3PB

Public and Regulatory; Education; Family; Property and Estates.

Overview

Matthew Wyard provides advice and representation on public law matters concerning education, health and social care, as well as private client matters, predominantly (but not exclusively) in the Court of Protection. He is described in the directories as “meticulous in his preparation and has a great way with clients, putting them at ease”, “is very detailed and will go that extra step in order to present the strongest possible case” and whose “advocacy is well beyond his year of call” (Legal 500).

For more information on Matthew’s specialist practice areas please see his area specific profiles below.

Matthew prides himself on “excellent, comprehensive and practical” advice as well as his “exemplar” client care (Chambers UK).

Matthew is a widely published legal author. He is a contributing author to the Education Law Handbook, the leading text for education law practitioners and a contributing editor to Clarke Hall and Morrison on Children. He regularly writes for Lexis PSL and Practical Law and has also been published in The Times Higher Education, the Education Law Monitor and the Solicitors Journal.

Matthew is committed to protecting and respecting your privacy. Please contact him for a copy of his privacy notice which sets out the basis upon which any personal data he may receive will be protected.

Administrative and Public Law

Matthew is an expert in public law and judicial review. He is a member of the Attorney General’s C Panel of Counsel to the Crown so regularly acts for Central Government, but is equally comfortable advising local authorities, companies, charities and individuals or providing strategic advice to regulators. He accepts instructions for urgent and out of hours applications as well as international matters.

Matthew’s experience in administrative and public law is broad and includes matters as diverse as: education, health, social care, immigration, asylum, freedom of information, planning, human rights, pharmaceuticals, professional regulation, commercial judicial review.

Matthew maintains a non contentious and contentious practice.

Recent examples of non contentious work include advising on the following matters:

• A challenge to a planning authority’s decision on Kides grounds
• A proposed traffic management order in a London Borough and its impact on disabled residents locally
• The limits of an inspection authority’s vires and the point at which it became functus
• The legality and public consultation requirements of amending a regulators complaints process
• The risks to the regulator associated with the implementation of a new Bill
• Whether a novel business idea would require registration with a particular regulator
• Whether a regulator was obliged, pursuant to ‘Managing Public Money’ to seek to recover its costs following a successful judicial review challenge
• The prioritization process to consider complaints under an ombudsman scheme
• How long a regulator was required to retain various documents under the UK GDPR
• The correct interpretation of an ombudsman schemes enabling act and whether it could investigate a company, as well as an individual
• Which public body was the correct body to employ a particular individual under the statutory scheme
• Whether employees could lawfully consume medicinal cannabis in the workplace and the risks arising to the public authority
• The enforceability of a historic covenant contained in an Abstract pre dating 1926
• The legal risks associated with a public consultation
• The applicability in the jurisdiction of an international certificate of good conduct

Examples of Matthew’s recent contentious public law practise includes:

• THTN v Secretary of State for the Home Department [2023] EWCA Civ 1222 – junior counsel for the Respondent in this appeal concerning the proper interpretation of the Supreme Court’s decision in AM (Zimbabwe)
• Land Adjacent to HMP Garth and Wymott – junior counsel in this long running planning inquiry over the building of a so called ‘mega prison’ near Chorley
• MA v E Council – Advising upon and settling Summary Grounds of Resistance in this age assessment judicial review
• R(F) v H Council – advised upon and settled the Summary Grounds of Resistance in this judicial review under s19 of the Education Act 1996
• R(U) v H Council – advised upon and settled the Summary Grounds of Resistance in this judicial review under s42 of the Children and Families Act 2014
• R(A) v An Ombudsman – settling the Summary Grounds of Resistance in this judicial review challenge to the ombudsman’s preliminary decision that the dispute was more appropriately dealt with by a court rather than the ombudsman
• R(L) v An Ombudsman – settling the summary Grounds of Resistance in this judicial review challenge to the legality of the ombudsman’s refusal to consider a complaint due to it being more appropriately dealt with by a court and that there were other compelling reasons not to investigate
• R(RN) v An Ombudsman – settling the Summary Grounds of Resistance in this judicial review challenge to the Ombudsman’s decision to refuse to investigate a complaint that was submitted out of time.
• Acting successfully for the Home Office in the leading Country Guidance case on Somalia: OA v SSHD [2022] UKUT 00033 (IAC).
• Representing the successful Respondent in Nottinghamshire County Council v SF & Ors [2020] EWCA Civ 226 considering the meaning of “necessary” under s37 Children and Families Act 2014.
• Seeking permission to appeal to the Court of Appeal in D v Hampshire County Council [2020] EWHC 2916 (Admin).
• Topham v Ministry of Justice – Successfully represented the defendant and secured the strike out of the claimant’s Article 8 Human Rights Act challenge
• R(A) v B Council – Advising the claimant on a potential judicial review challenge to the defendant council’s direct payment scheme.
• R(H) v X CCG – Advising the claimant in relation to a potential judicial review against the CCG’s failure to secure continuing care provision for a child with a life limiting medical condition.
• R(E) v Norfolk County Council (unreported) – Settled the Statement of Facts and Grounds in this judicial review challenge which settled following the filling of summary Grounds of Resistance
• X v G College (unreported): representing the college against a leading education law silk in a judicial review against its decision to exclude a student.
• YMC v Office of Intercollegiate Studies (unreported): representing the claimant in what is thought to be the first judicial review challenge brought against the Office of Intercollegiate Studies.
• EW v S County Council : advising on and settling the response to a judicial review pre action protocol letter concerning alleged breaches of the Chronically Sick and Disabled Persons Act
• E v H County Council : advising the Defendant local authority on an expedited judicial review claim; settled the Detailed Grounds of Resistance; advising on settlement
• MA v B University : advising on the grounds for judicial review arising from a university’s failure to grant extenuating circumstances.
• JP v IAP : advising on the legality of an Independent Admissions Panel decision.
• AT v An Academy : advising on the grounds of challenge to an Academy’s procedure for conducting a managed move which successfully settled at the pre action stage
• Re: DR : advising on the merits of bringing a judicial review claim against a London Borough for maintaining a policy on not placing children below 16 in children’s homes.

Court of Protection

Matthew is a Leading Junior in Court of Protection and is described as “an excellent advocate” (Legal 500, 2022) whose “encyclopaedic knowledge of both English and Welsh social care law is an advantage” (Legal 500, 2021).

He undertakes the entire range of instructions in the Court of Protection in both the health & welfare and property & affairs jurisdictions and represents all parties to proceedings. More detail on each area is set out below.

In 2023, Matthew started 3PB’s Court of Protection and Community Care Podcast: CopComm.

Property and Affairs

Much of Matthew’s Court of Protection practise falls under its property and affairs jurisdiction. Matthew regularly represents the Office of the Public Guardian, local authorities, individuals, the Official Solicitor, professional deputies and trustees. He is familiar with issues such as elder abuse, inheritance tax, capital gains tax, statutory Wills, gifting, powers of attorney, deputyships, personal injury trusts.

Representative examples of Matthew’s work include:

• OPG v SH & Ors – representing the successful applicant in an application for declarations as to P’s capacity to execute lasting powers of attorney. Involved detailed legal arguments around the different relevant information for managing property and affairs/executing an LPA
• ZG v ED – advising the respondent in a contested deputyship application. Issues arising include a property sale and the capital gains implications for P’s estate
• (1)  A (2) G v A professional deputy – Successfully defending a professional deputy in an application to discharge their deputyship. Issues included whether the applicant had brought the application on the correct legal basis
• OPG v RL – Successfully representing the Applicant in proceedings seeking an order to cancel the registration of an LPA due to P lacking capacity at the time it was made
• OPG v SLH & Ors – Representing the OPG in proceedings seeking to cancel the registration of an LPA and secure the granting of a professional deputy to protect P from financial abuse
• OPG v JMG – Representing the OPG in proceedings seeking to cancel the registration of an LPA due to the attorney financially abusing P.
• OPG v G – Representing the OPG in proceedings seeking to cancel a deputyship order due to financial abuse on the part of the deputy
• KSC v S Council – Defending an application which proceeded to a contested final hearing seeking to discharge a deputyship order. Involved the cross examination of an incapatious individual on their wishes and feelings which was described as “skillful” and “sensitive” by the judge.
• Office of the Public Guardian v CE - Advising and representing the defendant attorney in proceedings brought by the OPG to cancel Lasting Powers of Attorney for both property/affairs and health/welfare on the ground that P had capacity at the point of execution
• Office of the Public Guardian v MS - Advising and representing the defendant attorney in proceedings brought by the OPG to cancel registration of a Lasting Power of Attorney for health and welfare on the basis that P had capacity at the point of execution
• G v G - Advising and representing a family member opposed to her siblings application for property and affairs deputyship over their mother due to concerns about financial abuse
• Office of the Public Guardian v LK - Advising and representing the defendant attorney on an application for removal sought by the OPG
• Re: AA - Advising a HNW client in conference and in writing on the options for protecting the assets of an incapacitated family member, including considering the appropriateness of a deputyship order or the settlement of a trust structure
• Re: JS - Advising professional deputies on the proper construction of an indemnity clause within a PPO arising from a £1.7m clinical negligence settlement and on their obligations pursuant to the same
• Re: DS - Advising an attorney on the legalities and procedure surrounding the transfer of property at an undervalue within civil proceedings where the defendant had lost capacity
• GB v SW - Advising and representing the defendant family member contesting a property and affairs deputyship application on the basis of alleged historic financial abuse
• S City Council v KSC - Advising and representing a local authority in a contested application for a deputyship order over P’s property and affairs following his falling victim to online fraud. Involved issues of online romance scamming and international money laundering.
• Re: LCD - Advising a national law firm’s private client department on the risks arising out of the transfer of property from a PI trust and the appropriate method of making the transfer.

Health and Welfare

Matthew regularly represents the Official Solicitor, family members, RPRs and local authorities in the range of health and welfare matters coming before the Court of Protection. His background in public law and education law, means that he can offer consistency of representation across all areas where the protected party is an adolescent. As such, he is regularly sought after by local authorities to advise on cross over cases where social care and education responsibilities are at the fore.

Representative examples of Matthew’s health and welfare work includes:

• TQ v (1) A Health Board (2) A Local Authority – representing the LA in a complex s21A matter where P absconded from multiple care homes and travelled between England and Wales.
• H Council v JB - Advising and representing a local authority in respect of a section 16 challenge concerning P’s capacity to engage in sexual relations and make decisions concerning his education.
• B CCG v HJ & Ors - Advising and representing P, through the Official Solicitor, in a section 21A challenge concerning a Third Party Personal Health Budget, as well as an urgent issue regarding international travel.
• County Council v JAS - Advising and representing a local authority in a section 21A application within which there were issues concerning P’s habitual residence.
• B Council v PM - Advising and representing a local authority in respect of a DoLS challenge where P resides at an independent specialist college and the interplay between the education and DoLS schemes.
• Re: SB - Advising a family member and corresponding with a local authority on their behalf concerning allegations that the local authority was unlawfully preventing them from seeing their adult children.
• Re: MR - Advising and representing P in a dispute over a ward change following the Covid-19 pandemic.
• KH v S County Council - Advising a local authority on the interplay between the different regimes under the Mental Health Act 1983, s21A Mental Capacity Act and s39 Children and Families Act 2014.
• S City Council v JDC & Ors - Advising and representing a family member in this long running s21A and contact challenge.
• CEM - Representing P in a dispute over her end of life arrangements.

Inherent jurisdiction of the High Court/Safeguarding of vulnerable adults and children

Much of Matthew’s work involves safeguarding. Where appropriate, Matthew is happy to represent parties before the Family Division of the High Court in proceedings under the Inherent Jurisdiction. Recent examples include:

• Re: C – Advising a professional deputy as to safeguarding an incapacitated 16 year old from family members refusing to allow him access to court approved therapeutic support.
• E County Council v CM & Ors – Advising and representing the applicant local authority in Tier 3 proceedings concerning international abduction of an incapacious adult.
• Re: DN – representing an independent school in emergency proceedings issued under the Inherent Jurisdiction to authorize a child’s deprivation of liberty in an unregulated placement. Matthew also advised on the concurrent threatened Administrative Court proceedings against the school.
• Re: AA - representing a family member in proceedings issued under the Inherent Jurisdiction concerning International Child Abduction.

Medical treatment

Matthew is developing a medical treatment focus to his practise and is happy to advise parties to medical treatment proceedings on an out of hours/emergency basis. To date, medical treatment matters he has been involved with include:

• NT v An NHS Trust and Ors – representing a respondent in a dispute concerning P’s mental health treatment.
• Re: JC – representing the family members in a dispute concerning whether or not P should receive dental treatment.

Education

Matthew is a trusted and respected adviser to the education sector and those operating within it, having practised in the field of education law since before his call to the Bar. He is recognised in both of the leading legal directories. Having spent a significant time practicing in Wales, Matthew is experienced in advising on the devolved education settlement in Wales.

Adopting a sector based approach, the kind of areas Matthew advises/represents institutions in includes the following:

Judicial Review: Most of Matthew’s instructions in relation to the education sector involve advising, drafting or representation before the High Court in respect of judicial reviews concerning education. He acts for claimants, defendant and interested parties before the High Court.

Governance and organisation: Having co-authored the school reorganisation chapter of the leading education law textbook, Matthew is regularly sought after to assist local authorities and other proposers with drafting documentation or advising on the process for school re-organisation. He is equally happy to advise and represent those wishing to challenge school re-organisation decisions by way of judicial review. As a non executive director of a higher education institution he is happy to advise on all manner of HEI governance issues, including registration with the Office for Students.

Data protection/information law: Benefitting from an established data protection/privacy practice, Matthew is sought after to advise schools, universities and local authorities on their data protection obligations.

SEN: Matthew regularly appear before the Upper Tribunal, First Tier Tribunal and Education Tribunal for Wales in SEN appeals. He also offers strategic advice and support to local authorities and schools in managing disputes that arise.

Equality Act claims: Whilst defending institutions before the First Tier Tribunal makes up the majority of Matthew’s equality practice, he is equally happy to appear before the County Court defending universities or schools in relation to any matter arising under the Equality Act 2010.

Breach of contract/negligence: Having spent his first few years of practice in the litigation department of a specialist education firm he has a solid track record in bringing and defending civil challenges against educational institutions including universities, and independent schools.

Land/planning issues: Matthew is familiar with the English planning law system, having appeared before Planning Inquiries and given planning advice on a variety of issues. With his knowledge of the education sector he is well placed to advise on these issues within the context of school organization (see Matthew’s property profile for more details).

Transport: Matthew has a working knowledge of the English and Welsh law on school transport and regularly advises on the same.

Regulation/reporting: Having previously been on secondment to an education regulator, Matthew is extremely comfortable advising on regulatory issues arising from school inspections, as well as obtaining urgent interim relief to prevent report publication. He also has experience in challenging Ofsted decision making in the Care Standards Tribunal, and in representing teachers before the TRA.

Examples of recent cases Matthew has been involved with within the education sector include:

• AB v Newport City Council [2022] UKUT 190 (AAC) – represented the successful Appellant in this appeal to the Upper Tribunal which clarified the law in relation to appeals from the Special Educational Needs Tribunal for Wales.
• Nottinghamshire County Council v SF & GD [2020] EWCA Civ 226 – represented the successful Respondents in the Court of Appeal in this decision clarifying the correct approach to s37 Children and Families Act 2014
• D v Hampshire County Council [2020] EWHC 2916 (Admin) – represented the Appellant before the High Court seeking leave to appeal to the Court of Appeal
• X v L University – advising and drafting a Defence to a claim for breach of statutory duty under the UK GDPR
• M v C University – drafting and representing the defendant university in an application to strike out a claim for breach of statutory duty under the UK GDPR and misuse of private information
• F v H Council (unreported) – advised upon and settled the Summary Grounds of Resistance in this judicial review under s19 of the Education Act 1996
• U v H Council (unreported) – advised upon and settled the Summary Grounds of Resistance in this judicial review under s42 of the Children and Families Act 2014
• X v G College (unreported): representing the college against a leading education law silk in a judicial review against its decision to exclude a student.
• YMC v Office of Intercollegiate Studies (unreported): representing the claimant in what is thought to be the first judicial review challenge brought against the Office of Intercollegiate Studies.
• H v D School: Successfully representing the school in an educational negligence claim against a leading silk.
• Re: BCC – Advising a proposer on a school re-organisation project to change a school from single sex to co-educational and drafting various documentation for the same.
• Re: CSDN – Advising the appellant nursery in proceedings before the Care Standards Tribunal
• Advising a regulator on the likely enforceability of a historic covenant contained in an Abstract pre dating 1926 Advising on the legal risks associated with a public consultation
• Drafting online Government guidance in relation to registration with a regulator
• Advising an inspection authority on the limits of its powers and when it becomes functus
• Advising on the legality of amending a regulators complaints process
• Advising a regulator on the risks associated with the implementation of a new Bill
• Advising a regulator on whether a novel business idea would require registration with it

Cannabis and Life Science Regulation

Matthew Wyard is one of a handful of barristers who specialises in the niche provision of regulatory advice in the life sciences sector. He has a particular interest in the regulations governing psychoactive medications and medicinal cannabis and has a working knowledge of the relevant international and domestic statutory regimes.

Examples of recent cases Matthew has been involved in within the cannabis and pharmaceutical regulatory field include:

• Re: A Government Department – Advising a large Central Government department on the implementation of a policy on the use of CBPMs on its premises.
• Re: D – Advising a Central Government department on the risks arising from allowing/prohibiting the use of medicinal cannabis in the workplace.
• Re: A – Providing regulatory advice to Middle Eastern and African based joint venturers looking to establish a UK distribution company for the worldwide distribution of cannabis seeds on the lawful importation of cannabis.
• Re: MJH – Providing advice in conference to a Channel Island based investment fund on the regulatory framework concerning, and risks arising from, investing in the UK based medicinal cannabis market, including on proceeds of crime.
• Re: KM – Providing advice on the application of the EU Tobacco Products Directive to UK purchasers.
• Re: L – Advising on liability and quantum arising from a data breach in the life sciences sector.
• Re: V – Advising upon, settling and drafting the settlement agreement in a dispute between the directors of, and consultants for, an international pharmaceutical company as to the apportionment of future liability between the company and consultants upon the consultants’ retirement.

Matthew is the author of a number of articles on cannabis regulation including: “Cannabis Based Medicinal Products” on Practical Law which provides an overview of the law; “Novel foods regulation: Getting your product to the UK market (including cannabis-based food products)” which reviews the law regulating novel food products in the UK; “The UK Market Authorisation for new medicinal products” and an “Update on UK tobacco law in light of Article 7 of the EU Tobacco Productive Directive”, which forbids the sale of any tobacco products with a characterising flavour.

Year of call 2014