DA (a child), R (on the application of) v Bristol City Council

The claimant sought to set aside a Tomlin consent order on grounds of misrepresentation and fraud and to revive a judicial review claim that challenged the defendant's duty to secure special educational provision under the statutory SEND regime. The litigation engaged statutory provisions including section 175(1) of the Education Act 2022, section 42(2) and section 19 of the Children and Families Act 2014, and section 149 of the Equality Act 2010; human rights provisions (Articles of the First Protocol and section 8 of the Human Rights Act 1998) were also discussed as potential bases for damages.

The court considered whether a separate recission claim was required, whether the set aside application was now academic or would confer any benefit, whether there had been delay, and whether restitutio in integrum or equitable rescission could operate. The judge concluded the claim was academic and dismissed the application to set aside the consent order for that reason.

Background and parties: DA is a child with severe autism. His father, MA, acted as litigation friend. The first judicial review, commenced July 2022, challenged the local authority's alleged failure to secure special educational provision (SEP) in DA's EHCP. Proceedings were settled by a Tomlin consent order made by Steyn J on 25 November 2022, incorporating a schedule of specific provision.

Nature of the application: The litigation friend applied to set aside the consent order on the basis it was procured by misrepresentation and concealment and sought to revive the first judicial review or obtain other relief, including a pleaded but ungranted damages case based on the Convention rights.

Procedural posture: There was extensive interlocutory history including refusal and grant of permission at earlier stages, witness evidence from an ABA provider (Skybound), and subsequent Court of Protection proceedings. A second judicial review was brought in September 2023 and remained live; by September 2024 DA had commenced attendance at college.

Issues framed by the court:

• Whether the set aside application required a separate claim for rescission or could properly be determined in the stayed judicial review proceedings;
• Whether the application should be dismissed as academic or moot because the claimant had since been educated at college and the Tomlin schedule had effectively ceased to have ongoing effect;
• Whether allowing the application would confer any benefit (including a not-yet-pleaded damages remedy) or whether restitution in integrum would be impossible;
• Whether delay or abuse of process warranted dismissal.

Court's reasoning and conclusion: The judge assumed, without deciding, that the Administrative Court could entertain the set aside application. He found the claim to be academic because DA was no longer receiving the education otherwise than at school provided for in the schedule, performance under the schedule had finished, and related issues were or could be litigated in the second judicial review. A damages claim had not been pleaded with permission and had been effectively forgone in the settlement. Delay was not decisive. Although recission and restitutio in integrum were considered, the judge regarded those as private law remedies distinct from public law orders and concluded that even if rescission were theoretically possible it would not produce any practical benefit. The application to set aside the consent order was therefore dismissed as academic.

The application to set aside Steyn J’s consent (Tomlin) order is dismissed. The judge held that the underlying judicial review claim is now academic because the claimant is no longer educated otherwise than at a school, performance under the schedule to the consent order has concluded, any live complaints are addressed in a later judicial review, and there would be no practical benefit to resurrecting the settled proceedings.