BG (by his mother and litigation friend SQ) & Anor (R on the application of) v Suffolk County Council

Lady Justice Nicola Davies :

1. Quashing of the appellant’s decision dated 12 November 2020 (paragraph 2 of draft order). It was the clear intention of Lang J to quash the decision of 12 November 2020. The omission of the decision to quash in the order of 14 December 2021 was an error. The court will quash the decision dated 12 November 2020 in order to rectify the error.

2. Relief sought by the respondents – payment of sums which would allegedly have been paid to each respondent had the decision of 12 November 2020 not been made (paragraph 3 of draft order). This claim was not included in: (i) The judicial review claim form; (ii) The order of Lang J dated 14 December 2021; (iii) The respondents’ notice in these proceedings; (iv) The respondents’ skeleton argument in these proceedings nor in the oral submissions made to the Court of Appeal.

3. The claim was raised for the first time in the respondents’ draft order for this court following circulation of the draft judgment to the parties. It is, in effect, a claim for restitution. If the intention was to make such a claim it should have been pleaded from the outset and raised before Lang J. It was not. It would be neither fair nor reasonable for this court to grant relief upon a new aspect of the respondents’ case at this very late stage. Lord Justice Phillips

4. I agree. Lord Justice Baker

5. I also agree.