RJ, R (on the application of) v Devon County Council
[2023] EWHC 961 (Admin)
THE KING (ON THE APPLICATION OF SWALCLIFFE PARK SCHOOL) v WOKINGHAM BOROUGH COUNCIL
16 June 2023
[2023] EWHC 1451 (Admin)
High Court
A school didn't want a difficult student. The council placed the student there anyway, without properly talking to the school first. A judge said the council had to talk to the school properly and decide again.
Key Facts
- •Judicial review of a local authority's decision to name a residential special school (Claimant) in a child's Education, Health and Care (EHC) plan.
- •The child, XYZ, has ASD and a developmental language disorder.
- •The school refused placement due to XYZ's challenging behaviours, impacting other pupils.
- •The local authority named the school despite the school's objections.
- •A consent order was made by the tribunal, and the school's application to set it aside was refused.
- •The local authority argued the claim was academic due to an upcoming annual EHC plan review.
Legal Principles
Local authorities must have regard to the child's views, wishes, and feelings, and their participation in decisions.
Children and Families Act 2014, section 19
Local authorities must prepare and maintain an EHC plan if special educational provision is needed.
Children and Families Act 2014, section 37
Local authorities must name a requested school in an EHC plan unless it's unsuitable or attendance would be incompatible with efficient education for others.
Children and Families Act 2014, section 39
The test for incompatibility with efficient education is whether the impact would be 'so great as to be incompatible'.
R (Hampshire CC) v SENDIST [2009] EWHC 626 at [48]
Adequate consultation requires sufficient reasons for proposals to allow intelligent consideration and response, and conscientious consideration of responses.
R (Moseley) v London Borough of Haringey [2014] UKSC 56 and R v Brent London Borough Council ex p Gunning (1985)
A school named in an EHC plan must admit the child, but this doesn't affect the power to exclude a pupil.
Children and Families Act 2014, section 43
The tribunal can make consent orders if appropriate, but doesn't need to hold a hearing or give reasons.
The First-tier Tribunal (Health, Education and Social Chamber) Rules 2008, rule 29
The court must refuse relief if the outcome would likely be substantially the same even without the conduct complained of.
Senior Courts Act 1981, section 31(2A)
Outcomes
The application for judicial review is granted in respect of the local authority's decision to name the school.
The local authority failed to adequately consult with the school before making its decision. The consultation did not meet the required standard of conscientious consideration.
The application for judicial review is granted in respect of the consent order.
The consent order was a consequence of the flawed decision by the local authority.
Grounds 2 and aspects of Ground 1 relating to irrationality and safeguarding were dismissed.
The local authority did not make a decision to withhold the January letter from the tribunal; The evidence did not support a claim of irrationality or failure to consider safeguarding duties.