co/8417/06 
Neutral Citation Number: [2006] EWHC 3144 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Wednesday, 22 November 2006
 
B E F O R E:

MR JUSTICE UNDERHILL
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF S
(CLAIMANT)

-v- 

EDU ACTION (WALTHAM FOREST)
LONDON BOROUGH OF WALTHAM FOREST 
(DEFENDANTS) 
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR S appeared on behalf of the CLAIMANT
MR D RUTLEDGE (instructed by LEGAL SERVICES DEPT OF WALTHAM FOREST) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T
1.	MR JUSTICE UNDERHILL:  The claimant is a child now aged 16.  He is severely autistic.  By these proceedings, which he brings by his father as his litigation friend, he challenges the decision of the defendants not to provide him with transport to his school.  Somewhat unusually, the claimant's father, who acts in person but is a solicitor by profession, has made no application for an order under section 39 of the Children and Young Persons Act 1933, or under CPR 39.  He takes the position, which I respect, that no shame should be attached to his son's condition and that since the case involves no other confidential information about him and there is no respect in which his interest could be damaged by publication of the proceedings, no order designed to procure privacy or anonymity would be justified.  The defendants do not regard it as their role positively to seek such an order, but Mr Knafler, who appears for them, has on instructions told me that it is their view that such an order ought to be made in order to protect the confidentiality of a child in all cases such as this.  I consider that on balance I ought to make an order that these proceedings be reported in such a way as not to identify the claimant; and for that purpose I will refer to him in this judgment as "W", to his father and mother as "Mr and Mrs S", and to his sisters, who feature briefly in the evidence, by their initials.  The general practice of the courts in cases of this kind reflects a realistic and proper assessment that in the case of a child even matters which are not specially confidential or damaging ought not to enter the public domain where there is no special public interest in their doing so.
2.	The circumstances giving rise to the proceedings can be summarised as follows.  
(1)  The first defendant is the Local Education Authority with responsibility for W's education.  The second defendant is a company which by contract with the first defendant is responsible for the discharge of its obligations in the respects relevant to these proceedings.  It is unnecessary for the purpose of these proceedings to distinguish between them, and I will refer to them without differentiation as "the defendants".  The defendants' Head of Services for Vulnerable Children is Mr Jim Waddington, who is responsible for both their special educational needs service and their transport service.  
(2)  When he was as young as five, W started to attend Whitefield School in Walthamstow, a large and well-regarded school for children with special educational needs.  In the summer of 2005 he was removed from the roll at Whitefield in circumstances which have led to separate litigation but which are not relevant for the purpose of these proceedings.  His parents challenged that position using the mechanism of his statement of special educational needs, and in May 2006 his placement at Whitefield was confirmed by the decision of a Special Educational Needs and Disability Tribunal.  But it did not prove practicable for him to restart there before the summer holidays, and for various reasons which I need not go into at this stage he has not in fact yet restarted and has been away from school now for over a year.  
(3)  During the whole of the period until the interruption of his schooling in July last year, W was provided by the defendants with transport to school in pursuance of their duty under section 509 of the Education Act 1996, Whitefield being more than "statutory walking distance" from W's home.  Initially he travelled on a bus with other children, but in the latter part of the period he was taken to school on his own with two escorts in a specially adapted minibus:  this was because his behaviour could on occasions be disruptive and uncontrolled.  
(4) In, I think, 2005 (or it may be earlier this year) Mr and Mrs S separated.  W and his younger sister, I, live with their mother at the former matrimonial home in Chingford.  
(5)  Following the decision of the Tribunal in May 2006 W's parents assumed that the previous arrangements for taking him to school, or at least some equivalent to them, would be resumed.  That impression was reinforced by letters from the defendants dated 15th June 2006 and 21st June 2006 which, although they suggested that there might have to be some changes in the details of the arrangements, clearly stated that transport would continue to be provided.  
(6)  However, in circumstances which I shall have to describe in more detail below, the defendants changed their position, and by letter dated 31st August 2006 they offered not themselves to provide or arrange for the provision of transport for W, but rather to provide "transport assistance" in the form of an allowance calculated to cover the fuel costs of Mr and Mrs S themselves driving W to school and back each day.  The figure was calculated on the basis of the mileage from the address where Mrs S and W and his sister were living, and it was in practice Mrs S who the defendants envisaged would be taking W to and from school.  
(7)  Mr and Mrs S appealed against that decision under an internal procedure permitting an appeal to a non-statutory Transport Appeals Panel.  Mr S submitted written representations.  He challenged the decision both as a matter of law and on the grounds of the fairness and practicality of the proposed arrangements.  As regards the latter he outlined the practical difficulties for Mrs S in taking W to school as well as his sister.  There was no hearing but the Panel considered the appeal and decided to uphold the original decision.  
3.	It is Mr S's case on behalf of W that the defendants' decision of 31st August, confirmed by the Transport Appeal Panel, is unlawful and that the defendants are obliged to provide not simply "transport assistance" of the kind offered but actual transport.  His primary position is that the arrangements which were in place prior to the summer of 2005 should be restored, but he says that he is willing to consider other arrangements such as shared transport if they are judged by the defendants to be practicable.
4.	These proceedings were commenced on 13th October 2006.  They have been treated as very urgent because although there have been other issues which have prevented W returning to school at Whitefield, it is Mr S's position that those issues were likely to be resolved in the near future, at which point the question of transport would become critical.  In those circumstances Dobbs J was prepared on 25th October to grant permission without sight of an acknowledgment of service from the defendants, and the matter came before me on 15th November.  The speed with which the application has come on has created some difficulties for the defendants in preparing their evidence and submissions, which I have been asked to bear in mind in assessing them.  
5.	I should start by setting out the statutory background to the rights claimed on behalf of the claimant.  
6.	Section 509 of the 1996 Act, as originally enacted, was, so far as relevant, in the following terms:
"(1)  A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purpose of facilitating the attendance of persons receiving education- 
 (a) at schools 
... 
 (2)  Any transport provided in pursuance of arrangements under subsection (1) shall be provided free of charge."
The effect of section 509 when read with section 444, whose terms I need not set out here, is in practice to impose an obligation on a local educational authority to provide free transport to school for children living outside the statutory walking distance - see R (Jones) v Ceredigion County Council [2004] EWHC Admin 1376.  It was under these powers that transport was provided for W up to the summer of 2005.  However, the Education Act 2002 introduced a new regime as regards children "of sixth form age", which for practical purposes means children of over 16.  The position as regards such children is the subject of a new section 509AA which is in the following terms: 
"(1)  A local education authority shall prepare for each academic year a transport policy statement complying with the requirements of this section.  
 (2)  The statement shall specify the arrangements for the provision of transport or otherwise that the authority consider it necessary to make for facilitating the attendance of persons of sixth form age receiving education or training- 
 (a) at schools.
...  
 (3)  The statement shall specify the arrangements that the authority consider it necessary to make for the provision of financial assistance in respect of the reasonable travelling expenses of persons of sixth form age receiving education or training at any establishment such as is mentioned in subsection (2).
...  
 (7)  The authority shall-
(a) publish the statement, in a manner which they consider appropriate, on or before 31st May in the year in which the academic year in question begins, and 
 (b) make, and secure that effect is given to, any arrangements specified under subsections (2) and (3)." 
I should also refer to section 509AB, which provides so far as relevant as follows:
"(1)  A statement prepared under section 509AA shall state to what extent arrangements specified in accordance with subsection (2) of that section include arrangements for facilitating the attendance at establishments such as are mentioned in that subsection of disabled persons and persons with learning difficulties. 
...  
 (3)  In considering what arrangements it is necessary to make for the purposes mentioned in subsections (2) and (3) of section 509AA the local education authority shall have regard (amongst other things) to- 
 (a) the needs of those for whom it would not be reasonably practicable to attend a particular establishment to receive education or training if no arrangements were made, 
 (b) the need to secure that persons in their area have reasonable opportunities to choose between different establishments at which education or training is provided, 
 (c) the distance from the homes of persons of sixth form age in their area of establishments such as are mentioned in section 509AA(2) at which education or training suitable to their needs is provided, and 
 (d) the cost of transport to the establishments in question and of any alternative means of facilitating the attendance of persons receiving education or training there."
Since W is now of sixth form age - formally with effect from 1st July 2006 - it is the regime under sections 509AA and 509AB which apply to his case.  That is something which Mr S did not, I think, initially appreciate.  
7.	The defendants have published a transport policy statement pursuant to section 509AA.  The statement includes a section headed "SEN Transport Policy and Eligibility Criteria" which is plainly intended to satisfy their obligation under section 509AB.  The relevant terms of the policy for present purposes are as follows:  
"1.1.  The Local Education Authority (LEA) has a statutory duty, and in appropriate circumstances, discretionary powers to provide assistance with home-to-school travel, based on a pupil's individual needs and circumstances.  The LEA recognises that students with special educational needs, who already face many challenges, should be transported in a manner that assists their readiness to engage in learning on their arrival at school and ensures their comfort and safety.  At the same time the LEA is also required to make the best possible use of available resources in order to optimise the learning outcomes of each pupil. 
... 
Expectations 
1.4.  The LEA is currently moving towards a policy of inclusion and in keeping with this policy, pupils with a Statement of SEN should, wherever possible, be treated in the same way as non-statemented pupils.  Most pupils in Waltham Forest
•  walk to school, accompanied, if necessary, by a parent/carer; or 
•  travel to school on public transport; or
•  are driven to school by parents.  
1.5.  Wherever possible the LEA expects parents to make similar arrangements for children with special needs, regardless of whether the school their child attends is a mainstream school or a special school and/or whether the school is within Waltham Forest or in another Borough.  
1.6.  The LEA encourages pupils to develop independent travel skills where this is a reasonable expectation and this is considered appropriate at pupil's Annual Reviews.  This should be a realistic aim for older pupils with moderate learning or emotional and behavioural difficulties, but is considered unlikely to be appropriate for primary age pupils.  Where pupils are unable to undertake the journey on their own parents will be encouraged to accompany them.  
1.7.  The issue of independent travel will be considered at each pupil's Annual Review.  Where it can be demonstrated that the pupil's independent living skills can be promoted by the use of public transport, the LEA will assist by providing a free bus or train pass for the pupil and where necessary an accompanying parent/carer.  
...  
1.10.  Decisions relating to a pupil's transport entitlement will be made as part of the statutory assessment process and be re-examined regularly as part of the annual review of the statement of special educational needs.  
2.  Circumstances where transport may be considered 
2.1.  Eligibility will be assessed against the special needs of the individual child - whether a learning difficulty or a physical disability.  In practical terms this will consider the child's ability to travel, whether walking or on public transport, and whether they can travel unaccompanied.  
2.2.  Transport will be provided where:   
2.2.1.  The child has a severe physical disability that makes it impossible for them to use public transport.  
2.2.2.  The child is considered to be at risk because of the extent of their learning or behavioural difficulty.  
2.2.3 the pupil has severe medical needs such that they would be considered at risk if they use public transport.  This would need to be verified by evidence from a doctor.  
2.2.4.  The pupil is at risk of physical attack and/or where the child's care plan or child protection plan specifies the risk of a child travelling by public transport or on foot.  
... 
Students aged 16+  
2.4.  The LEA will continue to provide transport for an eligible student who remains at school beyond the age of 16 until the end of the course.  This transport need will be reviewed annually through the Annual Review, and further steps to encourage independent travel skills will be encouraged for this age group...
...  
Types of transport to be provided
3.6.  Payment will cover the cheapest form of travel from home to school unless the difficulty of the journey by the cheapest form of transport makes this unreasonable.  
3.7.  The first option is for the child to use public transport if at all possible.  
3.7.1 The LEA has a policy to issue free travel passes for any pupil where they have to travel more than certain distances to school... 
3.7.2.  If a pupil with a Statement has to travel in excess of the statutory distances and they are able to use public transport their Statement will not specify transport, as the qualify for a travel pass under the non-SEN policy.  
3.8.  If the pupil lives closer than these distances and has a physical disability affecting their mobility but could nevertheless use public transport, their statement could specify the issue of a travel card.  
3.9.  The LEA will only consider the provision of any other form of transport where it has been demonstrated that the needs of the pupil warrants this level of assistance and that the pupil is unable to use public transport.  
3.10.  Alternative arrangement may include: 
3.10.1.  The provision of a bus pass to an adult who will accompany the pupil, the pupil's parent/carer or an adult nominated by the parent/carer.  
3.10.2.  The provision of an escort to accompany the pupil on public transport.  
3.10.3.  The provision of a place on a school bus.  
3.10.4.  The reimbursement of parents/carers who use their own vehicle to transport their child who is unable to walk to school or to use public transport.  The rate of reimbursement will be at the current Inland Revenue car mileage rates where they deem there not to be a profit element in the payment.  
3.11.  In only very exceptional circumstances will the use of private hire vehicles for transport be considered.  Such situations will only relate to: 
3.11.1.  The severity of a pupil's physical disabilities and their parent/carer not having access to their own accessible transport or accessible public transport.  
3.11.2.  The parent/carer not having their own transport and there is demonstrable evidence that the pupil is a risk to themselves or others when using public transport because of the degree of their learning disability or a health need.  
3.11.3.  Limited access to public transport, thereby necessitating the need to use a private hire vehicle." 
Finally there is a section providing for the internal appeal, to which I have already referred.  This reads as follows:  
"3.12.  Should the parent/carer feel that the proposed transport provision is inappropriate, they have an opportunity to appeal within 7 days of receiving notification of the transport provision.  
3.13.  Parents/carers should document the reasons why the proposed transport provision is inappropriate and if it falls outside of the policy.  This information should be provided within 7 days of the appeal.  
The information supplied by the parent/carer will be reviewed by an appeal panel within a further 7 days parents/carers are notified as soon as possible of the decision of the panel."
8.	The drafting of that policy is not particularly tight, but its overall effect is clear.  In the case of a child with special educational needs the defendants have under the policy a discretion but not an absolute duty to provide what is described as "transport."  "Transport" will be provided to pupils who are "eligible" according to the criteria set out in section 2; but it is clear from paragraphs 3.6 to 3.11, and in particular from paragraph 3.10, that "transport" may be provided not only in the form of actual transport (that is, a school bus or private hire vehicle) but in the form of "transport assistance" such as bus passes or escorts or, as in the present case, an allowance to cover the cost of fuel for parents driving their children to school.  Actual transport and in particular transport in the form of the provision of a private hire vehicle, are only to be provided where the other forms of assistance are judged to be inappropriate.  By paragraph 2.4 those policies apply equally to a child over 16, subject only to the gloss, which is of doubtful relevance in W's case, that independent travel skills will so far as possible be encouraged.  
9.	I believe that that policy, having those characteristics, complies with the requirements of sections 509AA and 509AB.  The arrangements which an authority is required to have and to specify in its policy statement are arrangements which facilitate the attendance of sixth formers at school "by the provision of transport or otherwise" (emphasis added) within the meaning of subsection (2) or for "financial assistance" within the meaning of subsection (3).  Mr Knafler submitted that transport assistance of the type covered by the defendant's policy as set out above, and as offered to W in this case, plainly falls within the phrase "or otherwise".  Subject to one point which I mention below, that seems to me to be right - the phrase is entirely apt to cover circumstances in which arrangements are made which will facilitate the attendance of a child at school otherwise than by the provision of actual transport.  Mr S, however, submitted that the phrase "or otherwise" referred only to arrangements additional to the provision of transport, such as escorts to travel with children.  That might be a possible argument - though I am bound to say I doubt it - if the phrase were "and otherwise" (as in fact it is in section 509), but I do not think that it is arguable on the words actually used in section 509AA:  "or" means "or".  
10.	My only concern about accepting Mr Knafler's submission is that if it is correct I am not sure what role is left for subsection (3), which requires the authority to specify arrangements for the provision of "financial assistance in respect of travel expenses".  On the face of it, the provision of what I have been calling "transport assistance" falls more obviously within subsection (3), which I note is not expressly referred to in section 509AB.  My attention was not drawn to this provision in the course of argument and my views about it must accordingly be somewhat tentative, but I can see no reason why there should not in fact be an overlap between the two provisions.  In any event, however, even if that were not so, there would still be no breach of duty by the defendants: they have done what the statute requires, namely to state their arrangements under both subsections.  
11.	I should mention one other element in the legal background.  W's annual statements of special educational need up to 2005 had all contained under Part 6 that is, the part concerned with "non-educational provision" a statement that he required transport to and from school.  I understand that it is common practice for transport needs to be covered in this way; and the defendants' policy, in the passages which I have set out, expressly contemplates pupils' travel needs being covered in the annual review of their statements.  That is obviously a sensible practice, though I understand that there may be a doubt as to whether any disputes about Part 6 of the statement would fall to be decided by a Tribunal.  W's amended statement, issued following the decision of the Tribunal in May 2006, contained no such entry in Part 6.  It seems that the defendants had not included such provision in the original version of the statement and Mr S had not queried this when the statement was appealed to the Tribunal.  He tells me that so far as he was concerned this was simply an oversight.  So far as the defendants are concerned, I am not clear whether the omission was deliberate, in view of the fact that W would shortly be attaining sixth form age, or was also an oversight.  The omission is in no way determinative of the issues before me.  It simply means that the usual mechanism for addressing transport issues was not employed.  It does not, to meet one argument advanced by Mr S, involve any breach by the defendants of their policy.  It was only when the Tribunal made its decision in May that W's re-attendance at Whitefield came onto the agenda.  At that stage an "annual review" was not appropriate.  What was needed and what was received was a decision.  
12.	That is the legal background.  Mr S's case as it ultimately crystallised before me was essentially twofold.  First, he submitted that the defendants have reached a decision which is Wednesbury unreasonable, having regard to their own published policy.  Secondly, he submits that the decision was in any event reached procedurally unfairly.  It is right to say that the latter way of putting the case does not emerge explicitly from the claim form.  Mr Knafler did not object to it being advanced, subject to the proviso that the defendants should not be prejudiced to the extent that their evidence failed to meet a case which they had not had reason to anticipate.  
13.	For the purpose of both aspects of the case, it is convenient if at this point I set out in rather more detail the sequence of events leading to the decisions of which complaint is made.  
14.	As I have already mentioned, the initial correspondence from the defendants following the decision that W should be re-admitted to Whitefield appears to suggest that transport would be provided.  A further letter dated 8th August 2006 confirmed an offer of "transport assistance" and informed Mr and Mrs S that the defendants' transport contractors would contact them in due course "with details of W's pick up and drop off times".  A "transport agreement letter" was enclosed, which they were asked to sign.  The defendants' evidence is that what they were intending to offer by that letter was "shared transport", that is transport on a school bus of some kind with other pupils.  That is not however clear from the terms of the letter as sent.  
15.	Mr S responded to that letter by email dated 16th August 2006 to Miss Jaynn Taylor, the defendants' SEN Standards and Service Manager.  He said this:
"I refer to your letter dated 8th August 2006 regarding the transport arrangements for W's return to Whitefield.  I understand that [Mrs S] has spoken with Manoj Karavadra regarding her concern over clause 1 of the terms and conditions which state: 'The vehicle may wait for no longer than three minutes after the scheduled time of collection'.  
As you are aware, whilst [Mrs S] has always used her very best endeavours to ensure that W is ready as soon as the bus arrives, this has not always been possible.  The reasons for the delays in bringing W out to the bus that occasionally occur are all directly or indirectly linked to his severe autism.  In the circumstances I trust you will agree that in the circumstances clause 1 is not reasonable.  [Mrs S] will of course continue to use her best endeavours to ensure that W boards the bus promptly.  
I am unaware of any legal authority that entitles EduAction to make the provision of transport services that it is legally obliged to provide conditional upon the signing of terms and conditions.  If you know of any please let me know.  
Can you please provide me with details of the transport that will be provided for W at the start of the new school year.  In the past you have provided a mini bus with two escorts.  
Finally, what is the proposed time for collection?  
I look forward to hearing from you." 
16.	It is Mr Waddington's evidence that he understood that email to be a rejection of the offer made in the defendant's letter of 8th August.  I find that incomprehensible.  The email certainly raised various questions - legitimate questions as it seems to me - and there is perhaps an implication that if the answers were unsatisfactory Mr S might object to what was being offered; but it does not follow that he would have refused it, and in any event he had certainly not done so at that point.  
17.	There was no written response to Mr S's email.  He sent a chasing email on 30th August and followed it up with a telephone call to Miss Taylor early that afternoon.  According to the statement of facts served with the claim form, the effect of the conversation was as follows:  
"Miss Taylor informed the claimant's father that she was writing to him and the claimant's mother, inviting them to a meeting on Friday 1st September 2006 [that was in two days' time] to discuss transport arrangements.  The claimant's father said he could see little point in having a meeting as any outstanding issues could be resolved by telephone discussions and/or correspondence.  He informed Miss Taylor that the defendants had a clear legal obligation to transport the claimant to Whitefield and it was simply a question of them making and confirming the appropriate arrangements.  The claimant's father said he would however consider the need for a meeting further once he had received Miss Taylor's letter."  
Immediately following that conversation he sent a short email asking that the letter which he had been told to expect be emailed to him as well as being sent to Mrs S's address. 
18.	I have no witness statement from Miss Taylor.  That is not a matter of criticism, for the reasons that I indicated earlier:  the defendants have had to prepare their case in considerable haste.  I do however have a witness statement - indeed more than one - from Mr Waddington.  He says in his second witness statement that "shortly before 31 August, Mr and Mrs S informed us that they did not wish to meet us to discuss the transport issue further." On the basis of Mr S's account of the conversation which I have set out, that is not a fair statement of Mr and Mrs S's position, since Mr S had said that he would consider whether a meeting was necessary once he had a reply to his email of 16th August.  Although without hearing oral evidence from Mr S and Miss Taylor I cannot definitively decide whether Mr S's account is accurate, I see no reason to doubt it.  I am mindful of Mr Knafler's point that I should not make findings adverse to the defendants on the basis of evidence which they have not had the opportunity to challenge; but, as will appear, this point, though not insignificant, is not fundamental to my decision in the case. 
19.	On the following day the defendants did indeed write to Mr and Mrs S, but the letter was not a response to Mr S's email of 16th August.  Instead, it was in the following terms:
"Re: Home School Transport Assistance for WS.  
I am sorry that you have chosen not to meet with colleagues from EduAction this Friday.  
As you will be aware, the statement currently in force for W does not stipulate the provision of transport and we are not obliged to provide it.  
Under the current transport policy we are able to provide transport assistance and we will therefore reimburse you as parents for the twice daily cost of transporting W to and from your Waltham Forest family home.  
We will reimburse for the cost of the round trip of 6.8 miles at 45p per mile, that is £6.12 per day to cover fuel costs."  
20.	It is this letter which contains the primary decision challenged.  The decision is of course a complete volte face on the part of the defendants, who had up to that point been offering actual transport for W.  There had been no prior consultation or discussion with Mr and Mrs S as to the proposal that they should drive W to school.  Mr Waddington in his witness statement explains the thinking behind that decision and the reason for the defendants' change of position.  Having explained, as I have already indicated, that he understood the email of 16th August to be a rejection of the offer of share transport in his letter of 8th August, he says this:
"As Mr S had not taken up the offer of group transport, the other options were the provision of a dedicated vehicle at a cost of approximately £42,000 per annum (the cost is approximately the same whether by way of a bus or by way of a mini cab with two carers), or the provision of a mileage allowance for a parent to drive him.  The cost of the mileage allowance would be about £1,300 per annum.  The other remaining option, of providing a pass for public transport was not feasible in W's case, because it had already been established that at no time could W travel unaccompanied.  In weighing up the options we were mindful that W's behaviour had appeared to have improved.  So far as possible, we wish to offer provision such as travelling as a passenger in an ordinary car which would tend to promote his independence; and we considered the circumstances of the S family.  We were aware that Mr and/or Mrs S had regularly driven W as a passenger in their case to respite care provided by Social Services; and on the day of the SENDIST hearing, W had apparently travelled both by car and by tube in the rush hour, without adverse effects.  We were aware that W has a younger sister, I, who would have to get to school and that she attended St. John Fisher School in Loughton.  We considered that Mrs S would be able to take I to school for its 8.45 am start and then drive to Whitefields to deliver W either at its start time of 9.15 am, or if need be at such slightly later start time as might be agreed with Whitefield.  In my experience, there are a number of children who arrive at Whitefield at start times other than the standard one.  The school is sympathetic to such requests, both in recognition of the issues and needs of their pupils and because it contributes to minimising traffic congestion at the start of the school day.  We considered that similar arrangements could be put in place at the end of the school day.  
8.  Shortly before 31st August 2006, Mr and Mrs S informed us that they did not wish to meet us to discuss the transport issue further, thus we had to take a decision based on the information we had.   
9.  Our offer of 31 August to pay mileage costs was both within the terms of the defendant's policies on transport costs for children of the relevant age and consistent with the information we had at that time regarding W's needs and capabilities.  We believed for the reasons in paragraph 7 that it would be possible.  Equally, we attempted to be as generous as possible within the terms of the policy by paying the full round trip mileage for both the beginning and end of the school day."  
In short, therefore, the decision was taken on the basis that Mr and Mrs S had rejected the offer of shared transport and that accordingly the defendants had to choose between providing W with a dedicated vehicle at a cost of £42,000 per year and making the offer which was in fact made.
21.	In my judgment that decision was seriously flawed in at least two respects.  First, the understanding that Mr and Mrs S had rejected the offer made on 8th August was wrong.  Secondly, given that there was a complete change in the defendants' position, even if it were a potentially justified one, it seems to me to be wrong that they should have made it without any prior notice to, or consultation with, Mr and Mrs S.  It was wrong simply to assume without discussion that it would be appropriate for Mrs S to drive W to school twice a day, either from her point of view or from W's.  I appreciate that Mr Waddington says that the absence of consultation was not the defendants' fault: Mr and Mrs S had refused to come to a meeting.  I have already indicated my view that that seems to be a misrepresentation of Mr S's position.  But even if I am wrong about that, it was, I think, incumbent on the defendants, if they were contemplating such a radical change, to spell out in terms what they had in mind; and it is not suggested that Miss Taylor gave any indication to Mr S of the defendants' plans in the conversation on 30th August, notwithstanding that it seems highly likely that the decision had already been taken or, if it had not been taken, must at least have been in contemplation.
22.	Mr S informed the defendants that he regarded the decision communicated by the letter of 31st August as unlawful, apparently on the basis (a) that it was a straightforward breach of an obligation under section 509 -- as I have said, he was not I think at that point aware of the significance of the changes introduced by the 2002 Act -- and (b) of a breach of a legitimate expectation that the arrangements which had continued up to the summer of 2005 would resume.  I should say that neither way of putting the case is now maintained by him, at least in those precise forms.  On 12th September he sent an email to Mr Waddington in the following terms:
"Further to our recent exchange of correspondence and discussion yesterday (when you accused me of being 'a reckless pursuer of lost causes') I would like to appeal against EduAction's decision to terminate W's long-standing transport arrangements whereby he is collected for school and brought back by bus.  I note from your published Transport Policy that such appeals are determined within seven days of receiving information from the parent.  
I note that I have been unable to persuade you that EduAction is acting unlawfully.  Before pursuing a judicial review, I am obliged to exhaust all other remedies.  
I attach a Statement of Facts that I wish to rely upon.  Please also take into account that [Mrs S] is a single mother looking after three children (with one, W, being severely autistic) and that she has to deliver our youngest daughter to school in Loughton every morning.  
I look forward to hearing from you." 
23.	Mr Waddington replied to that email later the same day:  
"I do not propose to enter into acrimonious correspondence with you.  Your continued rudeness over many years to myself and other senior EduAction staff continues to be a matter of concern.  
I would be most grateful if you could confirm in writing that your email attachment of today is the only evidence you will be submitting, since decisions of the Panel cannot be 'revisited' as a result of subsequent submissions for whatever reason.  You will also have noted that there is no further right of appeal.  The Panel making the decision will comprise those unconnected with the decision to offer transport assistance.  
If the appeal is declined, it will also be that the offer made in our letter of 31st August 2006 is withdrawn unless you otherwise write and confirm acceptance of it within seven days of receipt of the outcome of your appeal (assuming the decision is to decline your request).  As W is over the age of 16, there is no compunction on you presenting W to Whitefield or on ourselves to enforce attendance, but I would be grateful if you could keep the school informed as to your intentions.  
The Panel is likely to meet on 19th September (an earlier date is not possible because of the availability of Panel members and the pressure of work for them which is very high during the early part of the academic term).  We would hope to write to you within a few days of that.  
I feel obliged to point out also that if you continue with your judicial review, and if that case is lost by yourself, we will on this occasion be pursuing all our reasonable costs against you, since it is our view that you are acting as a vexatious litigant in regard to transport, we having acted on carefully considered legal advice and having made arrangements to ensure you are able to get W to school.  These costs could be considerable and I would urge you to discuss that with your ex-partner before proceeding further with your application." 
24.	Mr S replied, rejecting the "wholly unsubstantiated allegation that I have been rude to staff at Edu Action" and asking for further information about the appeal process, including an assurance that the Panel members would not be employees of the defendants.  Mr Waddington replied:
"Your inappropriate behaviour is a matter of record - not least at the Tribunal where you alleged that I, as a private sector employee had some inappropriate links with a member of the Panel.  You cited that as your reason for not staying at the Tribunal.  
There is no additional information to give you about the Appeal process.  As your email makes no reference to additional information, the Panel will be given your attachment contained in your earlier email."  
I shall have something to say in due course about the tone of the entirety of this correspondence, but I should observe at this point that that refusal to give any further information about the make up of the Panel was not a helpful response. 
25.	Mr S wrote to the defendants by letter dated 15th September, drawing attention to the fact that Mr Waddington had declined to answer his questions and also enclosing a revised version of the statement of facts.  As to that, most of it was concerned with legal submissions.  The final section, however, is headed "Practical Issues" and is in the following terms:  
"32.  Although not strictly necessary bearing in mind the legal position described above the claimant provides details of the reasons why the transport provisions set out in the defendants' letter dated 31st August 2006 would make it impossible for him to attend school at Whitefield.  
33.  The claimant's mother is responsible for the day-to-day care of W and his two sisters, R, aged 18, and I, aged 8.  I attends at St. John Fisher School in Loughton, Essex, which is 5 miles from the family home in Chingford and in the opposite direction from Whitefield, which is approximately four miles from the family home.  The claimant's mother drives I to school and in order to ensure she arrives on time (8.45 am) has to leave home no later than 8.20 am.  Traffic at that time of day is such that it would be impossible for the claimant's mother to then drive to Walthamstow in time to deliver William at 9 am.  
34.  It would be impossible for the claimant's mother to collect both I and W at the end of their respective school days.  
35.  The claimant's mother is under enormous stress and having to deliver the claimant to Whitefield every morning and collect him every afternoon would affect her health adversely.  
36.  The claimant is entitled to some independence from his mother and travelling to school on a minibus is part of that process.  
37.  As a severely autistic young person, the claimant is reassured by certain routine and is often strongly resistant to change.  This is well-known to the defendants, or should be.  
38.  The claimant associates being driven to Whitefield as an integral part of his school day.  The routine of travelling to Whitefield on a minibus helps him relax and to prepare himself mentally for the school day ahead.  Changing that established routine will undermine the claimant's confidence, adversely affect his educational progress and run the risk of triggering bouts of challenging behaviour."  
26.	In the meantime, the defendants had on 8th September learnt of an incident which had occurred during August when W, while in Newquay in Cornwall on a respite holiday with two carers, had knocked over a 3-year-old child:  the child had suffered no serious injury but the matter had been reported to the police.  There was at that stage no detailed account of what had occurred, but it had been reported to Whitefield, which took it sufficiently seriously to postpone W's return to school for 28 days pending further enquiries.  Even now the facts of the incident are not entirely clear, but I have seen a statement from one of the carers accompanying W which tends to suggest that the incident was not as serious as may at first have appeared.  
27.	The appeal to the Transport Appeals Panel was heard on 19th September.  The Panel consisted of a head teacher of a local primary school, Miss Skinner, and a Miss Hughes who was employed by the defendants but had no involvement with W or, as I understand it, with Mr Waddington or his team.  There was no hearing.  The appeal took the form of Miss Skinner and Miss Hughes considering Mr S's statement of facts and a written submission from Mr Waddington or on his behalf.  That submission was not made available to Mr S, nor has it been produced in the course of these proceedings.  Mr Knafler was indeed taken by surprise to hear of its existence in the course of the hearing - although again I must make it clear that I acquit the defendants of any intention to conceal it, and I recognise the speed with which this case has had to be prepared.
28.	I have a statement from Miss Skinner explaining the decision of the Panel which I shall quote in full:
"1.  I am the Head Teacher of Whitehall Primary School and have held this post for four years.  Additionally, I am the Chair of the Transport Appeals Panel established by the defendants in these proceedings.  I have experience of school transport issues because my school has a number of pupils with partial hearing loss who require particular transport provision to be made for them.  I have been performing this role for about one year.  My school is situated in North Chingford, thus I am familiar with the geographical area containing Mrs S's home in Chingford, her daughter I's school in Loughton and W's journey to Whitefield.  
2.  When the Transport Appeals Panel met we had available to us the submission provided by Mr S and were aware of his contention that it would be difficult for Mrs S to take I to school in Loughton and W to school at Whitefield.  We went through the points in the submission and as regards the issue of taking the two children to different schools, we concluded that Mrs S could first take I to school and then go on with W to Whitefield.  We were mindful that the school attended by I has a starting time of 08.45 hours while Whitefields starts at 09.15.  Apart from having to cross the North Circular Road, we did not consider the journey she would have to undertake would be particularly problematic.  However, if Mrs S and W needed to arrive a little bit late at Whitefield that was something that could be accommodated by arrangement with Whitefield.  
3.  Although Mr S stated that in order to get I to school on time meant leaving at 08.20, many parents prefer a calm, leisurely start to the school run allowing for any disruption.  The journey from Chingford to Loughton goes against the traffic and produces few delays due to easy road access.  We also considered that car sharing with another parent may be one option in relation to transporting I.  
4.  We were not advised that any extended time in the car would have a detrimental effect on W's physical or emotional well-being.  
5.  So far as the end of the school day is concerned, we concluded the journey could be completed within a reasonable time for reasons similar to those applicable in the morning and, again, with co-operation from Whitefield over school finishing times.  
6.  We rejected the idea of group transport for W due to safety concerns.  I was aware that W was involved in an incident that I know now occurred in Newquay during August but had no full knowledge of the incident or age of victim.  If we had been fully aware that would have made group transport even less of an option than it already was.  We were also concerned at the risk that delays in pick up by a group bus for W might impair I's journey to school.  
7.  We also considered the possibility of a dedicated vehicle.  This was not considered appropriate because of its costs, given that there was an alternative adequate option available, namely travelling with Mrs S."  
29.	The Panel's reasoning was thus not identical to that of Mr Waddington in the original decision.  It gave careful consideration to the practical problems which Mr S had raised but which had not been put before Mr Waddington.  Also, its rejection of the possibility of shared transport was not apparently based on any belief that Mr S had refused it, but on what the Panel had been told about the Newquay incident (though what this was is unclear).  
30.	I have to say that I regard this decision also as flawed.  I accept that it is not necessary that a Panel of this kind conducting what Mr Knafler called a "low level administrative appeal", designed (in his phrase) to take "a second view", should in every case hold an oral hearing.  It may indeed be that, as he submitted, a hearing would be unnecessary in the great majority of cases - although I am bound to say that getting the parties round a table has real advantages in avoiding misunderstanding and ensuring that the Panel gets a clear appreciation of what may often be quite complex problems.  But in a case where the Panel does proceed without a hearing, in my view it is essential that both parties should be aware of what the other is saying.  I do not regard it as fair that Mr S should not have seen the submission from Mr Waddington which was before the Panel or therefore had the opportunity to comment on it.  That unfairness is illustrated by the importance apparently attached by the Panel to the Newquay incident.  If Mr S had known that an account of that incident was to be given to the Panel he would no doubt have wished to convince them that the incident was not as serious as it seemed at first sight.
31.	The views which I have expressed above about the fairness both of the procedures leading to the decision of 31st August and of the appeal hearing were made clear by me during the hearing.  In response Mr Knafler, on instructions, gave the court an express assurance that the defendants would be prepared to accept from Mr S a fresh application for transport assistance, raising all the matters on which he wished to rely, irrespective of whether they were "fresh" matters -- that is, no point would be taken as to whether they were points which could have been made first time round.  Mr Knafler also told me that in the event of an appeal Mr S would be shown, and given the opportunity to comment on, any material which the defendants put before the Panel.  That was a most sensible and responsible offer on the defendants' part and to a large extent defuses the question of procedural unfairness.  Mr S now has the opportunity to have the defendants have a second look at the entire question of transport provision for W.  The only thing which he does not have is a promise of an oral hearing of any appeal.  As I have said, I do not believe that such a hearing is necessarily required, although I would expect the Panel to consider whether it would be useful in the light of the issues that it has to consider.
32.	I will return presently to the question of the implications of the defendants' offer for the relief which I should grant in this case.  The question remains whether the defendants' decisions (either the original decision or the decision of the appeal panel) were unlawful on substantive as opposed to purely procedural grounds - that is, whether they were Wednesbury unreasonable.  It was, as I have said, Mr S's case that they were.  He made various particular points but his essential submission was that this was a case where the options stated by the defendants in their policy statement to be their preferred options - that is, that a pupil of W's age should walk to school or travel by public transport - were plainly not available; and that in such a case it was wrong in principle to expect an unwilling parent to drive the child to school, treating him or her as (in his phrase) an unpaid taxi driver.  In such a case, he submitted, an authority had to provide actual transport.  Under the policy, provision of actual transport, and in particular a dedicated vehicle, is specified to be a last resort; but this was precisely one of the cases in which that kind of last resort provision was necessary.  It could not, he submitted, be a proper exercise of discretion to refuse to provide transport to a child with special educational needs who would otherwise, if the parents were obdurate, be deprived of the opportunity to be educated.  
33.	I see the force of that submission, but I think it is too stark.  The regime under sections 509AA and 509AB is deliberately one where there are no absolute obligations on local authorities to provide transport, even as regards children with special educational needs.  It is clear, in particular from section 509AB(3), that the authority's policy is intended to have regard to a range of discretionary factors, including in particular - at (a) - the reasonable practicability of the child receiving education if no arrangements were made and - at (d) - the cost of the provision of transport.  In those circumstances it seems to me that parents have obligations too.  They should not be encouraged to believe that they should do nothing to help to get their children to school on the basis that if they do not the local authority will have to.  (I do not of course say that that is Mr and Mrs S's attitude; I am speaking generally.)  There is perhaps some parallel, although the specific legal issue was different, with the decision of the House of Lords in Rogers v Essex County Council [1987] AC 66, where it was held that in the case of a school journey within statutory walking distance parents would in certain circumstances be expected to walk their children to school.  I appreciate that, as Mr S pointed out, in the case of disabled children their transport needs may not, unlike the case of children without a disability, get any less as they reach the age of 16.  But the fact remains that the statutory rules and regime do change at that point.  Children with disabilities or special educational needs cease at that age to get the transport provision that all children get, and they enter a different world where their parents may have to do more.  I do not wish to be misunderstood on this point.  There is no absolute rule that the parents of children over 16 who cannot travel to school on their own are expected to take them.  What parents can be expected to do will depend on their circumstances.  There will be cases where it is not reasonable to expect them to drive a child to school.  Each case will turn on its facts.  
34.	That deals with the Mr S's only root-and-branch attack on the reasonableness of the defendants' decisions.  He had, as I have said, particular criticisms of particular aspects of those decisions.  One point of contention is whether the Panel's assessment of the ease of the journey which Mrs S would have to make was a realistic one.  Another concerns the impact of so long a journey on W himself.  But these are not of their nature points of law.  Of course if the assessments made by Mr Waddington on the one hand or the Panel on the other had been perverse they would in principle be susceptible to judicial review.  But since Mr S is to have the opportunity to have those decisions revisited in any event, I see no advantage, and some disadvantage, in my traversing that ground now - particularly as part of the reason why those decisions are to be revisited is that not all of the relevant considerations or information had been brought to the defendants' attention.  I should only express a view on those points if I felt able to say with confidence that on some particular aspect there was only one view which the defendants could reasonably take; and I am not in that position.  It may, however, assist if I make a few points about the approach which the defendants should take to any reconsideration.  
35.	The starting point is that it appears to be common ground that W is "eligible" for transport assistance as defined by section 2 of the defendants' policy.  The only question is what form of assistance he should receive, and in particular of course whether it is reasonable to expect Mrs S to drive W to school and back every day rather than the defendants offering him actual transport.  That decision requires a careful and sensitive assessment, based so far as possible on reliable information or evidence.  There is evidence in Mr Waddington's third witness statement before me of a somewhat forensic approach to the issue, pointing out perceived inconsistencies in the stance taken by Mr and Mrs S in the past and now.  That approach may be understandable in the context of these proceedings, particularly in the light of Mr S's own approach; but it has no place in the assessment now required, which should be conducted with an open mind and a clean slate.  Reference back to what the parties may or may not have said on previous occasions is not going to assist in the taking of a reasonable decision.  Relevant considerations will include:
(a)  The effect of having to drive W to school and back every day on Mrs S.  The Panel on the last occasion made a careful assessment of what the drive involved.  Miss Skinner had local knowledge and was well-placed to make such an assessment, which is of a kind with which a court would hardly ever intervene.  But there are other factors, including Mrs S's health, on which the Panel had very little information and which will have to be put into the equation if proper evidence is supplied.  
(b)  The effect on W.  The defendants will need to form a view, with the benefit of such evidence and opinions as may be available from those with knowledge of W and his behaviour, about whether such a journey twice a day will have an adverse impact on his well-being.  In this connection I should note that both Mr Waddington and the Panel on the one hand, and Mr S on the other, referred to the importance of fostering "independence".  It is true that that factor is expressly mentioned under the defendants' policy, but I am bound to say that I read it in that context as being directed to encouraging children where practicable to travel on their own by public transport.  Although it is not ultimately a matter for me, I rather doubt whether considerations of that kind are relevant in W's case.  Of course his "independence" in some more general sense - that is to say whether it is good for him to make a journey without his mother, in a bus, as Mr S suggests - may be relevant as part of the overall assessment.  But I doubt whether independence in the sense that it appears to be used in the policy is of real relevance in this case.  
(c)  Cost.  Cost is always in principle a legitimate consideration, as recognised by section 509AB(3)(d).  As against that, as I am sure the defendants recognise, there are cases where the only appropriate provision is expensive, and in those cases there may be no alternative.  Mr S expressed some scepticism at the very large figures mentioned by Mr Waddington in his evidence.  I am bound to say that I too found them surprising, although Mr Knafler was able to show me an internal email which showed in very broad terms how they were arrived at.  Obviously if cheaper alternatives for the provision even of dedicated transport are practically available it will be in the defendants' interest as well as W's for those to be investigated.  I frankly doubt, however, whether the defendants' decision will ultimately depends on detailed issues about the precise costs: on any view dedicated transport will be hugely more expensive than what they are currently proposing, and it is entirely reasonable of them to wish to avoid that cost if there is a reasonable alternative. 
(d) Shared transport.  In both decisions to date Mr Waddington and the Panel excluded, though for different reasons, the possibility of shared transport - that is to say a school bus.  But that possibility had been offered, albeit Mr Waddington says with some hesitation, only a few weeks previously, and the reasons for subsequently excluding the option may need to be reassessed.  An evidence-based view will need to be taken as to whether W, if escorted as he no doubt would be, really does pose a significant risk to other children by reason of his behaviour or, less dramatically, whether difficulties of the kind referred to in Mr S's email of 16th September really do make the use of shared transport impracticable.  
36.	I have mentioned those factors because they are factors which featured in the evidence and argument before me, but they are in no sense exhaustive.  It will be for the defendants to consider any matter which is put before them or which they consider relevant in making the assessment required - on the assumption, which I suspect is inevitable, that Mr S will wish to take up the offer made by Mr Knafler.  
37.	I should finally mention, by way of footnote, that Mr S referred in argument to the Disability Discrimination Act 1995.  There was no reference to this in his claim form and he disavowed any intention to rely on it directly - he said it was only relevant by way of background.  I cannot see how the Act is directly engaged in any respect relevant to the defendants' treatment of W.  They will of course take into account the extent of his disabilities in deciding what is the appropriate form of transport provision to offer.  
38.	I return therefore to the question of relief.  I have already expressed my view that the defendants' decisions of 31st August 2006 and in the form of the decision of the Appeal Panel were unfairly arrived at.  But the defendants' offer which I have recorded above provides a remedy for that.  In those circumstances, it is unnecessary that I should formally declare the decisions to have been unlawful or make an order quashing them; and as a matter of discretion I propose not to do so.  The distinction is perhaps formal rather than substantive but I think it is appropriate in this case for three reasons.  
39.	First, I have borne in mind Mr Knafler's points that the procedural unfairness challenge was largely unheralded until the hearing.  Whilst my reasoning is such that I think it very unlikely that the outcome of this application would have been any different if the defendants had had a fuller opportunity to respond, I prefer to avoid imposing the stigma of a formal finding of unlawfulness in these slightly unsatisfactory circumstances.  
40.	Secondly, I think that some marker is appropriate of the good sense and responsibility shown by the defendants in authorising Mr Knafler to make, in the course of the hearing, the offer that he did.  
41.	Thirdly, and perhaps more sensitively, it has been very apparent to me from the tone of the correspondence which I have seen that there is no love lost between Mr S on the one hand and Mr Waddington on the other.  I have the clear impression that Mr S regards the defendants as essentially a hostile bureaucracy who will not do the right thing unless consistently harried.  Mr Waddington in the emails which I have quoted makes no secret of his views that Mr S is, in his words, vexatious and rude; and his exasperation has led him into some ill-considered language both in the emails considered above and in what I judge to be another ill-considered incident, when he reported Mr S to his employer for using his email during his employer's working time.  I am not going to attempt to decide whether or to what extent Mr S's view of the defendants and Mr Waddington or Mr Waddington's view of Mr S is justified.  There is obviously a long history here, and I have seen very little of the relevant material.  I should however say that I am quite sure that both parties wish, within the limits of the different constraints applying to them, to do their best for W; and I am sure that the views which each holds of the other are likely to make it less easy for the right decisions to be taken in W's interests.  I strongly suspect that if the parties had had a proper and constructive working relationship the decision of 31st August would not have been taken in the way that it was: Mr S would have been prepared to have a meeting with Mr Waddington or Miss Taylor, and the defendants would have taken more trouble than they did to explain themselves.  I very much hope that both parties will do their best in future to calm down, and to attempt to resolve the transport problems, and the other problems affecting W's education, on the basis that each is acting in good faith.  An adverse finding in judicial review proceedings would not be in keeping with the more co-operative approach which I strongly wish to encourage; and for that reason also I do not propose to make any order.  It goes without saying, however, that I make this decision on the basis that for all practical purposes the defendants are bound by the offer which was made to me and which I have recorded.  
42.	Accordingly for those reasons I make no order for the claimant's application.
43.	MR S:   My Lord, I would ask for costs in relation to this matter.  The offer that you referred to in the judgment was only made pursuant to the application being brought.  In my submission that offer would not realistically have been made had the application not been brought and I would seek costs.  There is the added complication that there is, as I said at the hearing, a separate JR relating to the termination of W' s place at Whitefield in July 2005, where the issue of costs is still outstanding.  Indeed, the final determination of that application is still outstanding and my suggestion would be that the issue of costs in this action be joined with the issue of costs in the other action. 
44.	MR JUSTICE UNDERHILL:  Thank you.  I need not hear you, Mr Rutledge.  I do not propose to make an order for costs in this case.  The primary reason is that although Mr S has substantially succeeded to some extent, he has succeeded on only part of the arguments which he advanced and that part on which he succeeded was not a part which he advanced at all in the original way in which the claim form was presented.  That, I say, is my primary reason, but it is a decision I am pleased to come to because it is consistent with my view that I do not want either party to come away from this in any sort of triumphant way -- I am not suggesting Mr S would be triumphantist but I want to avoid so far as possible a perception of winners and losers.  
45.	If you are about to make an application, Mr Rutledge, I will hear it but you will guess that the ground will be fairly stony.
46.	MR RUTLEDGE:  Yes, I understand.  That does not really leave scope for any application for costs in these proceedings, but one can understand that those behind me formed a view that the points of law that were raised did not succeed, although in lay man's terms one could perhaps describe it as a "draw" and I am very conscious of your comments, my Lord, that the parties should calm down and cooperate and W should be the primary interest.  But perhaps it would help those behind me if one could reiterate why it would not be appropriate for a costs order to be made. 
47.	MR JUSTICE UNDERHILL:  Mr Rutledge, I think it is adequately clear, it is a mirror image of what I said to Mr S.  Although he has not succeeded on some of his fundamental points of law, he has satisfied me, and it has appeared from my judgment, that this was not fairly handled by the defendants.  There may well be mitigating circumstances here, I am sure there are, but the fact is that you have not won this case.  It is a draw and I would not like to say who comes out the better out of the draw, but certainly you come no better out of it than Mr S. 
48.	MR RUTLEDGE:  I think that is more than adequate to satisfy the parties.
49.	MR S:   My Lord, I would ask for leave to appeal if only just to keep my powder dry in relation to the matter generally to give it further consideration.  The concept of a draw in this action is, I have to say, one that I don't think occurred to me at the outset or indeed during the course of the action and I would be surprised if it had occurred to the defendants but I certainly would not rule out the possibility of an appeal and therefore I would seek leave in general terms.   
50.	MR JUSTICE UNDERHILL:  You would have to persuade me that one of the points on which you lost was a hard-edged point of law on which there was a reasonable prospect of your succeeding.  At the moment I cannot see which point that would be.
51.	MR S:   My Lord, I think an appeal would effectively be based upon your Lordship's decision to decline to make an order that in the circumstances of this particular case the defendants' decision was Wednesbury unreasonable or -- 
52.	MR JUSTICE UNDERHILL:  Yes, I think that is how you have to put.  I think the nearest you come to a hard-edged point is what I have called your "root and branch point" that in the case of someone like W, although there may be a discretion, it is a discretion which can only be exercised one way.  No, I am not prepared to give permission on that basis.
53.	MR S:   So be it.  
54.	MR JUSTICE UNDERHILL:  Is there anything else? 
55.	MR RUTLEDGE:  My Lord, just one housekeeping matter, those behind me are obviously keen to examine the transcript that may be forthcoming. 
56.	MR JUSTICE UNDERHILL:  I have never quite got to the bottom of what the procedures here are, but maybe the associate can tell you.  There are, however, I know, because I have had it before, procedures whereby the provision of a transcript can be expedited, possibly you have to pay.  
57.	MR RUTLEDGE:  So long as it is in the pipeline.  
58.	MR JUSTICE UNDERHILL:  It will only be if you ask for it.  So you had better make the necessary enquiries.  What normally happens is it comes to me to correct before it comes to you, and I prefer that, especially when one has had to deliver a long judgment extemporary and I am sure there will be some minor tidying up, though no changes of substance -- I say extemporary, it is not extemporary but a judgment orally I should say -- but I ought to be able to turn that around within 24 hours once it reaches me.  In an extreme case I am prepared to and have authorised you seeing the uncorrected transcript, but I would need to know why that was necessary.  
59.	MR RUTLEDGE:  That is not my intention, my Lord. 
60.	MR JUSTICE UNDERHILL:  You get on with getting it from the shorthand writers, they will get it to me, I will correct it as quickly as I can and at that point you will get it.  
61.	Can I just say informally what I have already said in the judgment, and I do not know the background to this case but I do know from my experience in courts generally how litigation can have a very souring effect on people who have to get on in a non-litigation context.  I, without passing any judgments at all, I can see how some of Mr S's correspondence may have got up Mr Waddington's nose; I can see how some of Mr Waddington's reactions may have seemed to Mr S inappropriate and intemperate.  These things are very understandable in human terms and I pass no judgments.  I think that it is important, however, that the parties do try, if they cannot actually like one another to get on with one another because they are going to have to go on dealing with one another.  It is easy for me to sit up here and say but I hope you will both take that to heart as much as possible.