| SPOTLIGHT |
The High Court has told Wokingham Borough Council it must re-take a decision on whether to name Swalcliffe Park School in the Education, Health and Care (EHC) plan of XYZ, a 16-year-old boy.
Swalcliffe applied for judicial review of decisions by Wokingham and the First Tier Tribunal (Special Educational Needs And Disability).
In Swalcliffe Park School, R (On the Application Of) v Wokingham Borough Council & Anor [2023] EWHC 1451 (Admin) His Honour Judge Auerbach, sitting as a judge of the High Court, said the school challenged Wokingham’s decision to name it in the EHC plan, a consent order made by the tribunal providing for an amended EHC plan for XYZ also naming the school and the tribunal’s subsequent refusal of the school's application to set aside the consent order.
The tribunal said it wished to remain neutral and not participate in the proceedings unless ordered.
XYZ has special educational needs, arising in particular from autistic spectrum disorder and a developmental language disorder.
Swalcliffe is a residential special school for children and young people who have autistic spectrum disorder.
In August 2020 both XYZ’s mother PQR and Wokingham approached the school, but it did not consider itself suitable for XYZ as his behaviours were “not compatible with our student population".
PQR made several attempts to persuade the school to change its mind and Wokingham asked the school for confirmation of the cost, if XYZ were offered a placement, and the school responded with an annual figure.
XYZ then had a three-day trial of residential attendance after which the school still said it would not offer him a place due to his interactions with other pupils.
In December 2021 Wokingham told the school it was now PQR's sole preferred school, and the council had decided to name it as XYZ’s placement.
Wokingham said the information provided by the school was not sufficient to evidence any of the legal grounds to refuse to name it in the plan.
Swalcliffe in January 2022 told Wokingham and PQR's solicitors that the decision to name it in the EHC plan was neither rational nor founded on evidence, and that if Wokingham did name it, it would challenge the decision and have the EHC plan declared invalid.
In February 2022 the tribunal wrote to the school declining to set aside the consent order.
HHJ Auerbach noted Swalcliffe had not admitted XYZ and Wokingham had made other provision for his education including online tuition. PQR was concerned this did not meet his needs.
Swalcliffe’s first ground of challenge was that Wokingham: (a) failed to provide requisite information for the purposes of consultation; (b) took the decision without conscientiously considering the school's response to the consultation; (c) took a decision which was irrational because it lacked an evidential basis; and/or (d) failed to consider the school's safeguarding duties.
Its second ground was that Wokingham failed to inform the tribunal of the school's opposition to the placement, and the third challenged the tribunal's refusal to set aside the consent order.
HHJ Auerbach said in his judgment that the school’s case succeeded only on the second part of ground 1.
He said: “I come back to the point that consultation requires dialogue and engagement, and the evidence before me does not demonstrate that there was a good reason why, following [a letter sent on] 26 November, there could not have been more dialogue and it instead had to proceed directly to a decision.
“I conclude that the evidence has not satisfied me that the requisite standard of conscientious consideration was met before the decision was taken.”
He said Wokingham’s actions did not meet the hurdle of Wednesbury unreasonableness and disagreed with the idea that the local authority did not consider the safeguarding duty, and/or had no evidential basis to disagree with the school about it.
The judge said there was no evidence that Wokingham withheld a letter form the tribunal or that the tribunal should have acted differently over the consent order.
HHJ Auerbach concluded: “While the tribunal was not wrong, as such, to grant the consent order, nor to refuse [one] application, the local authority's decision to seek the order, in the circumstances and at the point when it did, was itself wrong; and the order was a necessary part of the mechanism of implementation of that decision.”
He said this meant the parties must now complete the consultation process, “which plainly is more urgent than ever”, the decision to name the school must be taken afresh and the tribunal proceedings revived.
Mark Smulian
