| SPOTLIGHT |
The High Court has rejected a claim brought by a transgender young person that the defendant council failed to comply with the Public Sector Equality Duty regarding his needs as a transgender person with an Education, Health and Care Plan (EHCP).
In AI, R (on the application of) v London Borough of Wandsworth [2023] EWHC 2088, Mrs Justice Foster DBE said the claimant, AI, is currently aged 22 with complex Special Educational Needs and Disabilities (“SEND”). He has since 2016 been a patient at Tavistock’s Gender Identity Service.
At about 13 or 14 AI went into the care system. The judge noted that he has a “long history” of disrupted schooling, attending eight separate primary schools and numerous other schools. He has been known to CAMHS since the age of 12.
She added: “The claimant argues the defendant [the London Borough of Wandsworth] has failed to comply with the Public Sector Equality Duty (“PSED”) arising under section 149 of the Equality Act 2010 as regards his needs as a transgender person with an Education, Health and Care Plan (“EHCP”) and, generally, to transgender young people with special educational needs and disabilities.”
AI’s special educational needs, his disabilities and his gender identity are known to the council, who maintains an EHCP for him, having done so since July 2018, and before that maintained a statement of Special Educational Needs between 2013 and 2016.
Mrs Justice Foster said the claimant argued that the council has provided “no evidence of any compliance with their PSED obligations since 2020 and is in breach of them”.
AI argued that in his case, special educational provision was not secured for extended periods of time, but that if the council had undertaken the enquiries required by the PSED, it “might have better understood the reasons why the Claimant’s placements were breaking down and taken appropriate action”.
The judge noted it was the claimant’s case that since he transitioned, his educational placements in his EHCP hadrepeatedly broken down and his misgendering by others (where the inappropriate pronoun is used for a person) “has contributed to this”. That has caused serious disruption in accessing the special educational provision required in his EHCP.
AI pointed to the council’s evidence of matters it had considered, and submitted it wass “inadequate to demonstrate discharge of their statutory duty”, said the judge.
Counsel for Al referred in particular to:
Wandsworth defended the case in two ways. Outlining the council’s arguments, the judge said: “Section 42 of the Children and Families Act (CAFA) imposes an absolute duty upon the defendant which is generated by the particular needs and/or disabilities of the child or young person in question. The extent of the duty does not vary according to any protected characteristic; the section 42 duty is not concerned with the assessment of educational need but with the securing of the provision for that need as set out in the EHCP.
“In short, necessarily say Wandsworth, the section 149 considerations are taken into account in respect of the detailed and personal provision represented by an EHCP. The duty to secure the stated provision is absolute; the discharge of the duty under section 42 in connection with any individual EHCP holder (that is, its securing of the educational provision set out in the individual’s EHCP) does not require separate, specific section 149 consideration - that consideration has already taken place in providing for the individualised needs of the person in question.”
She added: “Their case is that none of the evidence on which the claimant relies discloses any unlawfulness in any event.”
Secondly, the council did not accept the factual premiss of the claimant’s case that misgendering was a cause or material cause of the educational and other failures he relied upon.
“They argue that neither the claimant nor others at the time gave misgendering as a reason for breakdown of services provided under the EHCP and that the evidence does not support the Claimant. It shows, rather, that the defendant has made strenuous efforts to provide the claimant with suitable educational placements but these placements have been significantly disrupted by external factors including by his pattern of non-attendance”, the judge added.
Counsel for AI submitted that there was no evidence that due regard had been paid. However, the judge concluded that this was not the case.
She said: “In my judgement it is an unavoidable conclusion that in the present case, where the underlying statutory mechanism is designed to discharge a local authority’s education, health and social duties to an individual based upon that individual’s own particular personal needs and characteristics, including disabilities and diagnoses that render him the subject of particular protection and concern, and it has provided for them under that section it is impossible to argue that no due regard has been had under section 149 PSED in respect of that individual.”
The judge found that there was recognition in performance of the section 42 duty that there was an issue of gender reassignment in respect of this claimant, and it was recorded in the EHCP.
She said: “It is clear from the materials and Wandsworth’s approach to their section 42 duty that the defendant paid careful attention to AI’s requirements and responded to his experiences.”
Turning to the submission that misgendering was a material cause of AI’s placement breakdown, the judge said: “Although it is clear from the manner in which AI makes his case, that he retains a view that failures regarding his gender identity and the inability of the defendant properly to deal with them have caused, to some extent, the breakdown of placements he has enjoyed, he accepts (in his statement and in his claim in terms) that the gender dysphoria issue is not the sole cause of breakdown.”
Al complained of misgendering in two placements. The judge found that “the contemporaneous evidence does not begin to support a case that Wandsworth were responsible for any failures around his gender diagnosis that caused or materially contributed to the failure of his placements”.
The reasoning for her view was outlined as follows:
Counsel for AI submitted that that the evidence received by Wandsworth required them to take further steps even where there was no evidence of particular instances of transgender issues or other misgendering.
Considering this submission, the judge concluded that in the context of section 42 and Wandsworth’s approach to its duties, it was not Wednesbury unreasonable not to make further inquiry.
She said: “In the present case, appropriate regard was had, given the circumstances and the evidence before Wandsworth: it is clear that the borough had in mind clearly its obligations - it could in my view be confident, given the engagement demonstrated in their handling of AI’s case, that the cohort of persons with EHCPs would be protected: when matters were brought to Wandsworth’s attention, they acted.
“Their decision not to issue as official general policy (not a decision challenged here) a document such as Brighton’s Toolkit cannot be faulted. It did not, either, put them on notice of issues of which they were otherwise ignorant, nor was it Wednesbury unreasonable not to take matters further themselves.”
Mrs Justice Foster further rejected the submission that an anti-bullying policy and the EINA awareness, the Strategy, and the EHCP provision were “insufficient to demonstrate an awareness and proper consideration of the issues.”
Finally, counsel on behalf of AI argued that following the council’s identification of a data gap with respect to the data on protected characteristics of children and young people with SEN provision, the absence of subsequent evidence of review or active monitoring demonstrated “inadequate engagement” and fell short of what was required under the local authority’s duties.
It was submitted that there was a systemic and/or operational failure to protect children and young people with EHCPs from gender reassignment discrimination, and a failure to exercise a Tameside duty of inquiry in order for Wandsworth to equip itself with relevant information so as to discharge the PSED duty.
Considering the submission that the duty in Tameside, which includes monitoring was not fulfilled, the judge concluded “that is not so in circumstances where there is no suggestion that Wandsworth had in fact overlooked anything, or, given the procedures in place, were likely to in respect of this cohort.”
Concluding the case, Mrs Justice Foster said: “In all these circumstances and for the further reasons given above, the Claimant’s claim must fail.”
Lottie Winson
