High Court judge finds council committed “serious and substantial” breaches of duties owed to teenager with complex needs

Surrey County Council failed to provide a vulnerable teenager with education and accommodation, re-assess her needs and maintain her care plan, a High Court judge has ruled.

In LB (A Child), R (On the Application Of) v Surrey County Council [2022] EWHC 772 (Admin) (01 April 2022) Neil Cameron QC, sitting as a Deputy High Court Judge, made a series of orders after finding "serious and substantial breaches of duties" by the local authority.

The claimant, referred to as 'LB', is a 15-year-old girl with complex health and educational needs. Her mother decided to pull her out of school and care for her at home after an incident at school in which LB caused herself significant injuries.

The local authority agreed to finding her another school placement and accommodation but, following a series of failed arrangements, the mother decided to pursue a case against the council.

She advanced the following four grounds of challenge:

1. Failure to provide suitable interim education pursuant to the duty imposed under section 19 of the Education Act 1996;
2. Breach of sections 40 and 42 of the Children and Families Act 2014 in relation to the Education, Health and Care (EHC) plan;
3. Failure to comply with the duties imposed by section 20 of the Children Act 1989;
4. Failure to carry out assessments under section 17 and 17ZD of the Children Act 1989.

On ground 1, the claimant said that section 19 of the 1996 Act imposes a mandatory duty and 'dictates' that suitable education be provided. However, they argued that no education was provided for a period of around four months until education was put in place and then stopped again a month later.

In response, the council submitted that the mandatory duty is not to provide education but to make arrangements for the provision of suitable education, which it said it made.

The judge found that the duty to make arrangements for the provision of suitable education "is not a duty to attempt to make arrangements".

He added: "As was made plain by Richards LJ in [R (G) v. Westminster City Council [2004] EWCA Civ 45], it is a duty to arrange for the provision of suitable education. It is a duty to ensure that there is available for each child an efficient educational facility that is suitable for the child's age, ability and aptitude and any special educational needs that the child may have (as defined in section 19(6) of the 1996 Act). The question to be asked is whether educational provision is available, is possible, and is accessible to the child."

The judge said that the council was under a duty to make arrangements for the provision of suitable education for LB. But the judge found that the council failed in its duty after she was left without education for more than a month in September and October 2021 following the end of a placement.

Ground two, which claimed the local authority was in breach of the duties to review the EHC plan and the duty to secure the special educational provision for LB as specified in the EHC plan, was conceded without argument by the council.  

The local authority also conceded ground three after it agreed that the duty imposed by section 20 of the 1989 Act applied.

Ground four had two branches of argument - the claimant contended that there was a breach of:

1. The duty to assess LB's needs pursuant to section 17 of the 1989 Act.
2. The duty to assess whether the mother (‘LE’), as a parent carer, has needs for support under section 17ZD of the 1989 Act.

In response, the council submitted that: 

• The claimant's needs were assessed in December 2020. That assessment remained extant.
• When LB returned to live with her mother, the duty imposed by section 17ZD(1) of the 1989 Act to undertake a parent carer's needs assessment arose. The obligation imposed upon a local authority is to undertake such an assessment within a reasonable time and that an assessment is in progress.

Considering this, the judge said there was a material change of circumstances triggering the need to review LB's care plans. "In breach of the duty imposed by section 17 of the 1989 Act, and regulation 6(1) of the 2010 Regulations, the Defendant failed to keep the care plans under review, and failed to consider whether to review the plan when a material change of circumstances occurred," he found.

Turning to the second part of the claim, he stated that the council was aware that LB was to move back to live with her mother as a temporary measure, and that it had been put on notice of the section 17ZD duty.

He added: "In my judgment, in the particular circumstances of the case, given LB's complex needs, and the particular strain that caring for LB placed on LE, by waiting until 18 January 2022 (some three months after LB returned to LE's home) the Defendant failed to institute, let alone undertake, an assessment under section 17ZD within a reasonable period."

As part of the claim, the claimant asked for interim relief to be provided. However, the council submitted that relief should be refused, arguing that there was no residential accommodation or educational setting available.

In addition, it submitted that if there had been a breach, it arose as a result of the "impossibility of compliance with the various duties and it is highly unlikely that any relief would result in a substantially different outcome".

The council also posited that judicial review is a discretionary remedy, and the discretion extends to refusing relief altogether. Furthermore, it said that any relief granted would serve "no practical effect".

Considering the claim, Judge Cameron said: "In my judgment, and for the reasons I have given when considering each ground, there have been serious and substantial breaches of duties imposed upon the Defendant by statute. Those duties relate to the provision of accommodation, education and care to a young and vulnerable person."

He dismissed the argument that the relief sought would serve no practical purpose. "It is the Defendant's duty to provide […] education, care and accommodation and an order of the court is necessary to ensure that the Defendant complies with the duties imposed upon them by Parliament," the judge noted. As such, he did not exercise his discretion to refuse relief.

He noted that this was not a case where it was likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. "If the Defendant had acted in accordance with the duties imposed upon them, the Claimant would have been provided with education, and with appropriate support and accommodation," the judge said.

The judge continued: "I am mindful of Sedley LJ's statement at paragraph 17 in [R (on the application of N) v. North Tyneside Borough Council [2010] EWCA Civ 135] that 'In a margin of intractable cases there may be reasons why a court would not make a mandatory order, or more probably would briefly defer or qualify its operation'.

"In my judgment, given my findings that the Defendant has failed to carry out the duties imposed upon them by statute, it is appropriate to make the declarations sought. In view of the difficulties faced by the Defendant in securing educational provision and accommodation for LB it is appropriate to make orders that the Defendant carry out their duties, but to allow them time to do so. The court will not order a party to do the impossible, however a court will order a local authority to carry out the duties imposed upon them by statute."

The judge made nine orders including:

• An order that Surrey make arrangements for the claimant to be provided with education in school or otherwise than in school pursuant to their obligations under section 19 of the Education Act 1996, and that they make such arrangements as soon as possible and in any event within 30 days of the date of this order.
• An order that the defendant council conduct a review of the claimant's EHC plan, and that such a review be carried out as soon as possible, and in any event within 30 days of the date of this order.
• An order that the defendant provide the claimant with suitable accommodation pursuant to section 20 of the Children Act 1989 as soon as possible and in any event within 30 days.
• An order that the defendant conduct a re-assessment of the claimant's needs under section 17 of the Children Act 1989 and of the claimant's mother's needs as a carer under section 17ZD of the Children Act 1989, and that such assessment be carried out as soon as possible and in any event within 30 days of the date of this order.
• An order that the defendant shall review and prepare an up to-date care plan for the claimant as soon as possible, and in any event within 30 days of the date of this order.

Adam Carey