| SPOTLIGHT |
The High Court has made a mandatory order for a county council to provide an 11-year-old boy with the “full provision to which he is entitled” under his education, health and care plan (EHCP).
Sarah Clarke KC, sitting as a Deputy Judge of the High Court, concluded that the council was in breach of its statutory obligation under s.42 of the Children and Families Act, in that it failed to secure the special educational provision specified in the claimant’s EHCP.
The claimant has diagnoses of Attention Deficit Hyperactivity Disorder ("ADHD"), Autistic Spectrum Disorder ("ASD") and an immune mediated component to a neurobehavioral disorder known as Paediatric Acute-onset Neuropsychiatric Syndrome ("PANS").
The claimant has had an EHCP maintained by the local authority since 23 April 2020.
The judge noted that his current EHCP was issued on 11 September 2023, following the claimant's successful appeal to the First-tier Tribunal (FTT).
In a decision issued on 7 August 2023, the FTT ordered that the claimant must have Education Otherwise than in School ("EOTIS") as specified in section F of his EHCP.
However, Sarah Clarke KC noted: “Nearly a year has elapsed since that FTT decision was issued and it has now been 10 months since the current EHCP was issued, however for much of this period very little of the EOTIS package has been secured.”
She added: “In the claimant's case it is clear from the fourth witness statement of his litigation friend that the failure to provide his EOTIS package has had, and continues to have, a significant detrimental effect on his wellbeing, behaviour, mental state and of course his access to education.”
The claim for judicial review, in which the claimant (by his mother and litigation friend) challenged the council’s failure to secure the special educational provision contained in section F of his EHCP, was issued on 30 November 2023.
Permission was granted by Mr Justice Cavanagh on 21 December 2023.
Sarah Clarke KC observed: “Although it cannot be said that the Defendant has made no attempts to implement the EOTIS programme, it is clear that overall there is some force in the Claimant's submission that the Defendant's efforts have been characterised by delay and drift.”
She noted that at the time of the hearing, the following provisions were not in place:
“The Claimant has been without Special Educational Provision (SEP) provision for over two months, meaning that he has received little academic tuition in that time, which is one of the most fundamental parts of the EHCP. It has still not been confirmed whether FSE [Fresh Start in Education] will provide the necessary programme and if so, when this will start.
“There has been no learning support assistant (LSA) 1:1 support during this time either. This is a critically important part of the EHCP package as the LSA support is required to help the Claimant communicate effectively with his tutors and participate in lessons. The current situation is that the Claimant's parents have been using respite carers for this purpose but the budget for this is nearly exhausted and the respite carers are untrained for this role.”
“The EP cannot complete her oversight role of the Claimant's EHCP without the SEP and LSA being in place. Therefore, although at the moment the EP remains ready and willing to resume her role once the SEP provisions are in place, there is a concern that the longer this drags on, the more likely it is that the EP will feel unable to continue.”
“A (revised) personal budget was issued on 22 May 2024 and is intended to secure parts of the SEP in section F of the Claimant's EHCP:
“i. Section F of the Claimant's EHCP provides for 5 hours of sporting activities per week however, the personal budget limits use of the funds to swimming and tennis. The Claimant's litigation friend explains that this is impracticably rigid and contrary to the Tribunal's order, however this issue remains unresolved, and the payment has not been made.
“ii. A resource budget of £100 that was to be provided by a direct payment within a week of 1 May 2024 has not been provided other than limited provision made to ABC for a short period.”
The judge observed: “It can be seen therefore that very significant parts of the Claimant's EHCP are not being met and have not been met for over 2 months”.
Turning to the specific grounds of the claim, the judge said that the claimant advanced one ground of challenge – that the council was in breach of its “absolute duty” under section 42 Children and Families Act (CFA), because key provisions in his EHCP had still not been secured.
The claimant sought the following substantive relief:
Counsel for the claimant submitted that the court should make a mandatory order because S.42 CFA is an “absolute duty”, not a “best endeavours duty”.
Counsel for the defendant accepted that the council was under an absolute duty to secure the provision in the EHCP and that it was obliged to implement the changes to the EHCP directed by the FTT within 5 weeks, the judge noted.
It was accepted that the council had not complied with this duty.
The judge said: “[counsel for the defendant] submitted however that the Court should not exercise its discretion to grant a mandatory order because:
Counsel for the county council submitted that instead of making a mandatory order, the court could stay the proceedings for a period of time to give it time to comply.
Discussing the case, Sarah Clarke KC said: “The starting point is that s.42 CFA imposes an absolute and non-delegable duty on the Defendant to provide the Claimant's EHCP. This is not a "best endeavours obligation" (R(BA) v Nottinghamshire at [37]) – although the Defendant's submissions appear to suggest that this is how it regards it.”
She noted that the claimant's EHCP was ordered by the Tribunal in August 2023 and has been in force since September 2023. She said: “At no point since then has the Defendant complied fully with its requirements”.
She added: “I accept that in part this is not due to the fault of the Defendant as regards the shortage of available EP's and the sudden termination of ABC [SEP provider], however it is clear from the evidence with which I have been provided, that the Defendant has not been proactive at resolving these issues and that it is apt to describe their conduct as characterised by drift and delay.”
Turning to the issue of whether or not to impose a mandatory order, the judge said: “I cannot accept the Defendant's submission that a Court should not impose a mandatory order just because the Defendant is reliant on third parties to provide the provisions. If this were the case, then it would follow that the Court could never impose a mandatory order in most education cases (but also in many other spheres), where delivery of an EHCP would often rely on a Defendant engaging the services of third-party providers.”
She continued: “To the contrary, the case law makes clear that although a mandatory order is a discretionary remedy, cogent reasons are required as to why a court should decline a Claimant a practical and effective remedy in a case where the Defendant admits to being in fundamental breach of an absolute duty to provide him with his EHCP.”
“[…] I also do not accept that a mandatory order would serve no purpose or be counter-productive, as submitted by the Defendant. It will compel the Defendant to comply with its absolute obligation.”
The claim for judicial review succeeded.
Concluding the case, Sarah Clarke KC made the following orders:
She directed that the council shall pay the claimant's reasonable costs of the claim, “to be assessed if not agreed”.
Lottie Winson
