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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HA, R (on the application of) v Hampstead School & Anor [2016] EWHC 278 (Admin) (18 February 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/278.html Cite as: [2016] WLR(D) 104, [2016] ELR 125, [2016] EWHC 278 (Admin), [2016] PTSR 954

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 February 2016

Mr Ben Emmerson QC :

Introduction

1. The Claimant is 16 years of age and is currently on the roll at Hampstead School, a community school maintained by the London Borough of Camden ("the school"). Until the end of Year 10 the Claimant had been studying for 7 GCSE examinations. On 21 May 2015 the school made a decision to transfer him to off-site educational provision at The College of North West London, based in Brent ("the college"). Under these arrangements, the Claimant would no longer be able to pursue a full range of GCSE studies but would, instead, be required to undertake vocational training linked to various forms of manual work (e.g. bricklaying, plastering, motor vehicle maintenance and plumbing) together with core GCSE level equivalent studies in two subjects (Maths and English) and Level 1 Applied Science. Pupils transferred to off-site education remain on the school's roll and are included in their performance statistics. The Claimant attended the college initially, but was so unhappy about the transfer that he ceased attending altogether and was, at the time of the hearing in this matter, for all intents and purposes, out of education altogether.
2. The Claimant's challenge is directed to (a) the school's initial decision to transfer him to off-site educational provision, and (b) its alleged failure to keep that decision under review as required by Regulations 4 to 6 of the Education (Educational Provision for Improving Behaviour) Regulations 2010. By order of Picken J. the challenge came before me as a rolled-up hearing on permission and merits. At the outset of the hearing I made an order that the Claimant and his father were to be anonymised in any report of the proceedings.
3. In relation to the initial transfer decision, there is controversy as to the identity of the decision-maker. The Claimant contends that the decision was in fact made by Glen Stevens, the Inclusions Manager at the school, and that it was improperly delegated to him (the "improper delegation" point). The school, on the other hand, contends that the decision was taken by the Head Teacher, Mr. Jaques Szemalikowski, on advice from Mr. Stevens. It is to be noted, in this context, that the school's summary grounds of resistance (at paragraph 6) positively aver that "[t]he decision was made at a meeting attended by [the claimant's] father and Mr. Glen Stevens, the Inclusions manager at the school". A gloss has been put on this concession in a statement made at a late stage in these proceedings by Mr. Szemalikowski. I examine this evidence and its consequences for the Claimant's improper delegation argument below.
4. In addition to this preliminary challenge, the Claimant contends that the initial decision was flawed for failure to follow the prescribed procedure laid down in the Education (Educational Provision for Improving Behaviour) Regulations 2010 (the "procedural protection" point). It is common ground that the school did not serve the mandatory notice, required under Regulation 3, and that this rendered the decision unlawful. However, the school contends that this could have had no material impact on the outcome and that accordingly the Claimant should not be granted permission or, if he is granted permission, he should be denied relief on discretionary grounds. The relatively straightforward question for decision on this aspect of the challenge is whether the adoption of a lawful procedure might have led to a different result. Since the point is central to the Defendant's argument that permission should be refused under section 31 of the Senior Courts Act 1981, and has a direct bearing on the question of disposal, it will be necessary to explore the facts in a little detail.
5. As to the failure to keep the placement under review, the Claimant maintains that the school failed in its duty under Regulation 4 of the 2010 Regulations and had, in effect, fettered its discretion to reconsider the placement, by deciding to transfer the Claimant for the remainder of the academic year without regard to his lack of progress at the college (the "failure to review" point). The school had clearly conducted no meaningful review of the Claimant's progress at the college after the transfer. By the time of the hearing, it had already paid the fees to the college in full for the whole of the academic year (which is alleged to be evidence of a closed mind on the issue of review and reconsideration).
6. For its part, the school contends that the Claimant's non-attendance at the college meant that any review was inevitably pointless (since there was no evidence of the Claimant's progress on which it could be based). I will return to these issues, and a number of other related questions, towards the end of this judgment.

The Claimant's educational history

7. At the time the decision was made to transfer the Claimant for off-site educational provision he was not excelling academically, but neither was he demonstrably and unequivocally failing. A fair overall assessment is that he appears to have been struggling to cope with a number of combined pressures, but that he had not given up his ambitions to obtain good qualifications at GCSE level. At the end of Year 10, his actual achievement levels were the equivalent of three D's, three F's and one P grade at GCSE level. These results were significantly below his predicted end of year grades, but they showed a marked improvement when compared to his grades at the beginning of Year 10. In summary therefore it would seem that the Claimant had made some progress during Year 10, despite the school's recorded concern that he was drifting. At this point, it must be recalled, there was still a year to go before his GCSE exams during which time there was obviously some potential for further improvement.
8. However, the stated reason for the school's decision to transfer the Claimant off-site was not his academic performance, but his disciplinary record. The transfer was said to be necessary in order to improve his behaviour and prevent permanent exclusion. Since this was the justification for the school's decision, it is necessary to analyse the Claimant's behavioural record to determine the extent to which this assessment is borne out.
9. It certainly seems clear that during the course of Year 10, the Claimant's behaviour had deteriorated. He had become intermittently challenging and, on some occasions, actively disruptive. However, during the course of the hearing I formed the impression that the school may have overstated the severity of the Claimant's misbehaviour, particularly in the 12 month period running up to the decision to transfer him off-site. I therefore invited counsel for the school to take me through the disciplinary records and to address me on them in detail.
10. In September 2013 the Assistant Head Teacher wrote to the Claimant's parents indicating that, in light of poor behavioural reports, the school had put the Claimant on a behavioural monitoring report. On 18 November 2013 the Claimant was put on a pastoral support programme by the school. Such programmes are designed to support pupils who have been identified as being at risk of permanent exclusion. The review documentation is sparse on detail and consists of an aggregation of selective comments from unidentified teachers. In the positive behavioural part of the form it records that the Claimant was respectful, polite and reasonable when spoken to, and that he participated well in group learning. Nonetheless it also records low level disruption, play-fighting with peers, distractibility and day-dreaming. This mixed picture is a theme running through the records. The Claimant's academic record is said to reflect no real progress, although one unidentified teacher recorded "some progress" and the Geography teacher noted that he had "genuine interest in the subject". The report's rather bleak view of the Claimant's overall academic position does not appear to be fully reflected in his grade improvements as the year progressed. Notwithstanding the open language in which this appraisal is expressed, internal records show that as early as 13 November 2014 the Claimant's name already appeared on a list of pupils who had been provisionally earmarked for alternative educational provision.
11. The school's evidence included a full disciplinary record. During Year 9, the Claimant had received three relatively short external exclusions for playground fighting (the last of these being on 18 July 2014). During Year 10 he had received eight internal exclusions for conduct such as playing "money up", a playground game that was banned at the school (described as "gambling" in the record); failure to collect his report card; and failure to follow instructions. Significantly, he received no external exclusions at all during Year 10. The last external exclusion was thus almost 12 months before the decision was taken to refer him to off-site educational provision. Mr. Szemalikowski described these offences, in is first witness statement as "a long history of very poor behaviour". In my judgment, the picture, whilst clearly unsatisfactory, does not disclose recent or consistent disciplinary offences of such gravity as to compel a rational decision-maker to conclude that off-site educational provisional was the only way forward. It does not necessarily follow that such a conclusion would be irrational, but it is in my judgment quite clear that rational decision-makers could reasonably take a different view of these facts. The evidence of the Claimant's father was that the Claimant's conduct was bad in years 7 to 9 but that it improved in year 10. This would seem to be a reasonable reflection of the records.
12. In his witness statement the Claimant states that staff at the school would warn pupils who misbehaved that they were liable to be transferred to off-site provision at the college if they failed to perform academically, or if they failed to change their behaviour. His perception was that these warnings were threats of punishment, although this is strongly denied by the school.
13. On 22 January 2014 the Claimant's father was informed that the school had referred the Claimant to Camden's Key Stage Three Re-engagement Programme, a seven week behavioural modification programme run by the local authority. The Claimant completed the course (prior to the end of Year 9) and returned for successful re-integration into the school.
14. On 10 November 2014 a work review meeting was held at the school which was attended by the Claimant's father. The question of a college placement was discussed and the school emphasised that this would put boundaries in place to support the Claimant, providing one-to-one mentoring and smaller class sizes.
15. On 23 January 2015 Sue Farr, Head of Year 10, consulted the Claimant's teachers on his progress, with a view having a conversation with his parents about the options. The only recorded response came from the Claimant's English teacher who indicated that he was disengaged and making poor progress. However, she went on to say that the Claimant had tried very hard up to Christmas and had made good progress. She also recorded that he wanted to do well and get a C grade. The picture was, once again, mixed.
16. On 27 January 2015 a pastoral support plan review took place, attended by the Claimant and his father. At this meeting a college placement was again discussed as an option.
17. On 23 March 2015 Mr. Stevens recorded a conversation with the Claimant's mother in which he told her that the school had continuing concerns about the Claimant's poor attitude to learning and informed her that he was still under active consideration for a college placement in September 2015.
18. On 18 May the school recorded a disciplinary incident in which the "usual suspects" (including the Claimant) had been caught playing "money up" again (this is one of the incidents recorded in the disciplinary record at para. 11 above).
19. On 21 May 2015 the Claimant's father was called to a meeting to discuss the options for his future. The school's evidence is that the Claimant's father reluctantly agreed during the meeting that the Claimant should be transferred to off-site educational provision. The father denies that he gave his consent, but it is not necessary for me to resolve this dispute since nothing turns on it.
20. The meeting was attended by Glen Stevens who either made, or at the very least communicated, the decision to transfer the Claimant to the college during the course of the meeting (see para. 4 above). The stated reason for the transfer was that the school had formed the view that it was in the Claimant's best interests. This meeting was followed up by a letter dated 25 May 2015 formally confirming the decision to refer the Claimant with effect from September 2015.
21. Complaints from teachers about disruptive behaviour continued after the decision was made. The attitude of at least some of the teachers to off-site educational provision in this context is apparent from an email dated 10 June 2015 from a teacher called John Connolly. Commenting on the position of another student who had been misbehaving with the Claimant, Mr. Connolly said this:

"He is well and truly back to his old ways. I feel like he thinks he got away with it when he narrowly avoided being sent [to college] some months ago."

If views of this kind were communicated to pupils it would perhaps be unsurprising to discover that the Claimant had been left with the impression that off-site transfers were being used as a punishment rather than as a tool of carefully balanced educational provision (although I stress that there is no allegation or evidence of improper motive here).

22. On 3 September 2015 the college sent a letter to the Claimant's parents indicating that he had been accepted onto the Level 1 Vocational Course and should attend on Monday 14 September where he would be met at reception. The letter indicated that the Claimant would study a range of vocational subjects including motor vehicle mechanics, painting and decorating, bricklaying, carpentry, plumbing and electrical engineering, as well as studying English and Maths at the appropriate level, PE and Level 1 Applied Science.
23. The Claimant attended two induction meetings for the school. He then enrolled on 14 September 2015. According to the Claimant's evidence, one of the teachers told him that he would only be able to study a single GCSE in Maths. The Claimant began to cry and left the college. He has not returned since then and, according to his father, he has remained at home in his bedroom for most of the time. The father has made a number of attempts to find alternative educational arrangements, but has been frustrated by the fact that the Claimant remains on the roll at the school. His concerns about the impact on the Claimant are summarised in his witness statement:

"[The Claimant's] mother and I are now really worried about [the Claimant]. He has been absolutely distraught since he was given the news last July, and he is getting worse every day. [The Claimant] spends most his time in his room. He rarely comes out to speak to us. He even refused to come out of his room when his friends came to visit him. He sometimes refuses to eat food we bring to his room."

The improper delegation point

24. The procedural rules governing a decision to transfer a pupil to off-site provision for behavioural reasons are set out in section 29A of the Education Act 2002 and in the Education (Educational Provision for Improving Behaviour) Regulations 2010, as amended. Section 29A(1) provides that

"the governing body of a maintained school in England may require any registered pupil to attend at any place outside the school premises for the purpose of receiving educational provision which is intended to improve the behaviour of the pupil".

In principle, therefore, the authority to order an off-site transfer lies with the Board of Governors. However, DFE Guidance issued in November 2014 makes is clear that in matters of internal organisation, management and control of the school (including off-site placement) the Head Teacher is authorised to exercise delegated authority without reference to the Governors.

25. An issue arose during the course of the hearing as to whether the Governors had properly delegated their statutory authority to the Head Teacher in relation to the decision to make off-site provision in this case, or generally at the school. Counsel for the school was unable to identify any record minuting a formal decision to delegate. Nonetheless, I am prepared to infer that the Governors had in fact delegated their authority for such arrangements to be made where necessary, both because it is consistent with the evidenced practice at the school, and because it is consistent with the DFE guidance. I would expect the Governors to be kept informed of the data in relation to such placements, but there is nothing before me to indicate any procedural requirement for a minuted decision to delegate.
26. The more difficult question relates to the role of Mr. Stevens. There is no basis in the legislation or guidance to infer any authority to defer the decision-making power to a member of school staff other than the Head Teacher. As I have already pointed out, the Summary Grounds of Resistance state in terms that the decision was made at a meeting at which Mr. Stevens was the only staff member present. Taking this assertion at face value, the clear implication is that the decision was made by Mr. Stevens. If that were right, then it would amount to improper delegation. Mr. Stevens would have had no authority to make the decision.
27. Mr. Szemalikowski made two witness statements for these proceedings but neither of them expressly affirms that he personally made the decision. In his second witness statement he cites the DFE Guidance indicating that Head Teachers may make decisions in connection with off-site provision without reference to the Board of Governors and he goes to describe the decision as being finally made in June 2006. But he stops short of the simple assertion which could put this point to rest.
28. I have not found this issue at all easy to decide. Accurate record-keeping is essential when important decisions are being made that may have a significant impact on a pupil's future and well-being. Nonetheless, I have come to the conclusion that when one looks at the history as a whole, the decision was clearly taken over a period of time following consultation with a large number of staff members, culminating in the final communication of the decision to the Claimant's father at the meeting with Mr. Stevens on 21 May 2015. Counsel for the school told me on instructions that the decision was taken by Mr. Szemalikowski personally. I would be reluctant to base a decision on the submissions of Counsel unsupported by evidence. However, there was some evidential basis for the submission. Counsel was able to point to the passage in Mr. Szemalikowski's second witness statement in which he referred to the power of the Head Teacher to make such decisions without reference to the Board of Governors. As she rightly submitted, that passage carries the necessary implication that Mr. Szemalikowski must have taken the decision himself in this case. It would otherwise be seriously misleading. Despite the apparently clear language used in the Summary Grounds of Resistance, I am not prepared to draw an inference that Mr. Szemalikowski was intending to mislead the Court.
29. In those circumstances, this ground of challenge fails. If I am wrong on the primary basis for my finding, I would also hold that even if the challenge was well-founded it would not have resulted in a materially different outcome. I say that because Mr. Szemalikowski clearly supported and has vigorously defended the decision. Even if the decision had been wrongly taken by Mr. Stevens, there could not be any realistic suggestion that the result would have been any different if Mr. Szemalikowski had taken it personally.

The procedural protection point

30. Section 29A(3) of the 2002 Act imposes a mandatory obligation on the Secretary of State to make regulations relating to external educational provision for behavioural improvement. These regulations must include provision as to the information to be provided to parents (and other prescribed persons) and must impose a requirement on governing bodies to keep any off-site transfer under review. The inclusion of these two obligations in the parent legislation is an indication of the importance to be attached to them. The 2010 Regulations give effect to both obligations. For the present I will focus on the notice provisions. Regulation 3(1) provides that where a governing body makes a decision to transfer a pupil under the age of 18 for off-site educational provision they must, as soon as practicable after the decision was made, give the parent (and any other prescribed person) a notice setting out certain particulars including (in 4(a) to (e)) the address, the name of the person to whom the pupil must report, the number of days the transfer is set to last for, the reasons for and objectives of the transfer, and certain other details.
31. In the present case no such notice was given by the Board of Governors, the Head Teacher or the school. The college itself sent a letter on 3 September 2015 (see para. 22 above) but coming as it did from the college rather than the school this was incapable of satisfying the duty laid down in Regulation 4 and did not, in any event, include all of the necessary information. The bare facts about the date and place at which a pupil is to report is not sufficient. The most important piece of information required by a notice under Regulation 4 is the reasons for and objectives of the transfer. By requiring the decision-maker to address his or her mind to these key criteria, the notice imposes a requirement that is designed to promote fair and accurate decision-making, to ensure that the decision-maker has taken account of all and only relevant considerations, and to ensure that the best interests of the child have been centrally reflected in the reasoning. Like all duties to give reasons, it promotes sound decision-making.
32. Section 29A(1) of the 2002 Act requires that off-site educational provision must be "intended to improve the behaviour of the pupil". This plainly requires that individual consideration must be given to the needs of the particular pupil and how the particular off-site provision is likely to improve the behaviour of the pupil in question. This implies (a) an assessment of the pupil's behavioural needs, (b) an assessment of the provision required to meet those needs, and (c) an assessment of why the proposed off-site provision can meet the assessed needs. These are the very questions that must be addressed in the notice required under the regulations.
33. Counsel for the school argued that this breach of duty was essentially technical and it could not have made any difference to the outcome. She has drawn my attention to the provisions of section 31(3C) of the Senior Courts Act 1981 which provides that when considering whether to grant permission to apply for judicial review the Court must (if asked to do so by the defendant) consider whether the outcome would have been substantially different if the conduct complained of had not occurred. I readily accept that permission should not be granted if the flaw in a decision is of a purely technical character or could not have impacted on the outcome. This is an essentially similar test to that which the Court applies when deciding whether it should grant discretionary relief in such cases.
34. I do not however agree that the present case is an appropriate one in which to apply the principle. Whilst there was evidence of poor behavioural standards over a period of years, the Claimant's behaviour appeared to have improved in the twelve months prior to his transfer and the academic picture was mixed. I am far from satisfied that a reasonable decision-maker addressing his or her mind to all and only relevant factors would inevitably conclude that the proposed transfer would address the Claimant's behavioural needs and would be in his best interests. The central flaw in the present case was a failure to formulate and communicate the reasons for the transfer and the objectives it set out to achieve. These are the very questions which remain opaque on the evidence when all of the considerations pointing in both directions are taken into account. Accordingly this ground of challenge succeeds. I will consider the appropriate relief at the end of this judgment.

The breach of guidance and/or irrationality challenge

35. Regulation 8 of the 2010 Regulations provides that a governing body exercising functions under section 29A(1) of the 2002 Act "must have regard to any guidance given from time to time by the Secretary of State". In 2013 the Department for Education issued such guidance, known as "Alternative Provision: Statutory Guidance for Local Authorities". The Guidance (at para. 30) imposes a standard of "good alternative provision". It requires that the off-site provision should be such as "appropriately meets the needs of pupils and ... enables them to meet good educational attainment on par with their mainstream peers". Making allowances for the needs of different pupils, the regulations provide that alternative provision should aim to achieve, amongst other things:

"...good academic achievement on par with mainstream schools – particularly in English, maths and science (including IT) – with appropriate accreditation and qualifications."

36. This standard ("on par with mainstream schools") is re-emphasised in relation to the same three subjects in Paragraph 39 of the Guidance. Paragraph 37 directs the Governing Body to make an assessment of the adequacy of the alternative educational provision before a transfer is made.
37. Counsel for the Claimant argued that the facilities available at the college in the present case fell obviously short of these standards and that the Claimant's off-site placement was therefore an unexplained departure from statutory guidance or was otherwise irrational. The crux of her submission was that the expression "on par with mainstream schools" implied that the full GCSE national curriculum should be available, and that accordingly an off-site transfer which deprived a pupil of the opportunity to study for a full GCSE course was inconsistent with that standard.
38. I am unable to accept this submission. Educational provision must of course be tailored to the needs and abilities of each pupil, subject to the core irreducible minimum spelt out in the Guidance. Providing facilities are available which provide a good standard of education in English, Maths and Science up to GCSE standard (if that is appropriate for the individual pupil), the Guidance leaves providers with an area of evaluative judgement, so that educational provision can be tailored to the needs of the individual. Not every child in mainstream education is able to sit for a full range of GCSE's. It cannot be said that education "on par" with the mainstream necessarily and always implies a minimum specified number of GCSE subjects for all students. The required provision is more nuanced and tailored than that.
39. The standard of provision that is available at the college includes English, Maths and Science. There is no evidence before me capable of establishing that the educational standards available in those three core subjects falls below that which would be available for a child with comparable ability in mainstream education.
40. That is not to say that the overall provision made at the college in relation to other academic subjects is necessarily adequate to meet this individual pupil's educational needs, or that it is on par with the standard of education he was receiving (and would receive) in mainstream schooling. The Claimant was studying (albeit with mixed results) for 7 GCSE's and he had shown some improvement in his grades. It is far from obvious on the evidence that the educational provision at the college was the optimum available to meet his needs. Nor is it obvious that his transfer was strictly and inevitably necessary for behavioural reasons (see para. 34 above). Certainly, the substitution of vocational training for academic study restricted his opportunities significantly. There is nothing in the evidence filed by the school to demonstrate clearly that in reaching this decision they actually treated the Claimant's best interests as paramount. It will be apparent, therefore, that I have real reservations about the appropriateness of the decision that was taken to transfer the Claimant to off-site provision, on both educational and disciplinary grounds.
41. However, in the absence of an identifiable error of law, it is not for this Court to substitute its own judgment for that of the Governing Body and/or the Head Teacher. Applying the relevant threshold tests for judicial review, I am unable to find that there has been an unexplained departure from the statutory guidance itself, nor that the decision was legally irrational.

The failure to review the placement

42. As I have already noted, section 29A(3)(b) of the 2010 Act obliges the Secretary of State to make regulations requiring the Board of Governors to keep off-site placements under review. This is reflected in Regulations 4 to 6 of the 2002 Regulations as amended. So far as relevant these provide that where a pupil has been transferred under section 29A(1) of the Act the Board of Governors must hold review meetings at intervals they consider appropriate having regard to the needs of the pupil, and decide at each such meeting whether the placement should continue and, if so, for what period of time. In reaching its decision, the Governing Body must take account of the views of the parent and other prescribed persons and must, within six days, notify its decision in writing to those affected.
43. The relevant DFE Guidance (2013) provides, at paragraph 24, that the governing body must:

"...keep the placement under review and involve the parents in the review. The regulations specify regular reviews but do not specify how often reviews must take place (that should be decided on a case-by-case basis). Reviews should be frequent enough to provide assurance that the off-site education is achieving its objectives and that the pupil is benefiting from it..."

44. Mr. Szemalikowski affirmed in his first witness statement that off-site educational placements were generally reviewed by the school twice per term, and that the school considered it, in principle, appropriate to review the Claimant's placement. However, by the time of the hearing before me no review had taken place because he had "not been attending college".
45. On the basis of this evidence, Counsel for the school sought to argue that the duty to conduct a review only arises when a pupil has attended an off-site establishment over a period of time so that his or her progress in the new location can be evaluated. I do not accept this proposition. In my judgment, the fact that a child is so unhappy that they have absented themselves from alternative educational provision altogether may, in some instances at least, be a material factor to be taken into account in a review. Whilst recognising the need to maintain the integrity of the system of alternative placements, it must be recognised that there could be cases in which a re-evaluation of the child's best interests might be called for. The fact that the Claimant had failed to attend the college placement was not, in my judgment, a sufficient reason for failing to conduct the reviews mandated by the 2002 Act and the 2010 Regulations. On the facts of this case, I cannot conclude that a review would have made no difference.
46. Regulation 4A provides, inter alia, that the parent may request a review meeting. Counsel for the school faintly argued that the Claimant's challenge should be rejected on the ground that it was open to his father to have sought a review. This was an ambitious submission in view of her client's primary case that there could be no review due to the Claimant's absence from college. Even if the Claimant's father had made a request under Regulation 4A it could not have resulted in a meaningful, or any, review of the placement, given the school's stance on this issue.

Conclusion

47. I have found for the Claimant in relation to the procedural protection ground and the failure to review ground. I propose to give guidance as to the form of relief to be ordered, and invite Counsel to draw up the order itself.
48. The appropriate relief in relation to the first of these grounds is a quashing order coupled with a mandatory order requiring the school to reconsider its decision within six weeks of the date of the sealed order in this matter. Since the transfer decision will have been quashed, the effect of the Court's order will be to require the Claimant's immediate re-admission to the school for the six week period.
49. As regards the second ground on which the Claimant was successful, I would be minded to make a mandatory order requiring review of his placement. However, this would be rendered academic by the relief I have ordered in relation to the first ground. It would, in principle, be open to the Court to make a mandatory order that is dependant on the outcome of the full reconsideration but in the present circumstances I do not think that it is appropriate. From the terms of this judgment it should be very clear to the Governing Body that if a further decision is taken to transfer the Claimant to off-site provision, that decision must be regularly reviewed (at such frequency as the governing body judges to be appropriate). It is not in my view necessary to order any further relief on this ground.
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