| SPOTLIGHT |
A High Court judge has quashed a council’s decision in relation to the needs of a teenage boy, after it failed to assess “all relevant considerations” having departed from recommendations by the SEND tribunal.
In LS, R (On the Application Of) v London Borough of Merton [2024] EWHC 584 , Mr Justice Freedman refused permission for judicial review on ground 1, but granted permission for grounds 2 and 3.
The application concerned a young person referred to as "LS", aged 15 years old.
LS has severe autism and extremely complex mental health needs. The judge noted that there have been problems about his being violent at home, particularly to his parents and his younger sibling.
Arising out of his regression, the matter was referred to the Special Educational Needs and Disability (SEND) Tribunal.
The judge said: “This application arises from a decision of the Tribunal which reached a decision on a parental appeal on 5 October 2023. Following that decision, on 9 November 2023, the London Borough of Merton wrote determining that the placement ordered by the Tribunal was a 38-week placement and rejected the Tribunal's recommendations on social care. It offered an alternative social care provision.”
In connection with social care provision, the Tribunal noted (at [104] of its decision) a request of the parents that "LS requires accommodation within a specialist residential school, for 52-weeks of the year, where he will receive consistency of approach from familiar, skilled and qualified adults."
The Tribunal set out at [106] the LA proposal for social care support relating to the 14-week holiday comprising a total of 20 hours per week. It set out that the longer periods at home during the school holidays would be likely to have a negative impact on any progress that LS made when in school residential placement.
It recommended a residential placement for 52 weeks of the year, stating that returns home could be planned when LS was able to return, managing the anxiety levels and behaviour of LS.
A letter was sent by the LA to the parents in November 2023. This acknowledged the difficulties that the family faced in caring and supporting LS, considering LS had spent his whole life at home with his family. It explained why the Tribunal decision was largely a recommendation about social care provision.
However, the case of the claimant was that it was about educational provision, said Mr Justice Freedman.
A pre-action protocol letter dated 14 November 2023 was issued from solicitors for LS by his litigation friend, his father.
The main part of the pre-action letter was to the effect that the Tribunal's decision was binding on the LA since it was a 52-week placement for educational reasons.
It also sought that the local authority should withdraw its decision of November 2023 not to comply with the social care recommendations of the Tribunal.
Mr Justice Freedman outlined the three key issues as follows:
On ground 1: whether the Tribunal ordered the council to provide 52-week education, Mr Justice Freedman said: “It is important at the outset to distinguish between Special Educational Provision and social care provision. The reason for this is that whether there is direct or deemed Special Educational Provision, the recommendation must be contained in section F of the EHC Plan and gives rise to the absolute duty on the LA to secure that provision as set out in section 42 of the CFA 2014.
“[…] It is clear from the order of the Tribunal that it had in mind this distinction in that it made an order relating to Sections B, F and I of the EHC Plan, but it made recommendations only to amend the Plan in Sections D, H1 and H2. Section H is for social care provision which does not educate or train.”
The judge noted that the reasoning in the Tribunal's decision was that claimant required educational provision outside of the normal day, (an extended day curriculum). He said: “A waking day or extended day curriculum is one where a child requires education provision before and after the school day. […] The concept of an extended day curriculum is distinct from a 52-week curriculum.”
In addition to the order about an extended day curriculum, the Tribunal recommended by way of social care provision that the Claimant should have a 52-week placement, ie provision during the school holiday.
The judge said: “That was a part of the recommendations in Sections H1 and H2 and therefore does not form part of the educational provision. If it had been a Special Educational Provision, it would have formed a part of Section F, and it would have been made into a mandatory order.
“The fact that it was a recommendation as a social care provision within Section H1 and H2 is conclusive of the position and therefore of the first issue being resolved against the Claimant.”
Mr Justice Freedman concluded that ground 1 of the challenge must fail. He said: “It follows that the relief sought of a declaration that the Tribunal decided that LS required a 52-week placement on educational grounds is rejected.”
Turning to ground 2: “Rationality/Wednesbury reasonableness of the social care letter”, the judge said: “For this purpose, it is necessary to assume that the decision cannot be challenged on the basis that the LA was mandated to follow the decision of the Tribunal. That is not to say that the decision cannot be challenged on the basis either that there are not adequate reasons for departing from the recommendation of the Tribunal, or, even if there are, that the decision was irrational or Wednesbury unreasonable.
The Department for Education Guidance March 2018, states as follows:
"Although any recommendations by the Tribunal on health or social care elements of an EHC plan are non-binding, there is no requirement to follow them than an LA and/or Responsible Health Commissioning Body are generally expected to follow them. They are recommendations made by a specialist Tribunal and should not be ignored or rejected without careful consideration. Any reasons for not taking them forward must be explained and set out in writing."
Counsel for the claimant submitted that the reasoning of the local authority in its decision letter of 9 November, supported by its 28 November response letter, did not address the "totality of the evidence" of the Tribunal.
Outlining submissions by the local authority, Mr Justice Freedman said: “It is stated on behalf of the LA that it is hard to decipher the precise reason why the decision is said to be irrational. It is said that there is a failure to engage in the detailed reasoning of the decision letter of 9 November 2023.
“It is pointed out that there has not been a reasons challenge in the Statement of Facts and Grounds and that there has been no application to amend. The duty to give reasons does not extend to referring to every item before the FTT. The reasons given were detailed and said to be plainly rational.”
The judge noted that the challenge was of Wednesbury unreasonableness. Considering the letter of 28 November 2023 and the departure from the decision of the Tribunal, he said: “The overall reasoning of the Tribunal was that the 52-week placement would reduce the regular disruption and transitions which affected LS's anxiety level and his behaviour around these contacts. […] Having taken into account the totality of the evidence, it took the view that the move to a 52-week placement was appropriate.”
The judge concluded: “The evidence before the Tribunal and the conclusions of the Tribunal were matters to be considered by the decision maker in the letter of 9 November 2023 or in the letter of 28 November 2023. As set out above, there was a failure in the letters to carry out an exercise in assessment, calibration and balancing of the various factors.
“If there was to be a departure from the decision of the Tribunal, that exercise was required, and it did not suffice simply to identify the factors which were identified. That was a failure of process in failing to take into account and assess all relevant considerations.”
Mr Justice Freedman ordered the local authority to make its decision again, but this time undertaking the assessment, the calibration and the balancing of the relevant factors including but not limited to those found by the Tribunal against the matters which the local authority has taken into account.
He said: “The decision ought to be quashed on these public law grounds, and the assessment, calibration and balance ought to be undertaken so as to reach a lawful decision.”
On ground 3: “lack of specification of provision for various therapies”, the last paragraph of the skeleton argument on behalf of the claimant read as follows:
"[57] It is submitted that there is no specification of provision for speech and language therapy, occupational therapy or behaviour management in Sections H1 or H2 in the plan as served. It is plain from the Tribunal findings and evidence that this other professional input would be essential to supporting any social care provision, assuming such social care provision is separate to Section F of the plan. The case law on specificity cited above apply to Section D and Sections H1 and H2. The Code is clear on the points. The current plan lacks specific details of the provision required, and in fact omits essential provision and is unlawful in those sections.”
The claimant sought the following order in relation to the ground:
"An order that the London Borough of Merton withdraw the EHC Plan for LS, issued on 9 November 2023, and reissue it, amending section H2 so that it contains all relevant social care provision required to meet child LS's social care needs."
The judge noted that the local authority “resists this criticism and order”, submitting that the degree of specificity was “sufficient”.
Discussing ground 3, Mr Justice Freedman said: “It is important to see Ground 3 in perspective. It is not as central as the first ground and the second ground. On the basis of that which has been found in respect of Ground 2, the decision is quashed.
“Since the EHC plan is to be drawn up again, this matter may be subsumed within the order on Ground 2, and the above criticisms may be noted. The Court would be assisted by the consideration of the parties to consider as to whether an additional order is required in a modified form or at all to reflect the finding on Ground 3.”
Concluding the case, the judge refused permission for judicial review on ground 1, but granted permission for grounds 2 and 3. He said: “Ground 1 has been resolved in favour of the LA. As regards Ground 2 of the application for judicial review, permission to bring an application for judicial review is granted. For the reasons set out above, the decision of 9 November 2023 is quashed.
“As regards Ground 3, permission to bring the application is granted. There is not sufficient specificity in the EHC plan. Having regard to the decision in respect of the second ground, it remains for the parties to consider whether any relief is required in modified form or at all in respect of Ground 3 (in addition to the relief in respect of Ground 2).”
Lottie Winson
