| SPOTLIGHT |
A Deputy Judge of the High Court has ruled that the London Borough of Croydon breached two profoundly disabled children’s rights to education between December 2020 and April 2022, and has ordered the council to pay £10,000 for each child by way of just satisfaction.
In ZB & Anor , R (On the Application Of) v NHS South West London ICB [2023], Jason Coppel KC declared that Croydon had breached the claimants' rights to an effective education. However he dismissed the remainder of the claims and refused to make a mandatory order requiring that the children be maintained at their current placements pending the outcome of other proceedings.
Outlining the background to the case, the judge said that the claim was one of several sets of proceedings brought by the claimants ("ZB" and "DB"), who are “profoundly disabled” children and/or their mother ("Ms Bell") seeking to secure “adequate and lawful treatment by way of housing, education and social care provision”.
Ms Bell is a single parent with three children, a boy, (“DB”) currently aged 14, a girl (“ZB”) currently aged 12 and a boy currently aged 2.
The family lived in housing provided by the London Borough of Lambeth, located in Croydon (the area of the Defendant Council), which the claimant had described as “unsuitable” for her children’s needs due to inaccessibility and issues with damp and mould.
The court heard that because of the difficulties in moving the children, they had been confined to the property.
The children were unable to attend school. According to the claimants’ grounds in the Croydon proceedings, the daughter had not attended school since 12 November 2018 and the older son had not attended school since 11 March 2020.
In another of the claims, whereby Ms Bell complained of the inadequacy of housing, Hill J found that “the two older children's physical health and development is being severely impacted by their accommodation. Their already vulnerable respiratory health is being exacerbated by mould, rising damp, pest infestation and poor environmental air quality at the property. The lack of space is impacting on their mobility and developmental programmes. The Claimant and her son are at risk of significant physical injury by her carrying him up and down the stairs.”
Following the claim, Hill J made a mandatory order, directing that Lambeth secure suitable accommodation for the claimant under section 193(2) of the 1996 Act by no later than 12 weeks from the date of the order.
Jason Coppel KC said that Lambeth responded to Hill J's Order by offering Ms Bell alternative accommodation, also in Croydon. However, she had “objected to its suitability and further proceedings on that subject are pending before the County Court”, he revealed.
When the claimants moved to the Croydon area in December 2020, Croydon was informed by Lambeth that the claimants had moved into its area and accepted responsibility for them under s.24 of the Children and Families 2014 Act. Croydon received from Lambeth their then current Education, Health and Care (EHC) plans.
The present claim was issued on 30 June 2022 seeking the following relief by way of final orders:
The judge said that a “principal objective” of the present claim was to secure the placement of DB and ZB at the CTS, a non-maintained special school in Tadworth, Surrey which supports children and young people aged 2-19 who have a wide range of special needs.
“Croydon has refused to agree to DB and ZB being educated there, essentially because of the cost of that education, and has maintained that they should attend Linden Lodge School ("LLS") in Wandsworth, a community special school for children with visual and sensory impairments, as day pupils”, Judge Coppel said.
Shortly after proceedings were issued on 1 July 2022, Croydon agreed to accommodate DB, pursuant to s. 20 of the Children Act 1989, at the Children's Trust ("TCT") and to refer him to be assessed for a residential placement there (which was conditional upon Ms Bell's agreement), the judge noted.
TCT operates the CTS, and is located on an “adjacent site to the school”. It offers care to children with special needs, including by way of residential placements. It can make limited educational provision for children but is not itself a school.
The judge said that Croydon's position was that TCT could be a suitable place for DB to live in the short term, but that he should be educated at LLS and so transported to and from LLS each day. He added: “In the longer term, Croydon envisages that DB should return to live with Ms Bell, in suitable accommodation provided by Lambeth”.
In his order dated 28 July 2022 granting permission for judicial review, Bennathan J granted interim relief requiring Croydon also to refer ZB for a short-term placement at TCT, for 12 weeks, or any lesser period agreed by Ms Bell. In the event, both DB and ZB moved into TCT on 2 November 2022.
The judge noted that Croydon has compiled Education Health and Care ("EHC") plans for both children, in which LLS is named as their place of education and provision is set out for their ongoing care, on the footing that they are living at home with Ms Bell.
The mother strongly objects to the EHC Plans and sought orders from the High Court which “would have required changes to be made to their EHC plans, notably to substitute CTS as their place of education”, Judge Coppel said.
The claimants accepted shortly prior to the current hearing that the First Tier Tribunal (FTT) and not the Administrative Court was the “appropriate forum” for the resolution of disputes regarding the contents of the children's EHC Plans, the judge said.
He went on to note that the declarations which were sought concerned “historic alleged failings” of Croydon which have “either been superseded, as a result of the placement of the children at TCT, or will be superseded by fresh decisions and fresh provision following the ruling of the FTT”.
The judge added: “The Claimants do seek a compensatory remedy in the present case, and a ‘backward-looking’ analysis will be necessary when I come to consider that claim”.
He said that what remained for determination by the Court were the following claims:
Considering the Convention rights claims, the judge looked at Article 2P1, which provides: “No person shall be denied the right to education."
He noted that Croydon was informed by Lambeth on 2 December 2020 that the claimants had moved into its area, and immediately accepted responsibility for them under s. 24 of the 2014 Act.
“Croydon received from Lambeth their then current EHC Plans, which stated that they were enrolled at LLS. Croydon's assigned social worker was aware that they had not been to school for some time but proceeded on the basis that they would attend LLS once transport was arranged (which was Croydon's responsibility)”, said the judge.
After considering the timeline of events, Jason Coppel KC concluded: “More than 16 months after they moved into Croydon's area, the children were still unable to attend LLS for lack of adequate transport and accompanying escort arrangements. Croydon was still disputing its responsibility for providing an escort for ZB (which was only accepted after these proceedings were issued) and no solution at all had been proposed for DB to get to and from LLS. Croydon had refused to make any educational provision for the children because they were enrolled at LLS, whilst not taking the steps necessary to ensure that they could actually attend LLS.
“I do not hold Croydon solely responsible for this state of affairs. Lambeth had placed the family in wholly unsuitable accommodation, which rendered it significantly more challenging for the children to attend school but, contrary to Croydon's submissions, that fact does not absolve it of its own duties under A2P1.
“The delay in applying for transport to and from LLS was partly down to Ms Bell. Ultimately, however, once it became aware that the children were not attending school, Croydon had a primary responsibility to ensure that they did so, or at the very least that they were able to do so.”
Judge Coppel continued: “Against all of this, Croydon had very little to say in its defence. Its principal argument was that it ‘has been doing its best for DB and ZB in trying circumstances, with a view to them remaining with the family, having the assistance of professional care and having the education they need’. I do not accept that Croydon's efforts to ensure that the children could attend school represented ‘its best’; if they did, then its best was not good enough to satisfy the requirements of A2P1.”
The judge concluded that Croydon's period of breach of A2P1 commenced on 2 December 2020 when it assumed responsibility for the children. He said: “I place the end of Croydon's period of breach of A2P1 at 19 April 2022, which is the date upon which Croydon formally offered to refer the children to its home tuition service, which represented at least a realistic proposal for their education, albeit a temporary and far from satisfactory one.”
The judge dismissed the claim under Article 8 ECHR, “the right to respect for private and family life” on the grounds that, as the authority which provided the family with unsuitable housing, “primary responsibility might lie with Lambeth”. However, he said the claimants had chosen not to claim against Lambeth in the proceedings “nor to provide the Court with any evidence or argument directed to establishing how it could be said that Croydon rather than Lambeth bore primary responsibility”.
The claimants submitted that a payment of damages was necessary to afford them “just satisfaction” for breach of their A2P1 rights.
The Deputy High Court judge concluded that the appropriate figure for compensation for each child was £10,000. He said: “This represents £600 per month for the 16.5 month period between 2 December 2020 and 19 April 2022. It places the awards at the upper end of the Ombudsman's scale, in light of the absence of any significant educational provision during the relevant period and the likely severity of the impact on the children given the very limited social contact which they otherwise had.”
Finally, considering the call for a mandatory order prohibiting Croydon from terminating their placements at TCT before the conclusion of the FTT proceedings, the judge refused to make such order.
He said: “There are undoubtedly powerful reasons why the children should not be moved until the FTT has decided whether they should be educated at CTS or LLS or elsewhere. In recent weeks they have had excellent care and some education, which had been lacking for some considerable time before they moved to TCT.
“However, Croydon has not expressed an intention to move the children prior to the FTT's decision which could be evaluated against current circumstances. And I am not in a position to say that it would necessarily be unlawful for Croydon to decide in the future that the children should be accommodated elsewhere, particularly as one cannot be at all certain when the FTT proceedings will conclude (and noting the possibility of an appeal against its ruling).”
The judge therefore refused to make a mandatory order requiring that the children be maintained at their current placements pending the outcome of the FTT proceedings. “Any decision of Croydon to that effect will have to be judged in the light of circumstances at the time that it is made. Croydon will, I am sure, understand that it will need to have a powerful justification for causing further disruption to the children's lives during this interim period.”
Concluding on the case, Jason Coppel KC declared that Croydon breached the claimants' A2P1 rights between 2 December 2020 and 19 April 2022, and dismissed the remainder of the claims. He ordered Croydon Council to award “just satisfaction” of £10,000 for each child.
Lottie Winson
