Jonathan Auburn KC

Jonathan is a KC in the field of public / administrative law and local government law. He is highly ranked in legal directories across five 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 a number of central government departments, as well as local government, health bodies and individuals. His current work includes:

• representing the Ministry of Defence in the Covid Inquiry;
• advising a large number of local authorities, and the Local Government Association, in the implementation of the new “Fair Cost of Care” guidance and setting care home fee rates;
• defending two separate challenges to decisions to decline to hold public inquiries into allegations of historic abuse;
• defending a University that cancelled a pro-Palestinian art exhibition; the challenge alleging breach of Article 10 free speech rights and discrimination;
• defending a challenge alleging that substantial cuts to a service’s budget was decided unlawfully;
• defending a claim that a local authority discriminated against committed Christians in declining to further their application to become foster parents;
• a dispute as to the circumstances in which a public officials could be sanctioned for tweets on issues of political and social debate (transgender rights); and
• defending a consultation and equalities challenge to a regional service reorganisation.

Jonathan also provides representative associations, including the Local Government Association, ADASS and the Bar Standards Board with strategic advice on national policy issues, particularly on policy reform, human rights and free speech issues in his areas of expertise.

Recent reported cases include:

R (Gardner & Anor) v Secretary of State for Health & Social Care, NHS England and Public Health England (now UK Health Security Agency)
[2022] EWHC 967 (Admin), [2022] 4 All ER 896 [2022] PTSR 1338, Divisional Court
Challenge to the Government’s initial response to the covid crisis, in which it instituted a policy of urgent discharges from hospitals into care homes, to free hospital bed space for the then anticipated wave of hospital admissions. Jonathan appeared for the Secretary of State for Health & Social Care and also for Public Health England.

R (Miller) v College of Policing
[2022] 1 WLR 4987, [2022] HRLR 6, Court of Appeal
Challenge to police guidance on the recording of non-criminal hate incidents, turning on issues of free speech and Article 10.

R (HPSPC Ltd and National Education Union) v Secretary of State for Education
[2022] EWHC 3159 (Admin)
Challenge brought by the National Education Union to the Secretary of State for Education’s decision on the future of Holland Park School; a well-known school in West London. Jonathan appeared for the Secretary of State for Education.

R (Shashikanth) v NHS Litigation Authority and NHS England
[2022] EWHC 2526 (Admin), [2023] ACD 2.
Whether GPs are obliged under NHS contracting arrangements to disclose patient data to local GP networks, under the new regime for primary care (Primary Care Networks); also whether a challenge to a decision on NHS termination of a GP’s contract can be subject to judicial review. Jonathan appeared for NHS England.

R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government (No. 1)
[2021] 1 WLR 3714, [2021] EWHC 1093 (Admin)
Whether it was lawful for local authorities to hold full council meetings remotely. Jonathan appeared for the Local Government Association.

Devon Partnership NHS Trust v Secretary of State for Health and Social Care
[2021] 1 WLR 2945, (2021) 24 CCL Rep 41, [2021] MHLR 248, Divisional Court
Where doctors are minded to “section” (i.e. compulsorily detain) patients under the Mental Health Act, whether they can they do so by assessing the patient by means of video (e.g. Zoom or Skype etc), or whether they have to be physically in the same room as the patient during such assessments.

Inter-agency Disputes
Jonathan has extensive experience of responsibility and finding disputes between governmental bodies, including disputes between central and local government, between different local authorities, and disputes between local authorities and ICBs. These include both judicial review claims, and restitution claims brought as Part 7 claims. Recent cases include –

• a three-way dispute between two local authorities and an ICB as to who is responsible, and who pays, for an individual’s s.117 mental health aftercare package;
• a dispute between a local authority and an ICB as to eligibility for continuing healthcare (CHC) funding, including both a restitution claim for past care provided by the local authority, and a challenge to the latest eligibility decision by the ICB;
• bringing a £1m restitution claim by a local authority against an ICB for the ICB’s failure to fund care, leaving the local authority to fund that care for many years;
• a claim by a local authority that another local authority should compensate it for the cost of past social care provided to a person who moved between local authority areas; and
• 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 acting 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; and
• acting as independent investigator, investigating allegations that a Councillor’s use of social media breached Council policies and the Nolan Principles.

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;
• defending a judicial review challenge to funding decisions made within a budget; and
• advising a number of local authorities on legal compliance when restructuring services and reducing spending and service delivery.

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.

Jonathan has experience of representing public bodies in major national public inquiries. Most recent public inquiries worked on are –

• the Covid Inquiry (leading counsel for a Central Government Department); and
• the Infected Blood Inquiry.

Jonathan has undertaken a number of complex investigations on behalf of public bodies, 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 serious financial wrongdoing by the senior leaders of a large social services authority;
• investigation into complaints of race and sex discrimination against the Chief Executive and other senior leader of a local authority, the complaints brought by two senior officers;
• investigation into complaints of race and sex discrimination and bullying against the CEO of a high-profile national charity.

He has represented a range of public bodies 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 social services 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.

Jonathan is a leading KC in this field, listed in the directories in the top tier of counsel for community care law. 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:

• advising a large number of local authorities, and the Local Government Association, in the implementation of the new “Fair Cost of Care” guidance and the setting of care home fee rates;
• defending a consultation and equalities challenge to a service closure decision;
• a three-way dispute between two local authorities and an ICB as to who is responsible, and pays for, an individual’s s.117 mental health aftercare package;
• a dispute between a local authority and an ICB as to whether a person should be recognised as eligible for continuing healthcare (CHC) funding;
• bringing a £1m restitution claim by a local authority against an ICB for the ICB’s failure to fund care, leaving the local authority to fund that care for many years;
• acting in a challenge to the termination of a GP’s contracts; and
• acting in a dispute between a local authority and an ICB as to which body should fund specific public health functions.

Recent reported cases include:

R (Gardner & Anor) v Secretary of State for Health & Social Care, NHS England and Public Health England (now UK Health Security Agency)
[2022] EWHC 967 (Admin), [2022] 4 All ER 896 [2022] PTSR 1338, Divisional Court
Challenge to the Government’s initial response to the covid crisis, in which it instituted a policy of urgent discharges from hospitals into care homes, to free hospital bed space for the then anticipated wave of hospital admissions. Jonathan appeared for the Secretary of State for Health & Social Care and also for Public Health England.

R (Shashikanth) v NHS Litigation Authority and NHS England
[2022] EWHC 2526 (Admin), [2023] ACD 2.
Whether GPs are obliged under NHS contracting arrangements to disclose patient data to local GP networks, under the new regime for primary care; also whether a challenge to a decision on NHS termination of a GP’s contract can be subject to judicial review.

Devon Partnership NHS Trust v Secretary of State for Health and Social Care
[2021] 1 WLR 2945, (2021) 24 CCL Rep 41, [2021] MHLR 248, Divisional Court
Where doctors are minded to “section” (i.e. compulsorily detain) patients under the Mental Health Act, whether they can they do so by assessing the patient by means of video (e.g. Zoom or Skype etc), or whether they have to be physically in the same room as the patient.

A Mother v Derby City Council
[2021] EWCA Civ 1867
Test case on the legality of local authorities placing children in care in unregistered placements, where there is a chronic shortage across the country of beds in registered placements

Mazhar v Birmingham Community Healthcare Foundation NHS Trust
[2021] 1 WLR 1207, Court of Appeal
Liability of judges / the court for errors in an urgent out-of-hours injunction depriving a disabled person of his liberty.

R (Lancashire CC) v Secretary of State for Health and Social Care
[2021] EWHC 268 (Admin), [2021] 2 WLUK 211
Challenge to a determination of an “ordinary residence” dispute, i.e. which local authority is responsible for a person. The case was the first test of the “Greenwich principle”: the principle by which, if a local authority should have taken particular steps but failed to take them, ordinary residence and responsibility is determined on the presumed factual basis that the local authority had in fact taken those steps.

R (SH) v Norfolk County Council
[2020] EWHC 3436 (Admin), Admin Ct, December 18 2020, [2021] PTSR 969
Local authority’s decision to change the basis on which it calculated the charges made to disabled people in respect of their care needs discriminated against severely disabled people

Healthcare Cases:

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

• 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:
R (Shashikanth) v NHS Litigation Authority and NHS England
[2022] EWHC 2526 (Admin), [2023] ACD 2.
Whether GPs are obliged under NHS contracting arrangements to disclose patient data to local GP networks, under the new regime for primary care; also whether a challenge to a decision on NHS termination of a GP’s contract can be subject to judicial review.

R (Haffiz) v NHS Litigation Authority
[2020] EWHC 3792 (Admin)
Whether decisions of NHS contract dispute adjudicators are amenable to judicial review. Operation of the GMS contracting regime.

Mental Capacity & Mental Health

Jonathan has an extensive practice in the related fields of mental capacity and mental health law. He regularly acts for local authorities, health authorities and individuals in the High Court and Court of Protection. Recent mental capacity and mental health cases include:

Devon Partnership NHS Trust v Secretary of State for Health and Social Care
[2021] 1 WLR 2945, (2021) 24 CCL Rep 41, [2021] MHLR 248, Divisional Court
Where doctors are minded to “section” (i.e. compulsorily detain) patients under the Mental Health Act, whether they can they do so by assessing the patient by means of video (e.g. Zoom or Skype etc), or whether they have to be physically in the same room as the patient.

A Mother v Derby City Council
[2021] EWCA Civ 1867
Test case on the legality of local authorities placing children in care in unregistered placements, where there is a chronic shortage across the country of beds in registered placements

Mazhar v Birmingham Community Healthcare Foundation NHS Trust
[2021] 1 WLR 1207, Court of Appeal
Liability of judges / the court for errors in an urgent out-of-hours injunction depriving a disabled person of his liberty.

Listed by both Chambers & Partners and The Legal 500 as a leading KC 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:

R (HPSPC Ltd and National Education Union) v Secretary of State for Education
[2022] EWHC 3159 (Admin)
Challenge brought by the National Education Union against the Secretary of State for Education over the future of Holland Park School; a well-known school in West London.

R (CHF) v Newick CE Primary School
[2022] PTSR 756, [2022] ELR 24
Case establishing that schools could keep a child away from the school site indefinitely other than by the statutory exclusions process, as a “safeguarding separation”, to safeguard the welfare of another pupil at the school.

CAGE UK v Secretary of State for Education
[2022] EWHC 2373 (Admin)
Political impartiality, statutory ban on indoctrination in schools. Jonathan successfully acted for the Secretary of State in resisting this challenge to the Secretary of State’s policy of requiring schools to not work with any body which denies Israel’s right to exist.

R (Khalsa Academy Trust Ltd) v Secretary of State for Education
[2022] ELR 55
Challenge by one of the only Sihk-faith academy trusts in the country, to the revocation of their management of a particular Sihk-faith academy (school) on serious safeguarding grounds. The claim alleged serious public law error, and discrimination against the academy proprietors on religious grounds.

R (QXH) v UK Research & Innovation, Administrative Court, 2021
Test case challenge to the system of funding research in UK Universities. The UK invests £2billion on scientific research annually. However, of the medical research, only 4% goes to the research pf mental health illnesses, as compared with physical health illnesses. This was a discrimination claim brought by a mental illness charity.

R (AD) v London Borough of Hackney
[2020] EWCA Civ 518, CA, April 8 2020, [2020] ELR 374; (2020) 23 CCLR 253
A local authority’s decision to reduce funding for special educational needs provision did not engage the substantive or consultation duties in the Children and Families Act 2014. Jonathan acted successfully for the Defendant

SEN:
Jonathan has acted in many SEN cases, both at tribunal level (FTT and Upper Tribunal) and High Court judicial review claims. He has done numerous disability discrimination claims in both the tribunal and the County Court. Jonathan has been involved in a number of the leading judicial review claims concerning challenging to SEN funding.

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). Most recently he has acted in a number of claims arising from allegations of per on peer sexual abuse.

Jonathan is a contributor to the Education Law Handbook (LexisNexis, 2021)

Higher Education:
Jonathan is highly rated in both Chambers & Partners and The Legal 500 as a leading KC 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 challenge by a Palestinian rights group alleging breach of Article 10 free speech rights in cancelling a pro-Palestinian art exhibition on the basis that some content was said to be anti-Semitic;
• a challenge to a decision made by the Office for Students rejecting a complaint brought by a student;
• a contract and negligence claim by a student who was unable to complete his course, and later alleged substandard teaching and course organisation,
• 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.

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, medical and dental professions.
He has contributed to Disciplinary and Regulatory Proceedings, as well as co-authoring a text on public law: ‘Judicial Review: Principles and Procedure’.
Jonathan regularly prosecutes disciplinary cases for the Bar Standards Board.

Recent work includes:

• BSB v Holbrook: when barristers may be subject to disciplinary sanction for tweets debating political or social issues;
• BSB v Crosland: disbarring of Timothy Crosland for deliberate breach of Supreme Court’s embargo on its judgment;
• 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.