KING'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY
1 Bridge Street West, Manchester M60 9DJ |
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B e f o r e :
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The King on the application of JSH (by his father and litigation friend RRB) |
Claimant |
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- and - |
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WESTMORLAND AND FURNESS COUNCIL |
Defendant |
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James Cornwell (instructed by Westmorland and Furness Council Legal ServicesDefendant
Hearing date: 20 November 2024
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Crown Copyright ©
Deputy High Court Judge Karen Ridge:
Background
These proceedings
The Legal Framework
"Duty to secure special educational provision and health care provision in accordance with EHC Plan
(1) This section applies where a local authority maintains an EHC plan for a … young person.
(2) The local authority must secure the specified special educational provision for the … young person. …
(5) Subsections (2) and (3) do not apply if … the young person has made suitable alternative arrangements.
(6) "Specified", in relation to an EHC plan, means specified in the plan."
"42. This is an absolute and non-delegable duty not merely a "best endeavours obligation" (N v North Tyneside Borough Council [2010] EWCA Civ 135). In R(BA) Nottinghamshire County Council [2021] EWHC 1348 (Admin) at [37] ("R(BA) v Nottinghamshire"), the Administrative Court confirmed that the 'bulk' of provision should be put in place within five weeks of an EHCP being finalised. The basis for this is the requirement in Regulation 44(2)(e) of the Special Educational Needs and Disability Regulations 2014/1530 ("SENDR"), which provides that where the FTT requires a local authority to take action, and where the required action is to amend the SEP specified in an EHCP, this shall be done within 5 weeks of the order being made."
"A court should proceed cautiously in exercising its discretion to refuse to make an order and should take care to ensure that it does so only where that course is clearly justified. But different types of order are available, and it may be that due enforcement of the law can be sufficiently vindicated by some order other than a mandatory order."
"… the authority has to show that it has taken all reasonable steps to perform its duty. Since it is the court which has to be satisfied that it is not appropriate to grant a mandatory order, the question whether the authority has taken all reasonable steps is an objective one for the court to determine, not a matter of application of the test of reasonableness or rationality in the Wednesbury sense from the perspective of the authority itself."
- The need for contingency planning in terms of allocation of resources to deal with unexpected calls for expenditure.
-Whether the authority had been on "notice in the past of a problem in relation to the non-performance of its duty but failed to take the opportunity to react to that in good time.
-The impact on the individual to whom the duty is owed. "It is the vindication of their right which is being denied, and if the impact on them of the failure to comply with it is very serious and their need is very pressing, this may justify the court in issuing a mandatory order despite the wider potentially disruptive effects it may have.
-Whether the authority had been taking steps to remedy the situation, "If there is no sign as things stand at the time the matter is before the court that the authority is moving to rectify the situation and satisfy the individual's rights, that is a factor pointing in favour of the making of a mandatory order. In such a case, the imperative to galvanise the authority into taking effective steps to meet its obligations more promptly will be stronger.
-The need not to cause unfairness to others by prioritising the Claimant.
Grounds of Challenge
Claimant's Submissions
Defendant's Submissions
1) There has, in the very particular circumstances of this case, been no material breach of the duty under section 42(2) of the Act 2014 due to the impossibility of the Council actually doing anything that would better, or faster, to discharge that duty; or
2) Alternatively, if (contrary to the above submission) there is a breach of the section 42(2) of the Act 2014 duty, then it is a technical one and no purpose would be served by the Court granting permission. The "court will not beat the air in vain" (see Supperstone, Goudie and Walker, Judicial Review (7th ed., 2023), §18-78) – but that is precisely what this claim seeks.
Discussion
(1) A declaration that the Defendant has been in breach of its statutory duty from the commencement of term in September 2024 and that breach is continuing to the present day
(2) A mandatory order requiring the Defendant to provide the Claimant with the SEP set out in the current EHCP; and by no later than 5 weeks from today.