CO/5959/2004 
Neutral Citation Number: [2005] EWHC 753 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 18th April 2005
 
B E F O R E:

JAMES GOUDIE QC
(Sitting as a Deputy Judge of the High Court)

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THE QUEEN ON THE APPLICATION OF T
(CLAIMANT)

-v- 

(1) GOVERNING BODY OF OL PRIMARY SCHOOL
(2) SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL 
(DEFENDANTS) 
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MR S OLIVER (instructed by GREGORY ABRAMS DAVIDSON) appeared on behalf of the CLAIMANT
MR C RICHARDS (instructed by LIVERPOOL CITY COUNCIL) appeared on behalf of the FIRST DEFENDANT
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J U D G M E N T
Monday, 18th April 2005 
THE DEPUTY JUDGE:  
Introduction 
1.	This case is concerned with R.  She was born on 14th February 1997 so she is now aged 8.  The parents are Mrs T, the appellant on this statutory appeal, pursuant to section 11 of the Tribunals and Inquiries Act 1992, and Mr T.
2.	R has attended the OL Primary School since September 2001 when she was 4-and-a-half.  She has had a statement of special educational needs since then and was reassessed in early 2004.  The school is a mainstream primary school at which R is still on the roll.
3.	The complaint is that the OL school unlawfully discriminated against R.  On 29th October 2004 the Special Educational Needs and Disability Tribunal ("the Tribunal") dismissed the claim.  It is against that decision that this appeal, limited to points of law, is brought.  The Tribunal, which has not participated in the appeal, held that the actions of the school amounted to less favourable treatment, but that the less favourable treatment was justified under the Disability Discrimination Act 1995, as amended with effect from 1st September 2002 by the Special Educational Needs and Disability Act 2001 ("the DDA").
4.	The DDA has further been extensively amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673, with effect from 1st October 2004, and not materially for present purposes, although the amendments do affect the position under, for example, section 6 of the DDA to which I refer later.  It should also be noted that a Disability Discrimination Bill received the royal assent on 7th April 2005.
5.	The now familiar structure of the DDA is as follows.  Part I, sections 1 to 3, relates to disability generally.  Part II, sections 4 to 18, relates to employment.  In Part II section 4 sets out a general prohibition on discrimination against applicants for employment and employees.  Section 5 gives the meaning of discrimination for the purposes of Part II, considered by the Court of Appeal in Clark v TDG Limited [1999] IRLR 318 and which embraces the question of justification.  Section 6 sets out a duty upon an employer to make adjustments.  Examples of steps which an employer may have to take are set out in subsection (3).  The duty to make reasonable adjustments was a novel addition to discrimination law.  It renders a limited form of positive discrimination lawful.  Indeed, in certain circumstances, there is a duty to treat a disabled person differently and more favourably than others in order to compensate for the innate disadvantages associated with disabilities.  Further, failure to make adjustments may constitute an act of discrimination against a disabled person.  Liability for that discrimination is not contingent on a finding of less favourable treatment.  The two tests are separate and distinct.  However there is room for potential overlap as regards justification.  Part III of the DDA, sections 19 to 28, relates to goods, facilities, services and premises; Part IV, sections 28A to 31 relates to education; Part V relates to public transport, Part VI to the National Disability Council; Part VII is supplemental; and Part VIII contains miscellaneous provisions.  Another difference between disability discrimination law and other elements of discrimination law is that the expression "for a reason which relates to the disabled person's disability" in sections 5(1)(a) and 28B(1)(a) of the DDA, has broadened the description of the causative links from the links used in other discrimination acts.  It therefore includes causative links wider than those which would have fallen within the expression of "on the ground of" or "by reason of" the disability (see Rowden v Dutton Gregory [2002] ICR 971 at 973E to 974A).
6.	It is common ground that R has a disability under the DDA.  The less favourable treatment is various fixed term exclusions from the school on ten occasions, between one day and ten days, and totalling between 1st December 2003 and the 26th May 2004, 38 days.  The grounds for exclusion included biting a child on the arm, causing deep bite marks; hitting a child; head-butting a child; kicking another child; and on another occasion kicking and hitting a learning support assistant; and generally being out of control and a threat to parents and staff.  The exclusions, on any view, at least provided some respite to the school, its pupils and its staff.  As to when the actions of the school amount to less favourable treatment see M School v CC [2004] ELR 89, especially at "holding (2)" and paragraphs 39, 45 and 46.  Somebody who is not disabled and behaves properly is the proper comparator, not a person who is not disabled but behaves badly.  The DDA does not require the sort of like-for-like comparisons which are involved in the Race Relations and Sex Discrimination Acts.  
7.	R's statement of special educational needs notes that she has global developmental delay and associated behavioural difficulties.  She also has language difficulties.  She is hyperactive.  She can display temper tantrums.
The decision appealed 
8.	The tribunal concluded:
"2.  The question for Tribunal to decide was therefore whether the acts of less favourable treatment were justified or whether reasonable adjustments had not been made by the school.  We considered each separate act of alleged discrimination as to whether each acts of fixed term exclusion was justified by the school... 
...
"6.  Unfortunately, the series of fixed term exclusions do not appear to have been successful in addressing [R's] behavioural difficulties.  However, we were satisfied that the justification of the fixed term exclusions was both material and substantial.  The school is under a duty to protect other children with whom [R] is educated.  We were persuaded that the school could not tolerate [R's] disruptive and violent behaviour towards the other children.  This behaviour included hitting, biting and head butting and unless the school took immediate action, may have resulted in even greater injuries to other children.  The school is also under a duty to maintain discipline amongst its pupils and we were persuaded that the school had assessed the risks of [R] remaining in school.  It had taken necessary expert advice regarding this.  Although the fixed term exclusions do not appear to have addressed the behaviour problems, this fact does not mean that the school discriminated against [R].  The fact that provision is not of itself successful does not mean that it was not justified at the time.  It was right that the school continued with fixed term exclusions in order to protect other children and the staff and to maintain discipline.
"7.  We were persuaded that the school had made reasonable adjustments.  It had taken necessary advice and had involved outside agencies.  It is not for Tribunal to state whether the school could have done any more but it is difficult to see what further action the school, a mainstream primary school, could [have] taken by way of reasonable adjustments.  The assessment from [AG] had concluded that [R] should be in a small group of children for most of the day.  It is difficult to see how this could be accomplished in a mainstream primary school.  It would appear that expert opinion was that [R] was not appropriately placed in such a school.  We were not persuaded that the school should be under a duty to continue to employ a particular learning support assistant.  [R] did not appear to be able to relate to a LSA at the school.  The school was however carrying out the terms of the statement in providing full time support for her and it is not reasonable to expect the school to employ an assistant that is acceptable only to [R].  We do not accept the parents' argument that as they appear able to control [R] outside school, the school should adopt similar strategies.  The environments of home and school are completely different, and the demands on the child are not comparable.  The school had adopted strategies to address the behaviour in school based on experts advice.
"8.  We therefore concluded that the less favourable treatment by the school regarding all incidents of fixed term exclusions was justified.  The continuation of these was justified on health and safety and discipline grounds.  We also concluded that the school have made reasonable adjustments.  We therefore concluded that the school had not discriminated against [R] by reason of her disability."
Statutory framework 
9.	Part IV of the DDA, as I have said, relates to education.  In Part IV section 28A is concerned with discrimination against disabled pupils and prospective pupils.  Subsections (1), (2) and (4) provide: 
"(1) It is unlawful for the body responsible for a school to discriminate against a disabled person -
 (a) in the arrangements it makes for determining admission to the school as a pupil;
(b) in the terms on which it offers to admit him to the school as a pupil; or 
(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.
"(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
...
"(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily."
"Associated services" are not defined by the DDA.
10.	Section 28B deals with the meaning, for the purposes of Part IV, of discrimination.  It is in line with that applying in the rest of the DDA.  Subsections (1) and (8) provide: 
"(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if -
 (a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
... 
"(8) If, in a case falling within subsection (1) -
 (a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but 
(b) it fails without justification to comply with that duty, its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty." 
11.	Subsection (7) of section 28B therefore provides that less favourable treatment is justified only if the reason for it is both material to the circumstances of the particular case and substantial.  Subsection (8) provides that there cannot be justification under subsection (7) unless the treatment would have been justified, even if the reasonable adjustments duty had been complied with.  So that is the test to be applied. 
12.	Section 28C then goes on to require that disabled pupils be not substantially disadvantaged.  It provides in part:
"(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that -
 (a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and -
(b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
 (2) That does not require the responsible body to -
(a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or 
(b) to provide auxiliary aids or services.
... 
 (4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A."
13.	Section 53A is a reference to a code of practice prepared and issued by the Disability Rights Commission.  This is not legally binding but must be taken into account by responsible bodies such as the respondent governing body and may be referred to by courts and tribunals.
14.	The duty to make reasonable adjustments is expressed in similar terms to that imposed upon employers or service providers under Part II and III of the DDA as a duty to take steps to remedy arrangements placing a disabled person at a substantial disadvantage.  Compare, for example, section 6.  The duty to make reasonable adjustments does not, however, obviously appear to arise in relation to exclusions.  Contrast section 28A, subsections (1), (2) and (4) and section 28C(1).  Both sections cover admissions and education and services but there is no equivalent in section 28C to subsection (4) in section 28A.  However the duty to make reasonable adjustments may apply in relation to exclusions as being part and parcel of the provision of education and associated services.  The respondent before me does not argue that the adjustments duty does not apply to exclusions.
Code of practice 
15.	The relevant statutory code of practice for present purposes is the code of practice entitled "Code of Practice for Schools" issued by the Disability Rights Commission in July 2002.  Paragraph 6.30 of the code set out some of the factors which may be relevant.  Included in that paragraph are health and safety requirements and the interests of other pupils.  Further, the Department for Education and Skills has published guidance on exclusions from maintained schools in Circular 10/99 as amended, in particular with effect from 22nd March 2004 by Circular 87 of 2003.  The potential grounds for exclusion include, unsurprisingly, the commission of a disciplinary offence.  A pupil may also be sent home where he or she represents a serious risk to health and safety, and this is done for medical reasons.  Pupil exclusions were further dealt with at the material time by the Education Acts and by the Education (Pupil Exclusions and Appeals) (Maintained Schools) Regulations 2002 SI 2002/3178 made pursuant to the Education Act 2002.
Amended grounds of appeal 
16.	The grounds of appeal, as amended pursuant to permission of Collins J on 22nd February 2005, and as set out in the skeleton argument of Mr Oliver, counsel for the appellant, are as follows:
1.  The Tribunal erred in law in concluding that although they found that the actions of the school amounted to less favourable treatment, the less favourable treatment could be justified.  
2.  The Tribunal erred in law in concluding that there were no further or other reasonable adjustments which could or should have been made by the school.
3.  In determining whether there was less favourable treatment the Tribunal failed, contrary to the case law, to apply the proper test in relation to justification in that it came to the conclusion that the actions of the school were justified before it first considered whether or not there were any reasonable adjustments that could have been made.  
4.  The Tribunal failed, contrary to the case law, to consider whether or not there were any reasonable adjustments that could have been made, stating that it was not their job to consider the matter: in determining that they were not required to consider what, if any, reasonable adjustments could or should have been made, the Tribunal failed to apply the appropriate test and consequently failed to consider what could have been done; and 
5.  In concluding that the school was right to exclude R for health and safety reasons, the Tribunal failed to have any regard to the criteria in the guidance to schools on exclusions, which states that removal on the basis of health and safety can be done only for medical reasons.
Ground 1 
17.	Less favourable treatment can be justified only if it is for a reason material to the case and substantial, and (I will assume for the purpose of considering the appellant's arguments) if there are no reasonable adjustments that can take place.  If there are reasonable adjustments that can occur, it cannot be justified, and if there are reasons which are neither material to the case nor substantial, it cannot be justified.  These matters were duly considered by the Tribunal.  There was no self-misdirection in their approach, there was no error of law as alleged in their conclusion that the admittedly less favourable treatment was nonetheless justified in this case.
Ground 2 
18.	There was no error of law in their conclusion that there were no further or other reasonable adjustments which could or should have been made by the school.  The Tribunal did not have to go into minute detail about what adjustments there might have been (see the decision of the Court of Appeal in Electronic Data Systems v Travis [2004] EWCA Civ 1256, paragraphs 22 and 23).
Ground 3 
19.	The third complaint is one of two real issues on this appeal.  It is submitted that the Tribunal should have considered whether or not there were any reasonable adjustments that could have been made before addressing the issue whether the actions of the school were justified.  Approaching the two questions in that order it is said to be mandated by the DDA and by the case law, in particular the decision of the Employment Appeal Tribunal in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 556 (Mid-Staffordshire), and the decision of the Court of Appeal in Collins v Royal National Theatre Board [2004] EWCA Civ 144, [2004] 2 All ER 851 (Collins).
20.	Mid-Staffordshire however is simply not on the point.  It was a case on sections 4 to 6 of the DDA where the NHS Trust had failed to carry out its reasonable adjustments duty because they had not carried out any assessment to enable them to decide what steps would be reasonable to prevent Mrs Cambridge from being at a disadvantage. 
21.	In Collins, concerned again with sections 5 and 6 of the DDA, the Court of Appeal held that the DDA did not permit a breach of the duty to make reasonable adjustment to be justified by reference to factors which were already taken into account in deciding whether an adjustment was reasonable.  This again is a wholly different point.  The Court of Appeal in Collins stated the issue as follows:
"Can an employer's failure to make adjustments to accommodate a disabled employee be unreasonable but justified?"  
Collins was essentially a section 5(4) case before the justification defence in section 5(4) was removed. 
22.	Collins was followed by a differently constituted Court of Appeal in Law v Pace Micro Technology Plc [2004] EWCA Civ 923.  (Law).  In Law Mummery LJ said at paragraph 9:
"Once a failure to comply with the... duty to make adjustments has been established, it is for the employer, if he is able to do so, to establish a defence of justification."
So there are two cumulative matters, reasonable adjustments and general justification, general justification and reasonable adjustments.  Collins was also referred to with approval by Baroness Hale of Richmond, with whom the other members of the House of Lords agreed, in Archibald v Fife Council [2004] ICR 954 at paragraph 71.  Baroness Hale said:
"...the Employment Tribunal... did not address the question of reasonableness.  They did address the question of justification under section 5(2)(b), but did so without the benefit of the Court of Appeal's decision in Collins v National Theatre [2004] EWCA Civ 144 that the justification must be something other than the circumstances which are taken into account for the purpose of section 6(1).  As the council's redeployment policy is an important part of those circumstances, it should not be independently relevant as a justification under section 5(2)(b)."
So if the employer fails in the duty to make reasonable adjustments the employer cannot justify not making the adjustments, and if not making the adjustments is not justified cannot succeed in the justification defence in relation to less favourable treatment by reference to the circumstances which fail to make the adjustments other than reasonable.
23.	What the case law does not, however, deal with, is whether there is any, and if so what sequence that must be followed, in addressing the two issues of less favourable treatment and reasonable adjustments.  I am wholly unpersuaded that the legislative scheme, or the Code of Practice, or the guidance, are such that reasonable adjustments necessarily have to be considered before justification.  Nor can I, for my part, see that the order in which the Tribunal approached its task in any way undermines its substantive findings.
24.	Indeed, it seems to me that the way in which the Tribunal approached its task has much to commend it.  If there are no material and substantial reasons for the less favourable treatment (hurdle 1), there is no need to consider the question of reasonable adjustments.  If, on the other hand, there are material and substantial reasons, then these may be trumped by the reasonable adjustments test (hurdle 2).  Both hurdles had to be cleared by the school if it was to succeed in its defence.  The latter hurdle may often be the higher of the two.  In my judgment the Tribunal did not err in law in rolling the two questions into one in the way they did and then dealing with them in the sequence in which they did.  There is no inconsistency between the two conclusions and one is not invalidated because it is arrived at before the other.  This is simply not a case where a failure to make reasonable adjustments was found, but a defence of justification nonetheless somehow succeeded.  Justification was established, even taking into account the duty to make reasonable adjustments, in circumstances where there was, upon due consideration, no breach of that duty.
Fourth ground 
25.	The answer to this ground, the second real issue on this appeal, is simply that the Tribunal did not fail to consider whether or not there were any reasonable adjustments that could have been made.  They made their own objective assessment of what could be done by way of reasonable adjustments.  They did not make what would have been the mistake of looking at the reasonableness of the reasons given by the school.  Nor did the school have to do more by way of adjustment than what was reasonable.  It may be on the basis of the decision of the Court of Appeal in Jones v The Post Office [2001] IRLR 384, a section 5(1) case, that the Tribunal could, or should, have considered the question of justification of less favourable treatment subjectively.  Certainly on the basis of Collins they had to consider the question of the reasonableness of adjustments objectively.  In my judgment they did consider the latter, if not indeed the former as well, objectively.
Fifth ground 
26.	The final ground also is based on misconception.  Neither the code of practice, nor the guidance to which I have referred, prevent exclusion to protect the education and safety and welfare, including physical welfare, of other pupils, and to protect the welfare of staff, by seeking to maintain discipline and prevent assaults and injury.  This is not a case of health and safety in the sense of, for example, an infectious disease, and the Tribunal plainly did not so regard it on a fair reading of their conclusions as a whole.
Conclusion 
27.	There is, upon analysis, in my judgment, nothing of substance in any of the grounds.  I therefore dismiss this appeal.
28.	MR RAWLINGS:  My Lord, the only supplementary application is for costs for the first respondent in the usual terms.  There is some element of confusion as to the status of the appellant in terms of Legal Services Commission funding.  It may be that Mr Oliver needs to address you on that.  In the absence of the first respondent knowing the full picture, the order I would request is that costs are awarded to the first respondent and leave it at that.  If the appellant wants to make a cross-application, or to seek a variation of that once the Legal Services Commission's situation is clarified, then it ought to be incumbent upon them to do that later.  Unless you can be persuaded today that they have Legal Services Commission funding in place, then it should be the normal order that costs follow the event and the first respondent who has been successful on all points has their costs.
29.	THE DEPUTY JUDGE:  Yes.  Mr Oliver? 
30.	MR OLIVER:  My Lord, there has been a huge degree of confusion.  We thought we were publicly funded.  What happened was: there was an application for public funding, but for reasons we cannot understand, it was granted in the name of R and was for a judicial review application.  We told them that was wrong.  So then they issued it by letter telling us that they were unable to produce a certificate to cover section 11 of the Tribunals and Enquiries Act and therefore they gave us a letter but still in the name of the child.  Then we told them that that was wrong, and that the application should have been in the name of the parents because this is a statutory appeal, and unlike judicial review where sometimes it can be in the name of the child, it should be in the name of the adult.  It goes back as far as Westminster in 1995/96, when that issue was canvassed before the courts.
31.	THE DEPUTY JUDGE:  Although, of course, if it was the child who was the proper party, which, as you said, it was not, but if it were, then in general there would be no question about financial eligibility for Legal Services Funding, whereas, of course, once you correct the misconception and look at it in terms of the adult rather than the child, then the question is an entirely different party in terms of financial eligibility needed to be examined with whatever result.
32.	MR OLIVER:  My Lord, yes, and it is fair to say that the parent is not eligible for public funding.  That is quite simple.  But we have been telling them this in the area office for some time, that it has to be in the name of the parent if it was going to be for anything.  They carried on telling us that this was all all right and I was completely unhappy about this.  We had another go very recently with the public funding Legal Services Commission.  What they then did is they wrote to us on 13th April saying, "The central issue here is that the certificate is in the name of [R] whilst the proceedings have been altered in the name of [Mrs T] [which is what we had been telling them all along].  The certificate can only cover proceedings in the name of the funded client, it cannot cover proceedings in the name of another person. [Exactly].  The certificate may well have been granted on public interest grounds but it was still granted in the name of the child."  Because what they ended up doing, for reasons we did not understand, was granting it on public interest grounds.  
33.	So what they have done is they discharged the certificate as at 13th April.  My understanding is "discharge" is not the same as "revoke", although there is an issue that I think is still to be had with them as to whether we are, because of their mistake, covered up to and including 13th April.
34.	THE DEPUTY JUDGE:  Which was what?  Last Tuesday?
35.	MR OLIVER:  Wednesday.
36.	THE DEPUTY JUDGE:  Wednesday.
37.	MR OLIVER:  My Lord, yes.  Certainly it appears that they have accepted that they have made a mistake in all of this, and although they cannot say categorically that they would pay our costs on the certificate, they do think that there was a probability, and I put it no higher than that, that there is a case for an ex gratia payment to cover all costs involved up to the date of discharge due to the LSC's maladministration.  
38.	So, my Lord, that is where we are.  It would appear that, notwithstanding the fact that we have been telling them for months, they have it wrong.  They only discharged it last Wednesday.  
39.	My Lord, as to my client, she is not a wealthy woman.  She may well have lost this application, but, my Lord, I would invite you, given the fact that she would have to finance this herself, that the appropriate order would in fact, in this circumstance, be no order; that it would be inappropriate, in my submission, for the school to benefit from my client's bringing of these proceedings to the High Court.  It would be, in my submission, unreasonable, given that there was public funding of some sort up to last Wednesday, to make an order to pay the costs even from last week to include today.  
40.	My Lord, in my submission, therefore, I would invite the court to say that, given the fact that this was a matter of interest in relation to the child, and we are looking at it from the child's perspective, that no order would be appropriate.  If you are against me, my Lord, of course there would have to be a detailed assessment of any costs payable, because we are served with no schedule, we do not know what is sought or anything like that.  My Lord, I would invite you, in those circumstances, to say that it would be inappropriate for there to be any order in this case.
41.	THE DEPUTY JUDGE:  Thank you.  Mr Rawlings? 
42.	MR RAWLINGS:  My Lord, I am slightly confused.  I am trying not to be, but I am slightly confused.  From those instructing me I am told that we were never told exactly what the Legal Services Commission funding situation was.  There was a suggestion at one stage that there might have been a conditional fee arrangement.  So the first respondent was never clear, is all I can say, as to exactly what the position was, and had not been properly notified by the instructing solicitors for Mrs T as to exactly what was going on.  
43.	I thought I heard Mr Oliver say that the parents were not eligible for public funding.  If that was the case then they would have been advised very early on that the certificate in the name of the child was always going to be a certificate that could not -- 
44.	THE DEPUTY JUDGE:  Could not be assigned.
45.	MR RAWLINGS:  Yes.  Apart from the fact that the appeal right was in the parents' name.  So it may well be, and I say this only with some trepidation, but it may well be that Mrs T's position is one that she needs to sort out with her solicitor.  
46.	But from the perspective of the first respondent they have won on all grounds of appeal that were raised against them.  It is an onerous and expensive task responding to appeals of this nature, and at the end of the day the normal order would be that costs would follow the event and costs would be ordered against whoever has in fact funded this claim, irrespective of whether it is Mrs T or not.  So I would ask the court in these circumstances to make an order in favour of the costs of the first respondent, and, as I said earlier, if the appellant wishes to make any challenge to that order, based on the full understanding of the situation that she may find herself in, then she can do so.  
47.	The alternative would be for your Lordship to find that costs are ordered against the first respondent subject to the Legal Services Commission position that she finds herself in, and that if she was protected by that certificate for a certain time, that costs should not be ordered against her for that period but the normal lottery order would apply during that period; namely that any costs actioned against her would not be pursued without further order from the court, but that she is liable for the costs that are not protected by the Legal Services Commission funding certificate that she may or may not have in her favour.  
48.	It certainly is a very unfortunate position for her, but from the first respondent's perspective we believe that we should be entitled to our costs.  There no reasons here for not granting those costs to them.
49.	THE DEPUTY JUDGE:  Yes.  Anything further you would like to say, Mr Oliver? 
50.	MR OLIVER:  My Lord, we had pointed out from the beginning that it should not be in the name of the parents.  The Legal Services Commission seem to have granted it on the basis of a public interest case.  They then did it in the name of the child, although, as you heard, we were constantly saying that this is wrong; it is the wrong basis.
51.	THE DEPUTY JUDGE:  But what notification have you given at what stage to the respondent in relation to the Legal Services Commission funding position? 
52.	MR OLIVER:  We told them what information we had in January, or thereabouts, which is page 381 of the bundle, my Lord, which is the certificate that was given to us in January by the Legal Services Commission.
53.	THE DEPUTY JUDGE:  I have not looked at that.  In fact I do not have a 381, I have 380 to 382.  
54.	MR OLIVER:  My Lord, it is a Notice of Issue of Certificate granted by those instructing me.  It is between Mrs T and Legal Services Commission granted to R, substantive to cover the application for statutory appeal.  That was the thing that triggered me to say that it was in the wrong name.  It was also the thing that triggered the local authority to make representations to the Legal Services Commission which they did round about February time.  But the Legal Services -- 
55.	THE DEPUTY JUDGE:  That is the local authority in effect acting on behalf of the governing body of the school? 
56.	MR OLIVER:  My Lord, yes.  I gather they employed the legal department of the local authority.
57.	THE DEPUTY JUDGE:  Yes.
58.	MR OLIVER:  The local authority made representations to the certificate, but that apparently was dismissed without our being informed about it.  We only know, having spoken to the Legal Services Commission subsequently.  The decision that was communicated to us by this letter of 13th April, I gather from my instructing solicitor, was communicated to the Liverpool officer dealing with it; not by the school, but it has been dealt with by a litigation officer of the authority sitting behind my learned friend.  That was communicated to them last week.  So we have been trying to sort it out, to make it clear exactly what they thought they were funding us for.  They keep on thinking that they have been funding us for things that we keep on saying they should not have funded us for, and they keep on saying that they should.  
59.	My Lord, may I just take instructions?  (Pause) My Lord, just to confirm, the problem was that when this matter went before them they could not cope -- the system could not cope, apparently, with section 11 proceedings, it is an unusual process.  Our understanding is that they then granted it on a public interest basis.
60.	THE DEPUTY JUDGE:  But that would still involve, would it not, consideration of the financial eligibility of the party and was there any --
61.	MR OLIVER:  That I am not sure about, my Lord -- yes, it would -- sorry, might I just take instructions?  (Pause) My Lord, my understanding is that those instructing me were pursuing that with the Legal Services Commission, explaining that to them, when they then granted the certificate in the name of R, which is why we, again, told them that was not appropriate.  So we have spent our time, and my instructing solicitor has set out a file note of the number of times he communicated with the Legal Services Commission explaining to them what was wrong, and, again, Liverpool City Council made representations in February, which we knew nothing about.  But even then the Legal Services Commission gave the indication, as far as we were aware, that we were covered, my Lord.  
62.	As I say, I then invited my instructing solicitors to pursue it again very recently which is why the letter of 13th April says it was discharged from 13th April.  They accept from conversations that my instructing solicitor has had that they have mismanaged the situation and led us to believe we were covered when we were not.  Therefore, my Lord, they did say that although they could not be certain they would almost certainly be able to make an ex gratia payment of costs involved up to the date of discharge of the certificate.
63.	THE DEPUTY JUDGE:  Yes.
64.	MR RAWLINGS:  My Lord, I hesitate to prolong this discussion, but by way of clarification of the facts, on 7th February 2005 those instructing me wrote to Messrs Gregory Abrams Davidson regarding this case and including matters about the public funding situation.  They stated that the notice served on Liverpool City Council, this is a Legal Services Commission notice, appears to be defective: "The certificate has been issued in the name of R however your appeal notice has been drafted in the litigation friend's name.  Please clarify what funding arrangements are in place for this matter.  I would advise that I have written to the Legal Services Commission regarding this for clarification."  So those instructing Mrs T were notified that those instructing me were writing to the Legal Services Commission on 7th February and we did raise this issue about the Legal Aid certificate.  Only on 15th March was there a call from Gregory Abrams to those instructing me saying that the Legal Aid certificate has only been issued in the -- it says: "Stuart Lewis rang from Gregory Abrams Re: Legal Aid Certificate and it only being issued in the parents' name.  Although the parents are not entitled to Legal Aid they were granted it in public interest.  The Legal Services have no way of recording it on the system because it is an unusual case."  That does not get over the issue of eligibility.  Those instructing Mrs T should have known that a certificate cannot be issued in the public interest if you are not eligible financially.  It is interesting, but not very comforting, I do not think, for Mrs T.  From the first respondent's point of view, as I suggest, this matter needs to be sorted out between Mrs T and her solicitors.  The first respondent should receive their costs in the normal manner and then the issue of enforcing that will be dealt with by the parties.
65.	THE DEPUTY JUDGE:  Where have you got to by 13th April?  Had your brief been delivered for example? 
66.	MR RAWLINGS:  Yes.  We had a discussion on 13th April with Gregory Abrams and they did clarify, as far as they could then at the time, that there was some doubt about the status of the Legal Services Commission funding certificate.  The impression given to those instructing me was that the matter would proceed in any event because the appellant was very confident and that the issue of funding was something they would deal with later.
67.	THE DEPUTY JUDGE:  Yes.  So what are your alternative positions again?  Obviously your primary submission is that you are simply asking for an order for costs to be subject to a detailed assessment?  And your fall-back position again?
68.	MR RAWLINGS:  An order for costs against the appellant subject to any protection she may have pursuant to Legal Services Commission funding.  That would mean, obviously, that while she is protected any costs incurred would have the Legal Services Commission funding indemnity.
69.	THE DEPUTY JUDGE:  How would that operate as a matter of practicality? 
70.	MR RAWLINGS:  One presumes that if the Legal Services Commission do decide that they were funding Mrs T and indemnifying her, an ex gratia payment would not be enough in indemnifying her against the costs of the respondents.  If they were doing that up to 13th April she would be protected up to 13th April.  If they were not doing that after 13th April any decision to proceed in the knowledge of an uncertain funding arrangement would lie with her and her advisers.  So therefore costs after 13th April should be awarded against her personally.
71.	THE DEPUTY JUDGE:  How will the matter then be resolved if the position was still one of uncertainty? 
72.	MR RAWLINGS:  Depending what order you make, my Lord -- 
73.	THE DEPUTY JUDGE:  If I make an order simply in your favour then that is straightforward.  If, on the other hand, one makes an order that is subject to any protection that Mrs T might have pursuant to LSC funding, then you may incur further costs in terms of a detailed assessment of what the quantum of the costs are.  Then I suppose you would be able to proceed to enforce your order for costs and it would be at that point incumbent on Mrs T's side to say that the protection did apply.
74.	MR RAWLINGS:  That is right, my Lord.  Obviously in terms of practicalities, because those instructing me do not want to spend money recovering costs they do not need to, if they are provided with a clarification from the Legal Services Commission that Mrs T was covered up to a certain moment in time, they would expect the lottery order to apply for that period in time.  They would not be seeking to recover costs that they are not entitled to, subject to the lottery order.  
75.	It is a most unfortunate situation and that is why my preferred order is costs to the first respondent and the appellants, who really have brought this upon themselves, can deal with the implications of that and consequences.
76.	THE DEPUTY JUDGE:  Yes, thank you.  Mr Oliver? 
77.	MR OLIVER:  We have not brought it on ourselves, my Lord.  We were led to believe, by the Legal Services Commission, to the approach -- covering that it got on.  I can see that subsequent to 13th April it is a completely different matter; that she was not publicly funded under any shadow of doubt from 13th April or thereafter and therefore the costs of effectively the hearing are at large.  What we are unclear about, because the Legal Services Commission said that we needed to wait until after the hearing to clarify, which is completely unhelpful, is that they believe that we will be covered for the work that we have done.  Whether that means that we will be covered for a cost order against Mrs T is unclear, my Lord.  My instructing solicitor indicates that it probably means that we would -- my Lord, I do not know if you heard that?
78.	THE DEPUTY JUDGE:  No, I heard the words "ex gratia", but, of course, they might cover your costs, query whether they would cover the costs on the other side.  One might go round in a circle there, of course.
79.	MR OLIVER:  My instructing solicitor approached this with the Legal Services Commission when they decided they got it all wrong and the answer is, yes, it would appear they are covered, it is covered, but I cannot be certain about that my Lord, and I cannot be certain until after the case and an order is made.  
80.	What I would invite you to do, if you are going to make an order, is that obviously as a publicly funded person, in the normal course of an event, any order against could only be if she receives any money and there is an order in the County Court saying she is able to do so under section whatever it is of the new Legal Services Act, section 17 of the Legal Aid Act.  So I would invite you to draw a distinction between before and after 13th April, my Lord.
81.	THE DEPUTY JUDGE:  Yes, I will do that.  What I am going to do is I will make an order in two parts.  The first part is that the appellant should pay the first respondent's costs after 13th April 2005 in any event, and the second part of the order is that she pay the first respondent's -- or maybe the second respondent -- but the school's costs, up to and including 13th April, subject to her having liberty to apply within 14 days with a view to establishing that she is protected pursuant to LSC funding.
82.	MR OLIVER:  My Lord, one point of clarification, liberty to apply, would that be to you?
83.	THE DEPUTY JUDGE:  Not necessarily.  It may be more convenient if it comes back before me, and I am sure any other judge would take that view, and no doubt arrangements could be made for me to sit, although I probably would not otherwise be doing so.  So I will not formally say that it must come back before me, but it is probably better that it should be listed accordingly if it needs to come back.  Hopefully you will either be able to demonstrate to the City Council that you do have the protection, and they will accept that the first part of the order is enforceable and the second part not, or, alternatively, you will recognise that you did not have the protection and therefore both parts of the order are in effect.  The matter will need to come back before me only if there is a difference between you as to whether or not the protection applies.
84.	MR OLIVER:  My Lord, could I invite you, in any event, although you do not say it, that any order for costs should be subject to detailed assessment? 
85.	THE DEPUTY JUDGE:  Yes.  Absent, again, agreement.  Certainly not a summary assessment today in the absence of any schedule of costs.  Of course there is no criticism, and there is not one, since it was unclear whether or not the appellant was subject to legal services funding.  In any case the case was estimated, rather generously perhaps, at a day and a half.