Jonathan Auburn

Professional Summary

Called 1999

Contact Details

E T +44 (0)20 7632 8500 Clerk Lucy Barbet Clerk John Davitt Clerk Christopher Smith E

Jonathan is a highly experienced junior, practicing in the fields of public law / judicial review, local government, community care, education law, mental capacity and mental health law. He is recommended by the legal directories as a leading junior in four categories: administrative and public law, local government law, community care and education law. Jonathan is co-author of OUP’s highly-rated text on public law, ‘Judicial Review: Principles and Procedure’ (2013), as well as writing for the White Book, Phipson on Evidence, and Education and the Courts. Jonathan spent 10 years on the Attorney General’s panel of Treasury Counsel, and until recently was Secretary to the Administrative Law Bar Association.

Jonathan is originally from Australia, where he graduated with first class honours and top of his law school, before completing a BCL and D.Phil at Magdalen College, Oxford. Prior to coming to the bar he worked in Australia as a solicitor and as a judicial assistant in Australia’s highest court, the High Court of Australia, and in the UK as judicial assistant to Lord Woolf MR.

Specialisms

Public

Jonathan is a leading senior junior in the field of public / administrative law and local government law. He is highly ranked in legal directories across four areas of public law and local government work. Chambers and Partners described him in this field as a “top pick”, “fantastic knowledge of public law”, “offers pragmatic, client-friendly advice”, “completely committed to the cause … robust”, “enjoys an excellent profile in the market. His understanding of the issues facing local authorities is first-rate”, “He provides solid answers that are straight to the point”, “He is a very strong advocate with an effective, quietly persuasive manner”, “extensive knowledge of local government matters”.

Jonathan regularly represents local government, health bodies and individuals. His current work includes:

  • acting for four local authorities bringing a judicial review challenge to a CCG’s reorganisation of hospital services in the area of those authorities,
  • defending a consultation and equalities challenge to a service closure decision,
  • conducting an investigation into alleged wrongdoing by senior officers in a public authority,
  • a challenge to a local authority’s refusal to place individuals with a company providing supported living placements, and
  • acting in a number of challenges to service closures and funding cuts cases, some of which are listed in the separate sections for specific areas of service provision

Recent reported cases include:

  • R (Ahmed) v Enfield LBC, Administrative Court, 31 March 2017, Approach to interim relief for urgent injunctions requiring local authorities to accommodate
  • R (Davey) v Oxfordshire CC [2017] EWHC 354, Leading case on judicial review of Care Act decisions and changes to social care budgets / direct payments
  • AP v Tameside MBC [2017] EWHC 65 (QB), (2017) 20 CCL Rep 5, Limitation period for brining human rights claims where claimant is mentally incapacitated
  • R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16 SC, April 20 2016 [2016] 1 WLR 1565; [2016] 4 All ER 720; [2016] 3 CMLR 17; [2016] HRLR 11; [2016] INLR 460, Power to detain pending deportation did not unlawfully discriminate against EEA nationals
  • R (Collins) v Nottinghamshire County Council [2016] EWHC 996 (Admin) QBD (Admin Ct), February 11 2016 (2016) 19 CCL Rep 494, Given allegations of financial impropriety against the interested party, the local authority had acted lawfully in suspending its position as an accredited provider of direct payment support services to persons in need of social care
  • R (C) v Secretary of State for Work and Pensions (Zacchaeus 2000 Trust intervening) [2015] EWHC 1607 (Admin), [2015] ACD 118, 165 NLJ 76, test case challenge to DWP’s restructuring of benefits

Inter-agency Disputes:

Jonathan has extensive experience of disputes between governmental bodies, including disputes between central and local government, between different local authorities, and disputes between local authorities and health bodies. Recent cases include –

  • a dispute between two local authorities as to responsibility for an individual’s s.117 mental health aftercare,
  • a dispute between a local authority and a health body as to whether a person should properly be recognised as eligible for continuing healthcare (CHC) funding,
  • a three-way dispute between an individual, a local authority and central government as to responsibility for a person subject to immigration control who has health and social care needs,
  • a claim by a local authority that another local authority should compensate it for the cost of past social care provided to a person moved between local authority areas,
  • a three-way dispute as to who should pay for care provided to a disabled student living in student accommodation away from his parents’ home area.

Governance:

Jonathan is currently advising on a number of local authority governance matters, including:

  • advising a monitoring officer in relation to an elected member’s non-disclosure of pecuniary interests, as well as regarding the effect on the resulting decision,
  • a complaint against an elected member concerning standards,
  • advising on the effect of section 25 of the Localism Act 2011 on bias allegations.

Local Government Finance:

Jonathan has extensive experience in advising on local authority finance and budgetary matters, and in bringing and defending claims relating to local authority finances and budgets, including

  • acting in a challenge to a decision by central government to reduce in year grant allocations for a particular service,
  • representing in a judicial review challenge to funding decisions made within a budget.

Inquests & Investigations:

Jonathan represents both public bodies and families in inquests. Recent inquest work includes

  • inquest into death of a man discharged from section 3 MHA detention with family unaware of discharge, and
  • acted for a local authority in a three week jury inquest into the death of a man with significant learning disabilities and subject to DOLS, which led to a rider of neglect against the health trust, read about it here.

He has undertaken a number of complex investigations on behalf of public bodies and employers, including local authority independent person investigations. He recently conducted the following investigations:

  • Investigation carried out on behalf of Waltham Forest Council into allegations in the Evening Standard against local councillors.
  • investigation into alleged wrongdoing by the senior management of a large social services authority.

Elections:

Jonathan advises and represents in local government election disputes and litigation. He has recently advised on an allegation of misleading statements in electoral material, the practical application of the Purdah convention, and advising a Monitoring Officer as to the appropriate approach where the propriety of the notice of a meeting was contested, and that meeting changed the balance of the Council.

Health & Community Care

Jonathan is one of the leading juniors in this field at the Bar, listed by Chambers & Partners in the top tier of counsel for community care law every year since that directory’s creation of a listing in this field. Chambers & Partners describe him as “a real star junior … excellent and knows stacks about community care … he knows the field inside out, and has the extra advantage of experience acting for both claimants and local authorities”, “he remains a go-to for both local authorities and claimants”, “a force to be reckoned with”, “covers all the bases, and if he raises a point, you need to look into it”.

Jonathan is currently acting in the following areas:

  • defending a number of challenges to alleged failure to properly assess care needs, and challenges to the amount of funds provided to meet needs,
  • defending a number of age assessment decisions, including one in which it was agreed that a Merton assessment was not carried out, and another involving consideration of the weight to be placed on identity papers alleged to be from Iraq,
  • acting for four local authorities bringing a judicial review challenge to a CCG’s reorganisation of hospital services in the area of those authorities,
  • defending a consultation and equalities challenge to a service closure decision,
  • a challenge to a refusal to provide support to an asylum seeking family, and a separate challenge relating to a person asserting EEA rights,
  • a challenge to a decision to terminate the provision of support by way of direct payments, and another challenge to a decision to require DP recipients to not use a particular provider,
  • a challenge to a decision to accommodate pursuant to section 17 rather than section 20 Children Act,
  • a claim that a young person should have been recognised as a former relevant child and eligible for leaving care duties, and a separate case concerning whether leaving care duties still apply where there were breaks in education,
  • Jonathan is currently acting in a number of cases concerning local authority fee-setting for private care homes, and recovery from families of care home fees paid by local authorities.

Recent reported cases include:

  • R (Ahmed) v Enfield LBC, Administrative Court, 31 March 2017, Approach to interim relief for urgent injunctions requiring local authorities to accommodate
  • R (Davey) v Oxfordshire CC [2017] EWHC 354, Leading case on judicial review of Care Act decisions and changes to social care budgets / direct payments
  • A Hospital NHS Trust v CD and another [2015] EWCOP 74 Court of Protection, November 13 2015 2016) 149 BMLR 137; [2016] COPLR 1, Hospital trust granted permission to perform a hysterectomy on a 43-year-old patient suffering from paranoid schizophrenia
  • R (C) v Secretary of State for Work and Pensions (Zacchaeus 2000 Trust intervening) [2015] EWHC 1607 (Admin), 165 NLJ 76, successful challenge establishing breach of duty to decide applications within a reasonable time,
  • R (KM by her litigation friend RM) v Northamptonshire County Council [2015] EWHC 482 (Admin), test case judicial review challenge to local authority charging policies,
  • R (LH) v Shropshire Council [2014] EWCA Civ 404, [2014] PTSR 1052, judicial review challenge to reorganisation of local authority services and service closures

 Mental Capacity & Healthcare:

Jonathan has an extensive practice in the related fields of mental capacity and healthcare law. He regularly acts for local authorities, health authorities and individuals in the Court of Protection, High Court, County Court (displacement proceedings) and MHRT. Recently Jonathan acted in AP v Tameside MBC [2017] EWHC 65 (QB), (2017) 20 CCL Rep 5, now the leading case on the limitation period for bringing human rights claims brought by mentally incapacitated claimants. Jonathan acted in the important case on the relationship between the Mental Capacity Act 2005 and the Mental Health Act 1983, J v Foundation Trust and others, the recent test case proceedings concerning the procure for court authorisation of deprivations of liberty, and has acted in a wide variety of mental health and capacity cases, covering issues such as capacity to marry and enter into sexual relations, capacity to litigate, cross-border capacity cases, urgent medical treatment cases, mental health habeas corpus cases, and many other areas.

COP Welfare & DOL Cases:

Recent mental capacity / DOL cases include:

  • Re X and others (Deprivation of Liberty) [2015] 2 All ER 1165, [2015] 2 FCR 28, 141 BMLR 225, 164 NLJ 7633 (see the listing under Public Law, above), Jonathan acted for CCGs in this hearing to give guidance on the approach to court authorisation of deprivations of liberty
  • LCC v JN and Others, 2015, Court of Protection: deprivation of liberty for a man requiring an intensive care package while in the community to prevent sexual offending behaviour
  • SCC v SWB, 2015, Court of Protection: capacity and best interest case relating to an individual with long term alcoholism who refuses to engage with alcohol support services
  • A Local Authority v PMS, 2015, Court of Protection: best interests and DOL case concerning vulnerable adult with learning difficulties who regularly prostituted herself in local area
  • Stoke-on-Trent CC v AY & Others, Court of Protection & County Court: combined COP case and Forced Marriage Protection Order application concerning young learning disabled man whom parents had sought to have married in South Asia.
  • AP v Tameside MBC, 2017 1 WLR 2127; (2017) 20 CCL Rep 5: Here was no presumption under the Human Rights Act 1998 in favour of an extension of time to bring proceedings for claimants who lacked capacity and therefore had to depend on others in order to make a claim

Healthcare Cases:

Jonathan also acts in a range of cases involving healthcare issues. Current ongoing work includes –

  • advising on access to the NHS by foreign nationals,
  • a challenges to the failure to apply NICE guidance,
  • a challenges to a refusal to fund specific treatment recommended by an independent clinician,
  • a challenge to a decision to transfer an adult thought to be lacking capacity from hospital to a residential unit he does not wish to go to.

Recent reported healthcare cases include:

  • A Hospital NHS Trust v CD [2015] EWCOP 74: best interests welfare case concerning whether to perform a hysterectomy on a 43-year-old patient suffering from paranoid schizophrenia
  • Re A [2015] EWHC 1709 (Fam), Jonathan acted for the healthcare trust in this case concerning the court’s approach to secure accommodation orders where no placement can be identified
  • AY v Hertfordshire Partnership NHS Foundation Trust [2015] EWCOP 36, welfare case concerning a mother who held rigid views that her 25-year-old son’s autism should be treated via diet restriction and nutritional supplements instead of the treatments recommended by clinicians
  • NHS Northern Eastern Western Devon CCG v MB and Others, 2015, Court of Protection: best interests welfare case concerning an individual with an uncertain mix of acquired brain injury and mental health issues
  • Clare Dyer v Abertawe Bro Morgannwg University Local Health Board, Administrative Court, 2014, urgent judicial review claim brought by family of young woman with learning difficulties and psychiatric problems, who was repeatedly non-compliant and violent, Jonathan successfully defended the claim for the Health Board

 

Education

Listed by both Chambers & Partners and The Legal 500 as a leading junior in the field, Jonathan represents and advises both claimants and defendants (local authorities, Academies and independent schools) in the full range of education matters. Chambers and Partners describes his work in education law as “very effective and he never sits on the fence”, and that he “displays a great practical sense of where the case is going and how to dispose of it. He picks out the commercially significant points and shows great brevity in both his drafting and his submissions to the court”.

His recent work also includes:

  • a challenge to an exclusion decision concerning a child whom it was alleged had committed a serious sexual offence, case concerned reliance on anonymised evidence and the effect of flaws in the initial investigation,
  • a challenge to a school’s admissions policy granting preference to siblings previously refused admission,
  • acting for a school in a challenge to an Ofsted finding of inadequacy,
  • a dispute before the Schools Adjudicator concerning ownership of school playing field land following Academy conversion,

Recent reported education cases Jonathan has been involved in include:

  • Royal Borough of Kensington & Chelsea v GG [2017] UKUT 141 (AAC); UT (AAC), March 25 2017; [2017] ELR 367, courses provided by the Open University to the applicant should not have been classed as ‘higher education’ excluding him from assessment for an education, health and care plan.
  • Camurat v Thurrock Borough Council [2015] ELR 1, relationship between safeguarding duties and confidentiality in giving of employment references (Jonathan acted successfully for the school and local authority resisting the claim)
  • R (CR) v Independent Appeals Panel for the London Borough of Lambeth [2014] EWHC 2461 (Admin), [2014] ELR 359 (first judicial review challenge to the new system of admissions appeals)

Sen:

Jonathan frequently represents academies, school, local authorities and individuals in SEN cases before the FTT, both in appeals against Statements and judicial review challenges. In SEN appeals he has particular experience in –

  • appeals asserting a need for a waking day / 24 hr curriculum,
  • appeals asserting a need for ABA delivered at home,
  • appeals involving large social care packages,
  • appeals by parents of high-functioning ASD / Aspergers,
  • disability discrimination claims against decisions to exclude children with SEN.

Jonathan’s recent cases include:

  • an appeal against a decision to name a maintained school, when the child had been attending an independent school his parents had placed him in and initially funded,
  • a placement appeal seeking an extremely costly independent school, in which the parents’ three experts had changed their opinions following parental change of preference,
  • a disability discrimination claim brought by parents of a child with behavioural difficulties who had been repeatedly violent at school, ending in permanent exclusion,
  • a judicial review challenge alleging failure to provide suitable education otherwise than at school for an excluded SEN child.

Independent Schools Litigation:

Jonathan also regularly advises and represents in cases involving the independent sector. He has appeared in most of the leading cases involving independent schools, including Gray v Marlborough College (the leading case on disciplinary exclusions) and T v Hall Schools (the widely reported “pushy parents” case, concerning the ability of an independent school to terminate placements due to parental behaviour). He is currently defending a claim by parents alleging failure to protect their child from bullying by peers, and a separate claim alleging breach of consumer rights.

Jonathan is a contributor to McManus, Education and the Courts (Jordans, 2013).

Higher Education:

Jonathan is highly rated in both Chambers & Partners and The Legal 500 as a leading junior in the field of Education Law. Legal 500 describe him as “the go-to barrister for complex higher education cases”. Chambers and Partners describe him as “an excellent advocate, who knows a lot about education law”.

He has wide experience of representing universities and colleges and is currently acting in the following -:

  • a complaint to the Office of the Independent Adjudicator,
  • a contract and negligence claims by a student who was unable to complete his course, and later alleged substandard teaching and course organisation,
  • an age discrimination claim by a mature student,
  • a claim by a student for failure to protect him from racial harassment by other pupils,
  • a judicial review claim against a university alleging erroneous marking of an exam, and loss of exam scripts.

Recent decided cases include Shalom v Newham College (race, religion and age discrimination), Barnfather v University of Salford (breach of contract, breach of alleged statutory duties, negligence), Bilqes v Burnley College (religious discrimination, Article 9).

Employment

Jonathan regularly advises and represents employers, particularly public bodies and third sector organisations, in employment and disciplinary matters. He advises on the full range of employment law issues, including whistleblowing, discrimination of all kinds, pay issues, disciplinary and grievance procedures, and contract issues.

Recent cases include Camurat v Thurrock Borough Council [2015] E.L.R. 1, on the inter-relationship between confidentiality in compromise agreements, duties of employers in giving references, and statutory duties to make safeguarding disclosures, Shalom v Newham College (race, religion and age discrimination, harassment, victimisation, failure to investigate), Bilqes v Burnley College (religious discrimination).

Jonathan has also conducted investigations for employers and public bodies, including acting as independent grievance or disciplinary officer for particularly important or sensitive investigations.

The 2016 edition of Chambers and Partners describes him as 2016: “a real star junior … excellent”.

Professional Discipline & Regulatory Law

Jonathan is experienced in advocacy before a number of different disciplinary tribunals, and in acting in regulatory matters, particularly those relating to the teaching, social care and medical professions.

He has contributed to the most recent edition of Harris on Disciplinary and Regulatory Proceedings, as well as co-authoring a text on public law: ‘Judicial Review: Principles and Procedure’.

Recent work includes:

  • defending a headteacher in disciplinary proceedings before the National College for Teaching and Leadership,
  • representing a residential college in a challenge to an Ofsted inspection report concerning handling of issues of restraint,
  • advising on a matter concerning the regulation of care homes,
  • defending a challenge to disciplinary proceedings against a student nurse.

Procurement & State Aid

Jonathan represents and advises local authorities and health bodies in procurement and contracting challenges. His recent work includes:

  • currently defending a challenge to a refusal to contract with a company providing supported living services.
  • currently defending two challenges to a decision by a local authority to suspend all contractual relations with its largest provider of direct payment support services, and a decision that service users may not use that support service provider.
  • Trafford v Blackpool Borough Council [2014] EWHC 85 (Admin), [2014] 2 All ER 947, [2014] LGR 180, [2014] PTSR 989, 164 NLJ 7593, [2014] 1 P & CR D51, local government procurement, successful judicial review challenge to local authority decision to terminate contract of solicitor’s firm.
  • R (Redcar and Cleveland Independent Providers Association and Others) v Redcar and Cleveland Borough Council [2013] EWHC 4 (Admin); (2013) PLLR 023 – refusal to contract with a provider not on an approved lists of providers

Recommendations

“A solid adviser with an excellent brain” Legal 500

“Extremely knowledgeable and approachable, and a barrister with good client care skills and a thorough grasp of the law. He inspires confidence”, “Very efficient, he’s extremely quick with the papers and machine-like in turning things around quickly”, “He has very good knowledge of community care and is a force to be reckoned with”, “He covers all the bases, and if he raises a point, you need to look into it”, also “He has a fantastic knowledge of public law”, “Offers pragmatic, client-friendly advice”, “Very approachable and flexible in the way that he works and has a very good understanding of clients’ needs” Chambers and Partners

“a real star junior … excellent” Chambers and Partners

“He gives very good, practical advice that’s easy to understand”, “Clients like his practical attitude, his approachability and his flexibility”, “Good on his feet, he knows the field inside out, and has the extra advantage of experience acting for both claimants and local authorities”, “a model junior”, “very competent and on top of the material” Chambers and Partners

“a very efficient and very erudite, no-nonsense barrister. He’s very good with clients and has a real depth of knowledge”, “He is excellent on his feet … He is always available when the client wants to speak to him”, “He will push his points robustly, and will get results for his client”, “an excellent advocate and a good man to have in your corner”, “Very good at getting on top of complex cases, his key strength lies in his brilliant and assured cross-examination technique, which has achieved fantastic results” Chambers and Partners

“very good, handles a lot of major work”, “very analytical brain”, “Top pick” “completely committed to the cause and bursting with energy”, robust”, “a powerful advocate who demonstrates a phenomenally detailed understanding of the law”, “whatever he undertakes, he does a very fine job” “enjoys an excellent profile in the market. His understanding of the issues facing local authorities is first-rate and he perpetually offers sensible, user-friendly advice” Chambers and Partners

Recent Cases

R (Davey) v Oxfordshire CC
[2017] EWHC 354
Leading case on judicial review of Care Act decisions and changes to social care budgets / direct payments

AP v Tameside MBC
[2017] EWHC 65 (QB), (2017) 20 CCL Rep 5
Limitation period for brining human rights claims where claimant is mentally incapacitated

R (Nouazli) v Secretary of State for the Home Department
[2016] UKSC 16 SC, April 20 2016 [2016] 1 WLR 1565; [2016] 4 All ER 720; [2016] 3 CMLR 17; [2016] HRLR 11; [2016] INLR 460
Power to detain pending deportation did not unlawfully discriminate against EEA nationals

R (Collins) v Nottinghamshire County Council
[2016] EWHC 996 (Admin) QBD (Admin Ct), February 11 2016 (2016) 19 CCL Rep 494
Given allegations of financial impropriety against the interested party, the local authority had acted lawfully in suspending its position as an accredited provider of direct payment support services to persons in need of social care

R (C) v Secretary of State for Work and Pensions (Zacchaeus 2000 Trust intervening)
[2015] EWHC 1607 (Admin), [2015] ACD 118, 165 NLJ 76
Test case challenge to DWP’s restructuring of benefits

Re X and others (Deprivation of Liberty)
[2015] 2 All ER 1165, [2015] 2 FCR 28, 141 BMLR 225, 164 NLJ 7633 (see the listing under Public Law, above)
Jonathan acted for CCGs in this hearing to give guidance on the approach to court authorisation of deprivations of liberty

New, Articles & Publications

Auburn, Moffett and Sharland, ‘Judicial Review: Principles and Procedure’ (2013, OUP)

Civil Procedure (“the White Book”), editor (ongoing)

Phipson on Evidence, contributor (ongoing)

Education and the Courts, contributor, 3rd edition (2012, Jordans)

Atkins Court Forms, Disclosure volume (co-author, ongoing)

Legal Professional Privilege, Law and Theory (1999, Hart)

Education

LLB, University of Western Australia

BCL, Magdalen College, Oxford

D.Phil, Magdalen College, Oxford

Other

Keen follower of the Western Australian cricket team & Arsenal FC.

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Professional title: Barrister

Full name (as registered with Bar Standards Board of England and Wales): Jonathan Auburn

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