L, R (on the application of) V Hampshire County Council
[2024] EWHC 1928 (Admin)
HXN, R (on the application of) v London Borough of Redbridge
29 February 2024
[2024] EWHC 443 (Admin)
High Court
A boy with autism wasn't getting the help his special education plan said he should. The council responsible said it was the parents' fault, but the judge disagreed. The judge ordered the council to provide the necessary help and pay for the legal costs because they didn't do their job properly.
Key Facts
- •15-year-old boy (HXN/H) with autism and severe learning difficulties is not receiving the full special educational provision (SEP) outlined in his Education, Health and Care Plan (EHCP).
- •The EHCP specifies full-time 1:1 ABA tutor support (32.5 hours) from a team of 2-4 tutors, but H receives support from only one tutor for three days a week.
- •The Council (London Borough of Redbridge) admits to failing to provide the full SEP.
- •The Council argues that parental conduct, primarily the mother's behavior towards school staff, contributed to the shortage of ABA tutors.
- •The Council also claims a national shortage of ABA tutors and the impending EHCP review as reasons against granting relief.
Legal Principles
Local authorities have an absolute and non-delegable duty to secure the SEP specified in an EHCP.
Children and Families Act 2014, s.42(2) and (6); R (N) v North Tyneside Borough Council [2010] EWCA Civ 135; R (BA) v Nottinghamshire County Council [2021] EWHC 1348 (Admin)
Failure to provide SEP breaches duties under s.19 of the Education Act 1996 and s.42 of the 2014 Act.
R (LB) v Surrey County Council [2022] EWHC 772 (Admin)
Remedies in public law are discretionary; courts consider all circumstances, including the impact on the individual and the authority's efforts to rectify the situation.
R (Imam) v London Borough of Croydon [2023] UKSC 45
Courts apply the Denton criteria when considering relief from sanctions for late filing of evidence.
Denton v TH White Ltd [2014] EWCA Civ 906; AT v Secretary of State for the Home Department [2017] EWHC 3210 (Admin)
Outcomes
The judicial review claim succeeds.
The Council failed to provide the SEP specified in H's EHCP for a prolonged period, despite having readily available options. While parental conduct contributed, it wasn't the predominant cause. The Council's lack of proactive efforts to secure the necessary provision justified a mandatory order.
Mandatory order issued requiring the Council to comply with the EHCP within 5 weeks.
The Council failed to demonstrate a plan for rectifying the situation, and a mandatory order was necessary to ensure H receives his entitled provision.
The Council to pay H's costs on the standard basis.
The Council's unacceptable litigation conduct, including repeated failures to engage with the process and the pre-action protocol letter, justified a full costs order. The mother's conduct, while considered, was not relevant to the litigation conduct.
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