| SPOTLIGHT |
The High Court has found that Hertfordshire County Council acted unlawfully in failing to complete a finalised Education, Health and Care (EHC) plan within the statutory period.
However, David Lock KC, sitting as a Deputy Judge of the High Court, adjourned the remainder of the judicial review claim which raised “wider systemic elements” about the way the local authority has acted.
In W, R (On the Application Of) v Hertfordshire County Council [2023], the claimant challenged the failure of the local authority to discharge its duties to children who may have special educational needs lawfully under the Children and Families Act 2014.
The claimant also made a claim for damages to compensate him for costs he has incurred in providing services to his daughter, (W), which, he submitted, were only necessary because Hertfordshire failed to provide special educational provision for his daughter.
Judge Lock noted that under section 36(1) of the 2014 Act, a parent who believes their child may have special educational needs is entitled to ask the local authority to carry out an assessment of their child.
The claimant requested an assessment for his daughter, W, on 30 December 2022. The council replied by a letter dated 8 February 2023 which stated that it felt there was a “more suitable pathway to support the needs of W”, in place of a needs assessment.
One of the reasons provided was: “The local authority note that the level of behaviour is not at the intensity and frequency expected to see when applying for an EHC needs assessment”.
Describing Hertfordshire’s letter, the judge said: “It looks as if the local authority have a standard letter rejecting such an application and the person completing the letter is supposed to fill in the relevant details.
“Although the local authority list a number of documents that are supposed to have been considered as part of this decision-making process, the letter does not directly address the statutory test as to whether W ‘may’ have special educational needs. […] The fact that some of her needs may be met in the ways suggested in the letter does not necessarily mean that she does not have special educational needs.”
The claimant first applied for a review of Hertfordshire's decision not to do an assessment, pointing out that there was a history of ADHD in the claimant's family. The council refused to review the decision. There were no background papers disclosed which explained that decision, according to Judge Lock.
The claimant subsequently exercised his right to appeal to the First Tier Tribunal (FTT) in respect of the council’s decision not to undertake an assessment. On 5 April 2023, prior to the hearing of the tribunal case, the local authority changed its position and agreed to conduct an assessment of W's needs.
There were no disclosed documents which show why Hertfordshire changed its mind about whether W's needs met the statutory threshold, Judge Lock said.
However, he noted: “This local authority conceded 79 out of 91 appeals in 2021/22. That suggests that, in the case of parents who sought to exercise their right of appeal to the FTT, the local authority accepted that it had made an erroneous decision in 86% of cases. Further, for those cases where the local authority failed to concede and the case went to the FTT, the FTT ruled that an assessment was required in all but one case.”
The judge said he did not know how many requests by parents for assessments were sought by parents and granted without the need for the parents to exercise their right to appeal to the FTT. Equally, he did not know how many parents applied for an assessment and failed to appeal a negative response from the local authority.
"Nonetheless, the above figures strongly suggest that there are serious questions about the way in which the local authority carries out its initial decision-making functions given that something approaching 99% of appeals in a recent year were either conceded in advance of a hearing or lost at a hearing. That outcome strongly suggests something has gone seriously awry with the local authority's initial decision-making function," he said.
"To be fair to the local authority, it only conceded 43 out of 83 in the current year, but that is still indicative that, when challenged, it accepted that more than half of its initial decisions could not be supported. Further, for this current year, the local authority has failed in 16 out of 17 cases which have gone to the Tribunal."
The primary duty on a local authority is to complete a finalised EHC plan "as soon as possible". However, an outer limit is set for the period within which it has to be completed, said the judge.
In this case, Judge Lock found that Hertfordshire failed to complete the assessment for the claimant's daughter by 12 May 2023. “Indeed, it failed to complete it within 20 weeks of agreeing to do so, as it appeared to be working on the mistaken basis that the period of 20 weeks restarted from 5 April 2023 [when it changed its position and agreed to carry out an assessment of W's needs]”, said the judge.
Hertfordshire relied on the fact that the number of requests for EHC assessments had risen by 185% in the years since the 2014 Act was implemented, although the majority of that growth was in the early years and the growth last year was at 5%.
Judge Lock said: “They [the council] say, and I accept, there is a national shortage of educational psychologists to undertake the assessments and it is therefore very difficult to complete the assessments within the time periods specified in the Regulations [the Special Educational Needs and Disability Regulations 2014].
“Whilst I accept that the Regulations place onerous obligations on local authorities, these are not duties to use ‘best endeavours’ to complete assessments within defined periods but are hard edged legal duties. Subject to not coming within any of the very limited exceptions under Regulation 10(4), none of which are relevant here, the local authority will be acting unlawfully each time that it fails to complete an assessment and prepare the EHC plan within the time period specified in the Regulations."
The claimant submitted that what happened in his daughter's case was not an isolated incidence but appeared to have been a “common experience” of families who were struggling to secure EHC plans in Hertfordshire.
Judge Lock noted: “The case that the claimant wishes now to advance is that what happened to his daughter was not an isolated case of unlawful action by the local authority but was the consequence of an unlawful system.
“His case is that, whatever the local authority says in its letters in response to initial requests by parents, it is in fact managing demand by refusing a significant number of meritorious applications for assessments and only conceding the need for assessments after parents exercise their right of appeal”.
Considering the claimant’s submissions, the judge noted that the argument that the wider "system" operated by Hertfordshire was unlawful “is a case that the claimant may wish to bring and for which he would have standing”.
Such a case would involve an examination as to exactly how Hertfordshire took decisions when requests were made by parents and, having examined the basis for decision making, would examine whether that process led to any significant risk of unlawfulness.
"To be fair to the local authority, they accept that they have not been able to conduct assessments within the period defined by the Regulations, but they assert that this is a national problem due to the absence of psychologists and not due to a deliberate decision to slow down assessments so as to limit the costs to the local authority of making SEN provision," the judge said.
"As I understand the case advanced by [counsel for Hertfordshire], the local authority deny that there is any policy of not considering initial requests in accordance with the statutory framework, although [counsel] did accept that the number of cases which the local authority conceded before an appeal to the FTT suggested that additional level of scrutiny may be applied to each case at the appeal stage, in advance of an FTT hearing and with the assistance of lawyers, and that this can lead to initial decisions being reversed."
Judge Lock stressed that he did not have the material before him to make any judgment on the systemic case the claimant indicated he wished to bring.
He added: “The local authority had not interpreted the claimant's case as involving a systemic challenge and have not either properly responded to it or, crucially, provided proper disclosure so that it could be adjudicated.”
The primary defence advanced by Hertfordshire to the proceedings in submissions was that the Children and Families Act 2014 sets out a “comprehensive” statutory code and all matters should be dealt with by the Tribunal and that there was no room for judicial review.
Considering this defence, the judge said: “That might raise an arguable defence if a parent was able to appeal to the Tribunal about the failure of a local authority to complete an assessment and prepare an EHC plan within the time period specified in the statutory scheme.
“[Counsel] on behalf of the local authority initially sought to argue that such an appeal was possible because, in effect, if the local authority failed to complete the assessment within the statutory time limit, the local authority should be treated as having made a decision not to undertake an assessment, and thus the case would come within section 51(2)(a). In my judgment that submission has no merit and is wrong.”
The judge said that, on the facts of the case, the claimant could not have brought his complaint to the FTT even though the local authority was acting unlawfully.
"There is no dispute, that the local authority acted unlawfully in that it acted in breach of its statutory duty to complete a 'finalised EHC plan' within 20 weeks. For the reasons set out above, that period of time ran from the date when the request was made by the claimant on 30 December 2022, not from when the local authority agreed to do the assessment on 5 Aril 2023."
He added that the assessment and EHC plan had now been completed and so he did not have to consider whether he would have been prepared to make a mandatory order but he was prepared to make a declaration that Hertfordshire had acted unlawfully in failing to complete the finalised EHC plan within the statutory period.
However, the judge adjourned the remainder of the judicial review claim for 28 days to allow the claimant to seek advice.
He said: “If he wishes to advance the wider, systemic case, he should file an Amended Statement of Facts and Grounds which sets out that case clearly and explains precisely the way in which he contends the local authority is acting unlawfully.”
On the damages sought by the claimant, the judge said his case for compensation should be transferred to the County Court and adjudicated upon within the Small Claims court.
He added: “The case should be transferred once the public law aspects of the case have been concluded, which will either be after 28 days, assuming the claimant elects not to pursue his wider, systemic challenge, or once that challenge has been resolved.”
Lottie Winson
