Securing special educational provision

The High Court has provided important guidance on the ‘absolute duty’ to secure special educational provision, writes Ollie Persey.

Following a successful claim for judicial review brought by a severely disabled 17-year-old, the High Court in R(JSH by his father and litigation friend, RRB) v Westmorland and Furness Council [2024] EWHC 3362 (Admin) granted declaratory relief and a mandatory order requiring the Defendant to secure the special educational provision in the Claimant’s Education, Health and Care Plan (‘EHCP’) within five weeks.

The case is a rare example of a judicial review challenging a breach of section 42 of the Children and Families Act 2014 of reaching a final hearing. The judgment is therefore likely to be of significant interest to families, local authorities and lawyers as it contains guidance of more general application regarding the duty to secure special educational provision in an EHCP.

The Claimant is 17 years old, with diagnoses of profound autism, profound communication delay, severe learning difficulties and profound sensory processing disorder. Due to those needs, the Claimant’s functioning is significantly reduced compared to that of young people of his chronological age and he is reliant on adults to meet the majority of his needs. His developmental age has been informally described as that of a “young infant”.

The Claimant’s previous school gave notice in April 2024 that his place there would be terminated at the end of the summer term. Despite this, there was still no special educational provision in place by the start of September 2024. By the date of the hearing on 20 November 2024, the Defendant had identified a social care residential placement that it stated would be available by December 2024. The Defendant explained that it planned to put in place a package of Education Otherwise than at School (‘EOTAS’) at the social care placement.

The Claimant’s family was concerned that this was not a ‘concrete’ option and that there had been significant drift and delay given that the Claimant would miss a term of education even if the Defendant’s proposed EOTAS package was implemented. The failure to secure special educational provision was having a severe impact on the Claimant, with an eight-fold increase in his self-injurious behaviour.

The Defendant’s primary position was that despite the Claimant not receiving any special educational provision for an entire term, this was not a breach of the section 42 duty and that if it was a breach, it was only a ‘technical breach’ and not a ‘material breach’. As such, the Court should not even grant permission for the Claimant to bring his claim for judicial review.

The Court granted permission, made a declaration of breach of section 42 of the Children and Families Act 2014 and issued a mandatory order.

The following parts of the judgment provide guidance that is of more general application in respect of the section 42 duty:

• At §62 the Court held that “I am reminded of the importance which the Court of Appeal attached to cases concerning the education of children or young people- speed must be of the essence. In this case is [the Claimant] is not currently receiving the [special educational provision] set out within either the original EHCP or the amended EHCP.  He has not had any provision since the beginning of the September term. It is clearly arguable that there has been a breach of statutory duty and therefore permission is granted.” This indicates that, contrary to a submission advanced by the Defendant at the hearing, there does not need to be a lengthy period of breach of the statutory duty before the Court will intervene to grant a remedy. Moreover, the judgment is further confirmation – and is consistent with the approach adopted in W v Hertfordshire County Council [2023] EWHC 3138 (Admin) – that the Defendant being in breach of statutory duty means that permission should be granted.
• At §66 the Court rejected the Defendant’s submission that there had not been a breach of statutory duty, holding that “the question of whether there was a breach of statutory duty appears to me to be a binary question: the question has there been a breach leads to either a yes or no answer. There can be no qualification in terms of that answer. Any such qualification goes to the question of relief. As such I do not favour use of the terms ‘material breach’ or ‘technical breach’.” This places beyond doubt that there is no ‘best endeavours’ defence to section 42 of the Children and Families Act 2014.
• The Court is clear that that the greater the notice of upcoming breach of duty, the less latitude a local authority will have for not remedying that breach quickly. At §69 the Court held, that “it is also material that the Council have been providing [special educational provision] for a number of years in accordance with EHCPs subject to annual review. They were well aware of the complex needs and potential difficulties in making provision for [the Claimant’s] education.They were on notice in April 2024 of the termination of the placement at [the school].  The provision at [the school] ended in August 2024, and nothing was in place at the beginning of September.  The finalisation of the revised EHCP was delayed. However, there can be no doubt that the local authority knew what needed to be provided much earlier in the process.” At §72 the Court further held that the “breach could have been anticipated well before September 2024 when the options were narrowing due to an inability to find alternative provision and the breach was clear and obvious at the beginning of September.  It is unfortunate therefore that the Council did not accept the breach within these proceedings and focus on remedying it.”
• The Court was also clear about the need for local authorities to act promptly as soon as they are aware of a pending breach of duty. At §76 the Court held that the Defendant “could and should have anticipated that it would need to commence an immediate and thorough search for alternatives at the point it received the termination notice [in April 2024].” Similarly, at §78, the Court held that “in circumstances where a young person’s education is at stake, when that person has complex needs and the local authority is on notice as to the current placement being terminated, it would have been preferable to have had in mind all options at the outset and to discount those which could be easily discounted.”
• The Court at §77 also criticised the Defendant for “a failure in communication with the parents” as they were “unaware as to the schools which were being consulted”. Similarly, at §78, the Defendant was criticised for proposing an EOTAS package at the family home in early September when the Defendant had been informed that this was not feasible at a meeting on 8 July 2024. The Court held that the Defendant “should have been aware of this and discounted this option earlier in the process.” The Court has therefore indicated that a local authority will have significant difficulties relying on efforts to source alternative special educational provision if there has not been meaningful consultation with the child, young person and/or their family.
• The Defendant having identified a potential way of delivering special educational provision from December 2024 was no basis for resisting a mandatory order. The Court held at §87 that there “remain questions about the details and staffing of that package and matters still to be resolved and finalised. There is no evidence before the court as to contracts being signed.” At §89 the Court held that it “is now some 7 months since notice of termination was given and whilst alternative provision may appear to be within touching distance, there are sufficient doubts to require an order to provide certainty that the breach will be remedied in a short timeframe. The impetus which a mandatory order will provide is necessary in this case where there a vulnerable claimant suffering profound consequences of the absence of provision since the beginning of the September term.”

The judgment is particularly helpful for its guidance on the need for local authorities to be proactive to avoid a potential breach. As soon as it appears likely that there will be a period in which special educational provision will not be secured for a child or young person with an EHCP, a local authority should take all reasonable steps to put in place alternative arrangements before going into breach. A failure by a local authority to take preventative action ahead of a breach will weigh in favour of a Court intervening to grant a mandatory order after only a short period of breach.

Ollie Persey, of the Garden Court Chambers Public Law and Education Law Teams, acted for the successful Claimant, instructed by Helen Barker of Irwin Mitchell LLP.