| SPOTLIGHT |
The High Court has reaffirmed that local authorities are under an ‘absolute duty’ to secure special educational provision and granted a mandatory order. Ollie Persey explains why.
In R(L, by his litigation friend and mother, LC) v Hampshire County Council [2024] EWHC 1928 (Admin), the High Court rejected the Defendant local authority’s argument that a declaration of breach of its statutory duty to secure special educational provision (‘SEP’) in a disabled child’s Education, Health and Care Plan (‘EHCP’) would be sufficient, and issued a mandatory order requiring that all of the Claimant’s SEP be secured within five weeks.
Background
The Claimant (by his mother and litigation friend) challenged the Defendant’s failure to secure the SEP contained in section F of his EHCP, in breach of the absolute statutory duty imposed by s. 42 of the Children and Families Act 2014 (‘CFA’). The Defendant accepted that it was in breach of s. 42 CFA, and did not seek to defend the making of a declaration. However, it resisted the making of a mandatory order that would compel it to comply with its statutory duty or risk of being found in contempt of Court.
The Claimant was a disabled 11-year-old child. He had an EHCP that had been maintained by the Defendant since 23 April 2020. His current EHCP was issued on 11 September 2023, following an order from the First-tier Tribunal (‘FTT’) issued on 7 August 2023. This provided for an Educational Otherwise Than In School (‘EOTIS’) package of a “carefully designed curriculum” coordinated by an educational psychologist (‘EP’).
At no point between the FTT’s decision in August 2023 and the final hearing in the High Court in July 2024 had all of the SEP specified in section F of the Claimant’s EHCP been secured. There had been substantial delay by the Defendant in securing an EP, despite the Claimant’s litigation friend proposing options for the delivery of the SEP to the Defendant.
At the time of the hearing, there was no concrete option for Learning Support Assistant (‘LSA’) support, after the previous provider had terminated its services in May 2024. The Defendant had failed to secure parts of the SEP that would be provided for by a personal budget for the entirety of the near year-long period.
The Court’s decision
The focus of the legal arguments in this case was whether the Court should grant a mandatory order, applying the criteria set out by the Supreme Court in the recent case of R (Imam) v Croydon London Borough Council [2023] UKSC 45; [2023] 3 W.L.R. 1178 (‘Imam’). At paras 66-70, the Supreme Court set out five factors that were relevant to the application of the Court’s discretion in that case:
(i) The need for contingency planning.
(ii) Whether the authority had been on “notice in the past of a problem in relation to the non-performance of its duty but failed to take the opportunity to react to that in good time.”
(iii) The impact on the individual to whom the duty is owed.
(iv) Whether the authority had been taking steps to remedy the situation.
(v) The need not to cause unfairness to others by prioritising the Claimant.
In the present case, the Court reaffirmed that post-Imam “the starting point” is that s.42 CFA imposes an absolute and non-delegable duty on the Defendant to provide the Claimant’s EHCP. This is not a “best endeavours obligation” although the High Court noted that “the Defendant’s submissions appear to suggest that this is how it regards it.”
The Court held that the “Defendant has been on notice of its failure to comply for a significant period and this Claim has been ongoing for many months. The Defendant has therefore had the opportunity to put contingency plans in place if necessary, and to move proactively to resolve issues including (for example) exploring other ways to obtain EP support (perhaps via the private market) and to move much faster than it has in order to find another provider to replace [the LSA provider].”
It was accepted by both parties and the Court that the impact on the Claimant was severe.
The Defendant had not evidenced that it was impossible to comply with its duties to a lack of financial resources, and the Court criticised the Defendant for not putting “contingency plans in place if necessary and to move proactively to resolve issues including (for example) exploring other ways to obtain EP support (perhaps via the private market) and to move much faster than it has in order to find another provider.”
The Court further held the Defendant is “unable to provide much more than a hope that all outstanding matters will shortly be resolved. Given the history, the Claimant’s litigation friend understandably has no confidence in this and, regrettably, I do not consider that it is an assurance upon which the Court can safely rely either.”
The Court further rejected the Defendant’s submission that “a mandatory order would serve no purpose or be counter productive, as submitted by the Defendant” and gave short shrift to the suggestion that a mandatory order “may prevent the Defendant from being able to review the EHCP to determine whether it is workable and to amend it if necessary.”
After handing down her judgment, the Judge praised the diligent work of the Claimant’s solicitor and litigation friend, over an extended period, in holding the Defendant to account.
Analysis
This is a significant judgment that makes it clear that Imam is not a basis for watering down the “absolute duty” in s.42 CFA. S.42 is not converted into a “best endeavours” duty by applying the criteria in Imam.
The judgment reaffirmed that speed must be of the essence “given the critical impact of lack of educational provision on a child’s wellbeing and future”. Local authorities therefore must “move proactively”. Importantly, the Court expected the local authority to have put in place contingency plans, so that any issues with the availability of SEP delivered by third parties (such as a shortage of EPs), would not be a basis for a failing to comply with the absolute duty to secure SEP.
Ollie Persey of the Garden Court Education Law Team acted for the successful Claimant, instructed by Adam Mercer and Christopher McFarland of Sinclairslaw.
