V, R (on the application of) v Cumbria County Council

Liberty to apply is suitable for clarifying an order or determining whether an uncomplicated continuing breach exists. It is unsuitable for resolving a substantial dispute of fact about whether a public authority has complied with a statutory duty or judicial review order. Judicial review ordinarily determines the lawfulness of an impugned decision, rather than acting as the primary fact-finding process. Where alleged breaches remain disputed, their precise nature should be identified in a fresh application for permission to apply for judicial review.

V, a severely disabled child, had successfully challenged Cumbria County Council’s compliance with her Statement of Special Educational Needs. Jackson J made detailed mandatory orders concerning schooling, equipment, staffing and review arrangements, and gave liberty to apply.

V’s mother alleged continuing breaches of those orders and sought relief under the liberty-to-apply provision. The Council disputed the allegations and relied on documentary evidence of compliance. The central issue was whether the disputes could properly be determined through the existing liberty-to-apply procedure.

1. The application was dismissed. The liberty-to-apply provision in Jackson J’s order was discharged. There was no order on the present application, subject to the costs direction.
2. Liberty to apply may properly be used to clarify an order, including to determine whether a continuing breach exists where the issue can be resolved without a substantial factual dispute. It is inappropriate where the claimant alleges non-compliance and the defendant disputes the underlying facts.
3. Judicial review is concerned principally with the lawfulness of decisions made by the public authority. Except in rarefied cases, it is not the court’s function to act as the primary fact-finder or decide which competing factual account is correct.
4. The allegations concerning the feeding assessment, speech and language provision, use of the walking aid, staffing and statutory review arrangements could not properly be investigated or enforced through liberty to apply. The documentation disclosed disputes that required the precise alleged breaches to be formulated and answered.
5. Any further dispute should be raised by a fresh application for permission to apply for judicial review, with the application and acknowledgment of service placed before Jackson J for consideration on the papers. The court also urged the parties to resume discussions directed towards V’s safe return to school.

The judgment states that Jackson J had previously granted V judicial review relief and made detailed orders. The present proceedings were a subsequent application under the liberty-to-apply provision of that order, not an appeal.