Successful Judicial Review of Local Authority’s failure to deliver provision in an Education, Health and Care Plan

One intention of the SEN reforms in the Children and Families Act 2014 was to bring an end to the need for parents to ‘battle’ with Local Authorities for support for children with SEN. Last week, OFSTED’s Annual Report highlighted that, four years after the reforms came in, this remains an issue. OFSTED’s Chief Inspector said, in presenting the Report, that:

“Something is deeply wrong when parents repeatedly tell inspectors that they have to fight to get the help and support that their child needs.”[1]

Part of the fight that parents often have to have is to appeal to the Special Educational Needs and Disability Tribunal regarding decisions made by Local Authorities, to have an independent determination of what their child needs. Even that, however, is not always the end of matters. Although the Tribunal decides what special educational provision a child needs, the Tribunal can only order a Local Authority to amend the child’s EHC Plan to set out the necessary provision. The Tribunal cannot force the Local Authority to actually make the provision after that, and while they are legally obliged to do so that does not always mean that they do.

The High Court’s decision on 11 December 2018 in R (on the application of S) v London Borough of Camden[2] demonstrates the lengths to which some Local Authorities will still go to avoid delivering provision to children with SEN.

The parents of S, a 7 year-old child with a diagnosis of Autism, appealed to the Tribunal regarding his EHC Plan. They argued that he required ABA (Applied Behavioural Analysis), a form of specialist provision for children with autism. The Local Authority argued that ABA was not necessary for S, and that his needs would be met by an ‘eclectic’ mix of approaches. The Tribunal agreed with the parents and decided, in March 2018, that ABA was necessary for S, and so ordered the Local Authority to amend S’s EHC Plan to set out ABA provision.

At the beginning of April 2018 the LA did amend the EHC Plan to specify ABA provision. However, they did not then arrange that provision, leaving his parents to either pay for it (as they did) or leave S with no education at all. Instead, the LA tried to avoid paying for ABA by amending S’s EHC Plan again, at the beginning of June 2018 – less than 2 months later – to take out the ABA provision that the Tribunal had ordered them to add. The LA did not tell S’s parents they had made these changes, and only mentioned the amended EHC Plan after Court proceedings had been started to seek to force the LA to deliver ABA for S. The LA then argued that because of the new Plan, there was nothing for the Court to decide, and that the parents could appeal again to the Tribunal if they disagreed with the decision to remove the ABA provision.

The Court disagreed with the Local Authority’s arguments, and found that they had been in breach of their legal duty to secure the provision in S’s EHC Plan since April 2018. The Court concluded that the LA could not rely on the new Plan it claimed to have made in June, as they had failed to consult with the parents about any changes, and so had the LA had no power to issue another Plan.

The Court also found that there was “much to suggest that Camden was determined to use the amendment process to thwart the [Tribunal] decision” and that what had happened in the case was “contrary to the whole tenor and wording of the statutory provisions and the Regulations and Code of Practice made under them.”

The Court quashed the EHC Plan issued in June, and ordered the Local Authority to begin arranging the ABA provision that S required.

While the Court reached the right conclusion S has still had to wait a further 8 months after the Tribunal’s decision to receive funding for the provision that the Tribunal agreed he needs. But there is still no guarantee that this is the end of S’s parents’ battle – the Local Authority has suggested that it will, again, seek to amend S’s EHC Plan to remove the ABA provision, so that further Court or Tribunal proceedings may be required.

Chris Barnett, Senior Associate Solicitor, acted for S in the case.

 

[1] https://www.gov.uk/government/speeches/amanda-spielman-launches-ofsteds-annual-report-201718

[2] [2018] EWHC 3354 (Admin)

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