.

Anufrijeva was a judgment of the Court of Appeal sitting en banc. The Court included the Lord Chief Justice and the Master of the Rolls. It considered the correct approach to the assessment of damages under the Human Rights Act 1998, and gave procedural guidance to the courts aimed at mitigating the potentially disproportionate relationship between the level of recoverable damages under the Act, and the legal costs attributable to the pursuit of such a claim through the courts. At paragraph 81 of its judgment, the Court issued guidelines to judges for the active case management of such claims. It identified a number of procedural means by which the court could mitigate and manage the risk of costs disproportionality.

In a judgment delivered by the Lord Chief Justice, the Court expressed its concern that, even if claims for damages were conducted as economically as possible, the costs incurred are likely be out of proportion to the relatively modest levels of damages awarded under the 1998 Act. It nonetheless recognised that claimants must have access to the courts to pursue claims under the Act; and that they are entitled, in the last resort, to a judicial determination of the just and appropriate remedy required under section 8. The Court of Appeal did not suggest that meritorious Human Rights Act claims ought not to be pursued if the costs are likely to exceed the damages. Nor did it suggest that successful damages claims should be rendered pyrrhic by a regime of penal costs orders. If the Court of Appeal had intended to lay down a costs regime of this nature, then it would plainly have said so in terms.

There is thus nothing in the judgment even faintly supporting Mr. Rutledge QC’s submission that a person whose Convention rights have been violated, should be precluded from having effective access to court, for the purpose of seeking a determination of the lawfulness of the conduct of a public authority, under section 6 of the Act, or that a successful claimant should be deprived of any award of costs, merely because the costs of the litigation are likely to exceed any damages that might be awarded. This is quasi-constitutional legislation and its primary object is to enable rulings and remedies to be granted in the national courts for violations of Convention rights.

That is the first answer to Mr. Rutledge QC’s submission. The second is that Anufrijeva is not concerned with the costs of establishing liability under section 6 of the Act. It is concerned solely with the costs involved in the quite separate inquiry, under section 8 of the Act, into the necessity of awarding damages as just satisfaction, and the level of damages to be awarded. Applying the analysis in Anufrijeva to the present case, the guidelines apply to:

That this is the correct approach is apparent from paragraph 81 of Anufrijeva. There are 6 points of guidance, each of them directed at judicial case management:

Returning now to the approach advocated Mr. Rutledge QC, I am bound to say that his submission is, in my view, utterly irreconcilable with the expressed intention of Parliament in enacting the 1998 Act. Parliament has provided a statutory mechanism by which individuals are entitled to seek judicial rulings and remedies in the domestic courts for any violation of their Convention rights by a public authority. Thus, any person who alleges that a public authority has acted unlawfully under section 6 of the Act may bring a claim in the appropriate court or tribunal as a matter of statutory entitlement. This is so, whether or not the application includes a claim for damages, or is likely to result in an award of damages. In all cases, the Act requires a judicial determination of an alleged violation and a just remedy (which may be no more than a declaration of breach). This reflects the fact that the statute is intended to serve the general public interest by establishing a protective regime for the judicial enforcement of fundamental human rights. The recovery of monetary compensation is not its primary objective.

Since an aggrieved claimant has a statutory right to pursue a claim under the Act for a judicial ruling that her or his Convention rights have been violated by a public authority (with or without an accompanying claim for damages) the approach advocated by Mr. Rutledge QC cannot be right. In a case where damages are not claimed (or likely to be awarded) there will inevitably be costs disproportionality because there are no damages to weigh in the other side of the balance. Yet Parliament nonetheless provided that such claims should be judicially determined as of right. The fact that such litigation is not, in essence, about money, is reflected in Parliament’s decision to establish a presumption against an award of damages in section 8(3), and its implicit recognition that a declaration of breach may, in itself, be sufficient to afford just satisfaction in some cases.

Self-evidently, there can be no question, in such cases, of excluding access to the court, or of penalising a successful claimant in costs, on the ground that s/he has not recovered sufficient damages to justify the costs incurred. In such cases, where damages are not claimed or awarded, the principle of costs proportionality has no meaning. The vindication of the claimant’s Convention right is sufficient justification in itself for incurring the costs of litigation. Mr. Rutledge QC’ extravagant interpretation of Anufrijeva also quietly overlooks the common law right of access to court for the purpose of vindicating fundamental common law (or constitutional) rights.

In his reply to Mr. Rutledge’s primary costs argument, Mr. Wise QC made the following submission:

“[I]t is important to consider the approach actually advocated by the Court of Appeal in [Anufrijeva]. At no stage did the Court of Appeal suggest that the courts should exercise their costs discretion in order to deprive successful parties of their entitlement (in principle) to all or part of their legal costs on the grounds of disproportionality to any damages award. Rather, what the Court of Appeal recommended was a form of active case management to ensure that costs are kept proportionate…That is precisely the approach that E has put forward in her written submissions of 27 June, proactively suggesting alternative dispute resolution to avoid the generation of unnecessary further costs in connection with the damages aspect of the claim. Anufrijeva therefore provides no support whatsoever for the approach to costs that [Islington] now advocates.”

I agree with this analysis, and reject Mr. Rutledge QC’s central submission that the claimant should be denied her costs altogether, or that they should be partially disallowed, by reference to a comparison between the quantum of any likely damages award, on the one hand, and the costs reasonably and necessarily incurred in pursuing an entirely legitimate claim for damages, on the other.

Mr. Rutledge QC’s fall-back position was that I should make an issue-based costs order under CPR rule 44.2(6)(a). He argues that the claimant should not receive her full costs on Ground 1 because I found it unnecessary to decide the article 14 argument. As regards Ground 2, he argues that Islington won on two of the issues before the court (the care needs assessments of C and E’s two younger siblings, F and J). Accordingly, he submits that there should be no order for costs in the claimant’s favour on the second ground. Overall, he suggests that the right approach is for me to make a percentage-based order and submits that any order for costs in favour of the claimant should be discounted by 50%.

I have carefully considered whether it is appropriate to make an issue-based order in this case. If I were to do so, my starting point would be that Ground 1 occupied approximately 70% of the Court’s time. I would not consider it appropriate to make any reduction for the fact that the discrimination claim did not succeed, for the reasons that I gave in concluding that it was unnecessary for me to decide the point (see paragraphs 144 and 145 above).

Turning to Ground 2, there were two decisions in issue. The first concerned the care needs assessment for C. Although I did not find for the claimant, I think the challenge was properly made for two reasons. At the time the litigation began, the decision was eminently vulnerable to challenge on the ground that Mr. Williams had decisively relied on the services provided by Deafhope, notwithstanding that this service was due to be withdrawn in the near future. The critical concession, that Islington would re-assess C’s care needs if the service were to be withdrawn, first came in Mr. Williams’ witness statement, served in the course of these proceedings. It was this concession that saved the assessment from being quashed for flawed reasoning. The claimant was, in my view, fully justified in initiating the claim on this basis in the first place. As regards the continuation of the claim thereafter, I cannot overlook the fact that the assessment under challenge was found to be defective in its reasoning in three important respects. In the end. these were not sufficient to persuade me that the conclusion itself must be stigmatised as irrational. However, it was not, in my view, unreasonable for the claimant to pursue the challenge. The assessment was, as I have said, seriously short on reasoning and left Mr. Williams and his employers open to the criticism that confronted them in these proceedings.

Ground 2 related to the joint care needs assessment of the three children. The claimant has succeeded on this ground, and the assessment has been quashed (albeit that the reasons for quashing it relate only to flaws in the assessment relating to E). The unsuccessful argument concerning F and J occupied very little of the court’s time. Although the argument, as it was framed by Mr. Wise QC, failed, it is perhaps of some relevance to note that on a recent re-consideration, all three children have been found to be “children in need” within the meaning of section 17(10) of the Children Act 1989 (albeit of course that this latest assessment was made on the basis of their current circumstances, and not those pertaining in the Summer of 2016).

Mr. Wise QC submits that the claimant should be regarded as the successful party in the litigation, that she has technically succeeded on both grounds, and that she should be awarded her costs in full, on a straightforward application of the general rule that costs follow the event: CPR rule 44.2(2)(a). In determining whether to depart from the general rule, the court should have regard to the (a) the conduct of the parties, (b) the extent to which a party has succeeded on part of his case even if he had not been wholly successful, and (c) any admissible offer to settle: CPR rule 44(2)(4). For the purposes of rule 44.2(4)(a) the conduct of the parties includes the question whether it was “reasonable for a party to raise, pursue or contest a particular allegation of issue”: CPR 44.2(5).

Mr. Wise QC drew my attention to the helpful summary of the relevant principles provided by Gloster J (as she then was) in HLB Kidsons (A Firm) v Lloyd’s Underwriters (Costs) [2007] EWHC 2699 at paragraphs 10 and 11. It is unnecessary for me to set the passage out in full. The relevant principles can be shortly stated. The court’s discretion as to costs is a wide one. The aim is to make an order that reflects the overall justice of the case. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, judged by reference to the litigation as a whole. The question of who is the successful party is a matter of common sense. The court may depart from the general rule, but should always give real weight to the overall success of the winning party. There is no automatic rule requiring the reduction of a successful party’s costs if s/he loses on one or more issues. In any litigation, any winning party is likely to fail on one or more issues in the case. As Clarke J. (as he then was) put it in Travellers’s Casualty v Sun Life [2006] EWHC 2885 (Comm) at paragraph 12:

“If the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. It is a fortunate litigant who wins on every point.”

I recognise that it is open to me on the facts of this case to make an issues-based costs order involving some small percentage reduction in the costs to be awarded to the claimant. In order to reflect the overall justice of the case, and the relative time and effort spent on the different grounds, any such reduction would, in my view, have to be very small indeed in percentage terms. However, I have decided, in the exercise of my overall discretion, not to adopt this course. The claimant has won in full on Ground 1, which occupied approximately 70% of the parties’ and the court’s time and effort. She has also succeeded on Ground 2. Although she did not succeed on all her arguments, it was, in my view, reasonable for her to take the challenge to C’s care needs assessment for the reasons I have given. The same is true in relation to the care needs assessment of F and J.

I do not consider that this is an appropriate case to depart from the general rule that the unsuccessful party should pay the costs of the successful party. Looking at the matter in the round, the claimant is, in my view, the successful party. Islington must pay her costs in full.