HXN, R (on the application of) v London Borough of Redbridge
[2024] EWHC 443 (Admin)
L, R (on the application of) V Hampshire County Council
12 July 2024
[2024] EWHC 1928 (Admin)
High Court
A boy wasn't getting the special help his education plan said he needed. The court said the council had to provide it quickly, because delays hurt his education and wellbeing. The council tried to say it couldn't help, but the court made them do it anyway.
Key Facts
- •11-year-old Claimant with ADHD, ASD, and PANS diagnosed, has an EHCP since April 2020.
- •FTT ordered EOTIS (Education Otherwise than in School) in August 2023, but provision remained largely unfulfilled.
- •Hampshire County Council (Defendant) admitted breach of s.42 Children and Families Act 2014 (CFA), but resisted mandatory order.
- •Significant parts of EOTIS, including LSA support, specialist teaching, and personal budget items, remained outstanding for over two months.
- •Defendant cited EP shortage and unexpected termination of a provider (ABC) as reasons for delays.
Legal Principles
Local authorities have an absolute and non-delegable duty under s.42 CFA to secure special educational provision in EHCPs, not merely a 'best endeavours' obligation.
Children and Families Act 2014, s.42; N v North Tyneside Borough Council [2010] EWCA Civ 135; R(BA) Nottinghamshire County Council [2021] EWHC 1348 (Admin)
In cases concerning children's education, 'speed must be of the essence'.
H v East Sussex County Council [2009] EWCA Civ 249
Mandatory orders are discretionary remedies, but courts need a cogent reason to refuse them when a material public law error is established.
Judicial Review Handbook, section 24.3; R (Imam) v Croydon London Borough Council [2023] UKSC 45
When a breach of statutory duty is established, the onus is on the authority to explain why a mandatory order should not be made to ensure compliance. The authority must show it has taken all reasonable steps.
R (Imam) v Croydon London Borough Council [2023] UKSC 45
A local authority bears the burden of proving it is doing all it can to meet its legal duty. Unless it can prove this, it is likely to face a mandatory order for prolonged failure to comply.
R(HXN) v London Borough of Redbridge [2024] EWHC 443 (Admin)
Outcomes
Claim for judicial review succeeded.
Defendant admitted breach of s.42 CFA; delays were not solely due to factors outside its control; Defendant did not demonstrate sufficient proactivity or contingency planning; a mandatory order was necessary to ensure compliance and address the significant impact on the Claimant's wellbeing and education.
Declaration that the Defendant is in breach of s.42 CFA.
Defendant's failure to secure the special educational provision specified in the Claimant's EHCP.
Mandatory order requiring Defendant to provide full EHCP provision within 5 weeks (by 16 August 2024).
To ensure compliance with the absolute duty under s.42 CFA, given the serious impact on the Claimant and the history of delays and unfulfilled assurances.
Defendant to pay Claimant's costs.
Standard costs order in successful judicial review claim.
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