The Hollow Men

One of the interesting areas of SEN work is the tension that can arise between a local authority which is of course the plan making authority and the school which a child or young person attends. This can become particularly acute due to the different chains of responsibility that can apply and the different sources of funding of education provision.

Long gone are the days, when all schools were accountable to local authorities and both local authority and school made provision were funded from the same pot of money. In particular, to what extent can a local authority minimise its own financial liabilities to make provision specified in a plan, whilst expecting a school to make provision from its own resources? And if it does so, does it act at risk of a judicial review by the school, as occurred in the case of R v Medway Council exp An Academy Trust [2019] EWHC 156 (Admin) ?

In this case the child at the centre of the dispute was described in these terms:

6. X suffers from Autistic Spectrum Disorder (“ASD”). He has delayed language, communication, play and social skills, as well as difficulties with his attention. However, he has many strengths, particularly in remembering patterns and sounds in music, and an amazing ability with computers, never having had any formal training.

7. In April 2018 his parents moved from Greenwich to Medway. At Greenwich X had the benefit of an EHC Plan. The latest version was issued on 29 December 2017 (“the Greenwich plan”). He was then being educated at a mainstream primary school with a resource unit for pupils with language and communication difficulties. The initial intention was that he would move schools on 23 April 2018, when his parents moved house, but it was later decided that he would stay at his Greenwich school until the end of the summer term.

8. Medway initially proposed to take over and retain the Greenwich plan. It asked the School to accept X. The School declined, saying that it considered itself unsuitable to provide for the needs identified in that plan. Rather than looking elsewhere for at least temporary schooling for X, Medway decided to amend the Greenwich plan and name  the School. As a result, the School would be legally bound to accept X, by virtue of section 43 of the Children and Families Act 2014.

9. When making amendments to the Greenwich plan, and converting it to Medway’s style, Medway removed large sections of Section F, which specified the special educational provision to be made for X. The principal challenge is to the rationality of that decision, and therefore the lawfulness of the final amended EHC plan which named the School
in Section I.

10. Medway’s final draft amended EHC plan was sent out on 28 June 2018. Medway apparently intended to issue it 15 days later, on 13 July 2018, but due to an administrative oversight it was not issued as a final plan until 5 September 2018 (“the Medway plan”).

11. Prior to this the School had attempted to get the Secretary of State to intervene, using powers under section 496 of the Education Act 1996. The delay in issuing the Medway plan meant that no progress was made on that request, and the file had been closed by the time the plan was finally issued. That led to further delay when documents had to be sent a second time to the Education and Skills Funding Agency (“ESFA”), which looks at such referrals on behalf of the Secretary of State.

12. The ESFA decision was sent out on 22 October 2018, declining to intervene. The School then sought legal advice, and a pre-action protocol letter was sent to Medway and to the Secretary of State on 8 November 2018, asking for a truncated response time. Both parties sought more time. Medway responded on 22 November 2018, the Secretary of State on 26 November 2018. The claim form was issued on 5 December 2018.

The nature of the dispute between the parties is to be gleaned from the correspondence, which is set out in full in the judgment. In essence, the local authority had removed a large element of the provision specified in the former plan, and proposed top up funding to the school, which fell a long way short of what was felt to be necessary for the child. Even with such funding, the school contended that it would be “unsuitable” to be named as the placement in the plan. In the evidence relied upon in the High Court the position was summarised thus:

60. The statement from the Headteacher, in paragraph 31, sets out six reasons why he says
the School is unsuitable for X’s special educational needs:

“a. We do not currently have any staff with the skillset to support him. For example, none of our staff are trained in the use of British Sign Language, PECS or catering for pupils with severe Autism.

b. [X] is functioning at a low level in terms of his communication skills and Medway have not provided
any provision for this or recognised the full extent of his needs in his EHCP.

c. [X] is used to, and needs, a sensory room for an hour a day. We do not have a sensory room or the space to install one.

d. We do not have the curriculum to teach [X] at his low level of functioning. We are a Junior school only –
starting at age 7 [in contrast to a Primary school taking children from the age of 4 or 5]. [X] is functioning at Plevels which is considerably below any of our other pupils.

e. [X] will not have access to an appropriate peer group. There are no pupils within [X’s] peer group that work at his low level or who require access to the level of intervention that he requires.

f. We fear for [X’s] personal safety when he has a meltdown as being in a mainstream classroom there are
lots of potential dangers and the environment is not adapted to meet his needs.”

The case presented to the High Court was put as follows:

66. The Amended Statement of Grounds pleads the challenge under five heads, briefly as

i) Medway irrationally, unreasonably and unlawfully amended X’s previous [Greenwich] EHC plan without any evidential basis so to do, removing necessary provision.

ii) Medway failed to give conscientious consideration to the School’s response to its consultation in relation to X’s placement, and thereby acted unfairly at common law.

iii) Medway misdirected itself as to the operation of sections 33 and 39 of the 2014 Act, and/or reached a decision as to X’s placement which was irrational and unreasonable, and/or failed to give any or any sufficient reasons for its decision.

iv) Medway breached the Padfield principle, in that it failed to further the policy and objects of the relevant primary legislation.

v) Medway breached section 175 of the Education Act 2002, section 149 of the Equality Act 2010 and/or section 19 of the 2014 Act in failing to have regard to the matters specified under those sections.

What did the High Court make of the argument that the removal of the necessary provision was unlawful? There had been no change in the evidence. As the judge found:

80. There may well be a margin of appreciation between the judgments of different local authorities on the same evidence. But the difference between the Greenwich section F and the Medway section F is so great as to be way outside such a difference of interpretation or judgment. In my view it shows that one or other must be irrational. I do not need to form a view about the Lego Therapy or the Sensory Room. I am preparedto assume for these purposes, without deciding, that they could rationally have been removed from section F. But looking at the underlying material, it is clear that most if not all of the other provisions specified by Greenwich are supported by evidence asbeing required, not just part of an ideal wish list.

81. Perhaps that is why Medway’s initial response, both to the pre-action protocol letter and in the Grounds of Defence, was that they should be assumed to be included. As explained above, this is no longer Medway’s case. If it were, section F would fail the specificity test. As it is now asserted that the deletions were considered and deliberate, I am bound to conclude that Medway’s removal of so much, without any change in the evidence, was irrational and unlawful.

The local authority was also castigated for failing to listen, and consider, as it lawfully had to, the submissions being made by the school:

86. The lack of a properly structured section F also meant that it was impossible to engage in any proper consultation with the School to enable the decision about suitability under section 39(4) to be fairly debated. The School tried to identify the parts of the Greenwich provision which it could not meet. The response did not acknowledge the need for such provision, or consider whether it could be met with added time and funding.

87. I was referred to R (Moseley) v London Borough of Haringey [2014] 1 WLR 3947, at paragraph [25], where Lord Wilson endorsed criteria put forward by Stephen Sedley QC (as he then was) in R v Brent London Borough Council, ex.p. Gunning (1985) 84 LGR 168. It seems to me that Medway fails most if not all of those criteria. In particular, it failed to give sufficient (or any) reasons for the removal of so much of the section F provision, and it failed to show any sign of taking the School’s objections into account or to explain why they were rejected.

88. Mr Eleftheriadis submitted that the fault lay with the School, for failing to provide a costed provision map. That argument fails for various reasons. First, as set out above, the School did attempt to fill in the costed provision map on 17 July 2018, but was unable to do so because of a failure in the online spreadsheet system. Secondly, paragraph 22 of Wendy Vincent’s statement, together with documents produced by her, show that the costed provision map is usually completed after the school has been named in an EHC plan. Thirdly, when figures were supplied by the School, on 26 September 2018, they were ignored by Medway until a revised funding offer was made on 8 November 2018 at about half the level put forward by the School, with no explanation for the shortfall in the evidence before me. Although these costings came after the Medway plan had been issued, X had not yet joined the School, and the whole process could have been brought to an end by a reconsideration of the wisdom of the

An interesting issue that arose, on the case, though really irrelevant given the findings on the first two grounds related to the relationship between the two sections, section 33 and section 39 of the Children and Families Act 2014, which can be notoriously opaque and particularly so, when read together:

92. The inter-relationship between section 33 and section 39 of the 2014 Act is important not only as a further and separate ground of challenge, but also because it is Medway’s case that even a finding of unsuitability under section 39(4) would have led to the School being named in the amended EHC plan by virtue of the operation of section 33. That is the second stage at which the “highly likely” test must be applied.

93. I had the benefit of clear and focussed submissions from Mr Cross for the Secretary of State on the theoretical legal position which, in the end, were accepted by all parties. He did not put forward any submissions on their practical application to the present case.

94. First I should set out the legal route through what can at first glance seem to be the minefield of sections 33 and 39 of the 2014 Act.

i) The only route to section 33 is via section 39(5) or section 40(2). Section 40(2) deals with the case when there has been no request for a specific school, so does not apply here.

ii) Section 39(5) is not engaged unless subsection (4) applies. Subsection (4) only applies where one of two conditions is satisfied:

a) The school requested is unsuitable for the age, ability, aptitude or special
educational needs of the child; or

b) The attendance of the child at the requested school would be
incompatible with the provision of efficient education for others
[meaning other children at that school], or the efficient use of resources.

iii) In all other cases, where subsection (4) does not apply, section 39(3) imposes an absolute duty on the local authority to name the requested school.

iv) Section 39(5) requires a local authority to name a school (if it names one, rather than merely specifying a type of school) which is “appropriate” for the child. That obligation must be looked at, not in the context of the section 39(4) exceptions relating to the school, but in the context of the section 33(2) duty on
the local authority. That is a duty to provide for mainstream schooling unless that is incompatible with the wishes of the parents (which will not arise in a section 39(5) case as that section deals with cases where the parents have requested a particular school), or is incompatible with the provision of efficient
education for others (again, meaning other children at the same school).

v) There is no “suitability” exception in section 33(2). Nor is there an “efficient use of resources” provision as a free-standing exception. Indeed, if education of the child in a mainstream school is currently incompatible with the efficient education of other children there, the local authority will be under a duty to
spend money to overcome that incompatibility up to a reasonable level. This is, in short, the effect of the “reasonable steps” requirement in subsections (3), (4) and (5) of section 33, together with section 42.

vi) In support of this interpretation I was referred to two Upper Tribunal decisions, Bury Metropolitan Borough Council v SU [2011] ELR 14 and Harrow Council v AM [2013] UKUT 0157 (AAC). I have also considered the Court of Appeal decision in R (MH) v The Special Educational Needs and Disability Tribunal and London Borough of Hounslow [2004] EWCA Civ 770, cited in both Upper Tribunal decisions. In view of the agreement among counsel in this case, I need not set out those decisions extensively. However, they appear to me amply to support the conclusions urged upon me by Mr Cross.

vii) The result of this is that “appropriate” in section 39(5) is not a shorthand for “not excused by section 39(4)”. In other words, it does not import a present suitability provision by implication. An “appropriate” school instead refers to one which allows the local authority to comply with its very strict, though not
absolute, obligation under section 33(2).

viii) That conclusion is inconsistent with the provisional view of Upper Tribunal Judge Jacobs in ME v London Borough of Southwark [2017] UKUT 0073 (AAC), at paragraphs [13] and [14]. But that view was expressed without argument, and in my judgment does not stand up to the argument presented to me by Mr Cross, which I hope I have shortly but accurately encapsulated above.

ix) It follows that, as a matter of legal theory, a requested school which escapes being named under section 39(3), as a result of being unsuitable in the terms of section 39(4)(a), could still be named as an appropriate school under section 39(5) which is subject to the constraints imposed by section 33.

95. My initial instinct was to the contrary, and accorded with the provisional view of Judge Jacobs. How could a school which was “unsuitable” for the special educational needs of the child in question be “appropriate” for that same child? To be appropriate, a school must be able to match what the child needs (see per Thorpe LJ in C v Buckinghamshire CC & Special Educational Needs Tribunal [1999] ELR 179). The answer is that the right to mainstream schooling is a stronger right than the right to request a particular school. The right to request a school can be displaced where that school is unsuitable. The duty to provide mainstream schooling somewhere cannot be displaced by the unsuitability of a particular school, or even of all schools in the area. The local authority has to make a school appropriate, if necessary by spending money to do so. So a school which is currently “unsuitable” may nevertheless become “appropriate” once upgraded.

96. No doubt in many cases, where the particular local authority has within its area another school which is already suitable, the requested school is likely to escape being named, because the cost of making it “appropriate” (which to that extent imports a suitability criterion at the end of the upgrading process) would be unnecessary. But there may well be circumstances where the requested but unsuitable school would nevertheless be named in the final EHC plan. Two examples may suffice, though they are by no means exhaustive.

i) If the local authority has a number of mainstream schools, none of which is currently suitable for the particular child, that is no answer to its duty under section 33 to provide mainstream schooling. One of the schools must be made suitable, and therefore appropriate, at the local authority’s cost. The decision as to which school should be chosen for this process will be a matter for the local authority. It has no duty to choose the one requested by the parents of the particular child, but it may do so. What it cannot do is to consider each school in turn against the section 39(4) criteria and, discarding them one by one, announce that no school in its area is left to be considered appropriate under section 39(5).

ii) The requested unsuitable school may be less suitable than another school in the same area. That other school may be suitable without modification, but may be full. The local authority, looking at its broad duties to provide mainstream schooling, may lawfully decide that it is time to upgrade another school to cater for an increasing cohort of children with special educational needs, or for children with a particular type of educational need. That may lead it in due course to name the requested school as being appropriate, despite it escaping automatic naming under section 39(3) by being currently unsuitable within section 39(4).

The result was not in doubt:

106. For the reasons set out above, I have concluded that I should grant permission on Grounds 1 to 3 only. I will make an order quashing the Medway plan.

107. As a result, it seems to me, the Greenwich plan is revived as the subsisting plan, to be treated as if made by Medway on 29 December 2017 by virtue of regulation 15. That regulation requires Medway to review the plan, and such a review is already a little out of time. That review can, and should, take into account the most recent reports, and may require further reports. In the meantime Medway has a duty under regulation 15(6) to arrange for X’s attendance at an appropriate school. Until a school is named in a properly made EHC plan, such an arrangement must be by agreement between Medway and the school, rather than under the compulsion of section 43 of the 2014 Act.

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