Children’s rights legal digest – May 2022

This month, we focus on a recent judgment which found a local authority had failed to meet its statutory duties under the Education Act 1996, the Children and Families Act 2014 and the Children Act 1989. After identifying “serious and substantial breaches of duties” that left a 15 year-old child with complex needs without suitable accommodation, education and support, the High Court judge concluded that an order was necessary to ensure compliance with the duties imposed by Parliament. The judgment contains a clear and useful analysis of the law, including relevant case law, and it will be of interest and relevance to all those supporting children and young people of compulsory education age who require special educational arrangements because of illness, exclusion or another reason.

High Court finds local authority responsible for “serious and substantial breaches” that left highly vulnerable child without suitable accommodation, education and support

Background

This important High Court judgment concerns a 15 year-old girl referred to as LB. LB has complex health and educational needs, which include Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder with associated complex learning difficulties, social communication, emotional and sensory dysregulation, self-injurious behaviour and complex learning and language needs. She requires constant supervision. LB became looked after in 2015 when she was accommodated by the local authority under section 20 of the Children Act 1989.

Between 2015 and 2021, LB was a full-time student at a residential school. In early 2021, while LB was left unsupervised at school, she became seriously injured. LB’s mother, concerned about her daughter’s safety, brought LB home.

The local authority agreed that a new residential placement should be found for LB. In June 2021, LB moved to a new residential school but after only a few months it gave notice to the local authority stating it would not continue to support LB from mid-October. In early October 2021, LB’s mother contacted the local authority saying she was prepared to have LB at home for a maximum of one week if suitable support was put in place, and a few days later LB’s solicitors requested an assessment of LB’s needs. [LB’s latest assessment was dated December 2020 and her education, health and care plan was dated August 2020].

Over the next 4 months, attempts were made to identify suitable educational provision for LB but to no avail. During that time, she remained at home with her mother. 

LB’s mother pursued legal action against the local authority, claiming breaches of statutory duties under the Education Act 1996, Children and Families Act 2014 and Children Act 1989.

The legal framework

The duties relating to provision of suitable, alternative education

Education Act 1996:

Section 19 of the Education Act 1996 places a duty on local authorities (‘shall’) to make arrangements for the provision of suitable education at school or elsewhere (‘education otherwise than at school’ – EOTAS) for those children of compulsory education age who, because of illness, exclusion or another reason, can’t receive suitable education for any period of time, unless such arrangements are made for them [section 19(1)]. When deciding what arrangements to make, local authorities must have regard to any relevant statutory guidance [section 19(4A)].

Section 19(6) defines ‘suitable education’ as “efficient education suitable to [the child’s] age, ability and aptitude and to any special educational needs [the child] may have”.

Accompanying statutory guidance – Alternative provision: statutory guidance for local authorities (2013) – further defines the meaning of ‘good alternative provision’:

“Good alternative provision is that which appropriately meets the needs of pupils which required its use and enables them to achieve good educational attainment on par with their mainstream peers. All pupils must receive a good education, regardless of their circumstances or the settings in which they find themselves. Provision will differ from pupil to pupil, but there are some common elements that alternative provision should aim to achieve”.

The ‘common elements’ include good academic attainment with appropriate accreditation and qualifications; identification and meeting of the specific personal, social and academic needs of pupils to help children overcome barriers to attainment; engagement with education; and clearly defined objectives for future education, training or employment.

The duties relating to education, health and care (EHC) plans

  • Children and Families Act 2014

Section 21(1) of the Children and Families Act 2014 defines special educational provision as “educational or training provision that is additional to, or different from, that made generally for others of the same age in [mainstream education]”. This definition applies to children aged 2 and older. [For children under the age of two, see section 21(2)].

Section 37(1) concerns EHC plans and requires local authorities to prepare an EHC plan and maintain it if an EHC needs assessment reveals it is necessary to make special educational provision. 

Section 42(1) and (2) places a duty on local authorities to secure the specified special educational provision for the child or young person for whom an EHC plan is in place.

Section 44 requires local authorities to review EHC plans every 12 months AND secure a re-assessment of the child/young persons’ educational, health care and social care needs if this is requested by the child’s parent or the young person.

  • The Special Educational Needs and Disability Regulations 2014

Regulation 29(2) states that if a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan and amend it where appropriate, to ensure continuity of education or training. 

  • Case law
In R (BA) v. Nottinghamshire County Council, the High Court considered the duty imposed by section 42 of the Children and Families Act 2014:

“... Section 42 imposes a duty on local authorities to secure the special educational provision specified in an [education, health and care plan] created by the Children and Families Act 2014. It is an absolute and non-delegable duty ... There is no "best endeavours" defence” [paragraph 27 of the judgment].  

The duties relating to children in need and their families

  • Children Act 1989

The High Court summarised the duties of local authorities under section 17 of the Children Act 1989, highlighting it as ‘ongoing duty’:

The duty under section 17 is an ongoing one... If an authority has assessed a child not to be in need but there is then a relevant change in circumstances or further material information comes to light which suggests that a child may be in need, the authority may have to reassess or, at least, make inquiries in order to decide whether a reassessment is required” [paragraph 27 of U and U, R (on the application of) v Milton Keynes Council].

Section 17ZD requires local authorities to assess whether a parent carer within their area has needs for support and what those needs are if (a) it appears that the parent carer may have needs for support, or if (b) the parent carer requests this.

The High Court’s decision

The local authority accepted that it had breached its duties under the Children and Families Act 2014 to undertake a review of LB’s EHC plan and to secure educational provisions for LB as specified in her EHC plan. The local authority also conceded that it had failed to provide accommodation for LB, contrary to its duty in section 20 of the Children Act 1989.

However, it contested other aspects of LB’s legal challenge.

While LB was left without education for almost four months, the local authority stated in court that the mandatory duty (under section 19 of the Education Act 1996) to provide suitable education is not to provide it but to make arrangements for it, which it said it had done. The judge disagreed:

The duty to make arrangements for the provision of suitable education is not a duty to attempt to make arrangements … It is a duty to ensure that there is available for each child an efficient educational facility that is suitable for the child’s age, ability and aptitude and any special educational needs that the child may have (as defined in section 19(6) of the 1996 Act). The question to be asked is whether educational provision is available, is possible, and is accessible to the child”.

The judge also noted that, based on the chronology of events, it was clear significant delays took place even when it became obvious that a particular approach would not work in securing suitable education for LB.

The local authority also contested it had breached its duties under sections 17 and 17ZD of the Children Act 1989, stating it had conducted a needs assessment for LB in December 2020 and an assessment of LB’s mother’s needs, as her carer, was “in progress”. The judge disagreed again, stating that the local authority had been aware of LB’s planned move to her mother’s house as a temporary measure and that various events which followed LB’s removal from the residential school were ‘material’ and should have triggered a review of LB’s needs, her care plan and her placement plan:

“In my judgment, in the particular circumstances of the case, given LB’s complex needs, and the particular strain that caring for LB placed on [her mother], by waiting until 18th January 2022 (some three months after LB returned to LE’s home) the [local authority] failed to institute, let alone undertake, an assessment under section 17ZD within a reasonable period”.

In response to the remedies (‘relief’) sought by LB’s lawyers, the local authority stated that there was no residential accommodation and no educational setting available, and that If there had been a breach of the duties set out in law, it was “as a result of the impossibility of compliance with the various duties”. For these reasons, the local authority believed any remedies decided by the court “would serve no practical effect”.

The court yet again disagreed:

“In my judgment … there have been serious and substantial breaches of duties imposed upon the [local authority] by statute. Those duties relate to the provision of accommodation, education and care to a young and vulnerable person … If the [local authority] had acted in accordance with the duties imposed upon them, [LB] would have been provided with education, and with appropriate support and accommodation […] This is not a case where the relief sought would serve no practical purpose … and an order of the court is necessary to ensure that the [local authority] complies with the duties imposed upon them by Parliament […] The court will not order a party to do the impossible, however a court will order a local authority to carry out the duties imposed upon them by statute”.

The judge made several orders:

  • The local authority must make arrangements for LB to be provided with suitable education as soon as possible and within no more than 30 days.
  • The local authority must conduct a review of LB’s EHC plan as soon as possible and within no more than 30 days.
  • The local authority must provide LB with suitable accommodation as soon as possible, and within no more than 30 days.
  • The local authority must conduct a re-assessment of LB’s needs of the needs of her mother as a carer as soon as possible, and within no more than 30 days.
  • The local authority must review and prepare an up to-date care plan for LB as soon as possible, and within no more than 30 days.

You can read the full judgment here: LB (A Child), R (On the Application Of) v Surrey County Council