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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AY, R (On the Application Of) v Vale of Glamorgan County Borough County [2025] EWCA Civ 671 (22 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/671.html Cite as: [2025] WLR(D) 297, [2025] EWCA Civ 671 |
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ON APPEAL FROM THE HIGH COURT (ADMINISTRATIVE COURT IN WALES)
HHJ KEYSER KC
AC-2024-CDE-000033
2 Park Street, Cardiff CF10 1ET |
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B e f o r e :
LORD JUSTICE PHILLIPS
and
LORD JUSTICE LEWIS
____________________
THE KING (on the application of ![]() | Appellant |
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- and - |
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Respondent |
____________________
Christian Howells (instructed by Vale
of
Glamorgan
Legal Services) for the Respondent
Hearing date: 8 May 2025
____________________
Crown Copyright ©
LORD JUSTICE LEWIS:
INTRODUCTION
Ground 1. Parents of children with additional learning needs have a right under the Act and the Code to be accompanied by by an advocate of their own choosing at an IDP review (or that it was ultra vires for the respondent to refuse to allow them to be so accompanied);
Ground 2. Alternatively, if the respondent had a discretion, its refusal to allow the parents to be accompanied by their chosen advocate in the present case was Wednesbury unreasonable.
THE LEGAL FRAMEWORK
The Act
"1 Overview of this Act
(1) Part 2 of this Act establishes the statutory system in Wales for meeting the additional learning needs of children and young people; it contains 5 chapters.
(2) Chapter 1 (sections 2 to 9)—
(a) gives the meaning of the key terms "additional learning needs" and "additional learning provision" (sections 2 and 3);
(b) provides for a code of practice on additional learning needs (sections 4 and 5);
(c) makes provision about participation by children, their parents and young people in decisions ….. (sections 6 to 9)."
…..
(3) Chapter 2 (sections 10 to 46) provides for individual development plans for children and young people with additional learning needs.
…..
(7) Chapter 3 (sections 47 to 67) makes further provision for and in connection with functions related to meeting additional learning needs, including—
(a) a duty on local authorities to favour education in mainstream maintained schools for children with additional learning needs (section 51);
…..
(8) Chapter 4 (sections 68 to 81) makes provision about avoiding and resolving disagreements; it provides for—
(a) local authority arrangements for the avoidance and resolution of disagreements (section 68);
(b) independent advocacy services (section 69);
(c) rights of appeal to the Education Tribunal for Wales in respect of decisions as to whether or not a child or young person has additional learning needs, the contents of individual development plans and other decisions relating to plans (sections 70 and 72)."
"(1) The Welsh Ministers must issue, and may from time to time revise, a code on additional learning needs ("the code").
(2) The code may include guidance about the exercise of functions under this Part and about any other matter connected with identifying and meeting additional learning needs.
(3) The following persons must, when exercising functions under this Part, have regard to any relevant guidance contained in the code—
(a) a local authority in Wales or England;
…..
(5) The code may impose requirements—
(a) on a local authority in respect of arrangements it must make under sections 9 (advice and information), 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services);
….."
"A person exercising functions under this Part in relation to a child or young person must have regard—
(a) to the views, wishes and feelings of the child and the child's parent or the young person,
(b) to the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned, and
(c) to the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions."
(2) The local authority must—
(a) prepare and maintain an individual development plan for that child or young person, or
(b) if the child or young person is, or is to be, a registered pupil at a maintained school in Wales and the authority considers it appropriate—
(i) prepare an individual development plan and direct the governing body of the school to maintain the plan, or
(ii) direct the governing body of the school to prepare and maintain a plan.
…..
(10) Where a local authority maintains an individual development plan for a child or a young person, the authority must—
(a) secure the additional learning provision described in the plan
….."
"(1) A governing body or a local authority required to maintain an individual development plan must review it before the end of each review period."
"(1) A local authority must make arrangements with a view both to avoiding and to resolving disagreements between—
(a) education bodies, and
(b) children or young people for whom the authority is responsible, or in the case of such children, their parents,
about the exercise by education bodies of their functions under this Part.
…..
(6) In this section, an "education body" means any of the following—
(a) the governing body of a maintained school;
(b) the governing body of an institution in the further education sector;
(c) a local authority."
"(1) A local authority must—
(a) make arrangements for the provision of independent advocacy services for the children and young people for whom it is responsible;
(b) refer any child or young person for whom it is responsible who requests independent advocacy services to an independent advocacy service provider;
(c) refer any person who is a case friend for a child for whom it is responsible and who requests independent advocacy services to an independent advocacy service provider.
(2) In this section "independent advocacy services" means advice and assistance (by way of representation or otherwise) to a child, a young person or a case friend—
(a) making, or intending to make, an appeal to the Education Tribunal for Wales under this Part,
(b) considering whether to appeal to the Tribunal, or
(c) taking part in or intending to take part in arrangements made under section 68.
(3) In making arrangements under this section, a local authority must have regard to the principle that any services provided under the arrangements must be independent of any person who is—
(a) the subject of an appeal to the Tribunal, or
(b) involved in investigating or adjudicating on such an appeal.
(4) The arrangements may include provision for the local authority to make payments to, or in relation to, any person carrying out functions in accordance with the arrangements made under this section.
The Code
"The principles underpinning the ALN system are:
(a) A rights-based approach where the views, wishes and feelings of the child, child's parent or young person are central to the planning and provision of support; and the child, child's parent or young person is enabled to participate as fully as possible in the decision making processes and has effective rights to challenge decisions about ALN, ALP and related matters
….."
"The duty in practice
4.9. In order to satisfy the duty, local authorities, maintained schools and FEIs should, when making decisions about a child or young person's ALN, ALP or other matters related to an IDP (including whether one is necessary):
(a) seek the child, their parent or young person's views on how they wish to participate in the decisions ahead of those decisions being made;
(b) provide information relevant to the decision to the child, their parent or young person in a way which enables that child, their parent or young person to understand it;
(c) encourage the child, their parent or young person to participate fully in the process;
(d) use the child, their parent or young person's views to inform the decisions; (e) ensure the child, their parent or young person has access to information and advice about ALN and the ALN system.
4.10. When and how this is done will depend upon what is appropriate in the particular circumstances. A school, FEI or local authority should do these things at an early stage in the process for making such decisions and continue to do them during that process as may be necessary to enable the child, their parent or the young person to be fully involved in the process."
"22.6. A maintained school, FEI or local authority holding a meeting with a child, their parent or a young person should:
(a) run the meeting(s) following person-centred practice approaches, and
(b) take a person-centred practice approach to the gathering and presentation of information (where relevant).
22.7. Person-centred practice puts the child, child's parent or young person at the centre of decisions. The Welsh Government has published a number of guidance documents on person-centred practice, which are available online.
22.8. As the key principle for meetings is to take a person-centred practice approach, the preparation for, format and conduct of any meeting and the number of meetings held will depend upon the particular circumstances of the case. Any policies or processes of schools, FEIs or local authorities relating to meetings will need to be sufficiently flexible to allow for an approach that is appropriate in the individual circumstances of any case.
22.9. To give effect to person centred-practice, meetings should involve the child or young person and, in the case of a child, their parent attending. However, this might not always be appropriate or possible.
22.10. Meetings can be intimidating for children, their parents and young people, particularly if there are a large number of professionals in attendance. The maintained school, FEI or local authority organising a meeting should consider whether there are measures it could take which would better facilitate the participation of the child or young person, and in the case of a child, their parent in the meeting itself, or in the wider decision-making process. In doing this, it should take into account the child, their parent or the young person's views and any preferences they have previously expressed. Such measures could include the following:
(a) a separate meeting or meetings with a child, their parent or young person and just one or two professionals. This could be a meeting with the child, their parent or young person to elicit their views in advance of a larger meeting with all the necessary professionals. There could also be a separate meeting afterwards to get the child, their parent or young person's feedback on views reached at the larger meeting. It might also be appropriate for the person organising a meeting with a large number of professionals to ask some of them to leave during the meeting if that would better enable the child, their parent or young person to give their views.
(b) a child or young person only attending part of the meeting;
(c) designing the layout of the room to suit the child, their parent or the young person;
(d) holding the meeting in a room with which the child, their parent or young person is familiar or in which they are comfortable;
(e) having a teaching staff member present who the child or young person trusts or communicates well with to help explain matters and gauge whether the child or young person seems to have understood. The involvement of a person who is well-known to the child or young person may prompt greater confidence amongst the child, their parent or the young person;
(f) preparing a child, their parent or a young person for the meeting by explaining what will happen, how many people will be there, who will sit where, the questions they are likely to be asked and the issues likely to be discussed;
(g) enabling the child or young person to participate virtually, provided they are able to participate effectively (see paragraph 22.4)."
"22.31. Where a meeting is held to review an IDP, the maintained school, FEI or local authority responsible for the review should in advance of the meeting seek input from all those agencies and professionals whose input, it considers, may be required to conduct an effective review. This would include those already engaged in the delivery of ALP described in the IDP. However, to ensure the effective and efficient use of agencies and professionals, their input need only be sought if their continued involvement is likely to be useful in identifying or delivering future ALP for the child or young person, or otherwise inform the contents of the IDP. Therefore meetings may not always include all those who were involved in the preparation of the original IDP.
22.32. The maintained school, FEI or local authority responsible for the review should provide a report to the child or young person and, in the case of a child, their parent on the child or young person's progress in sufficient time for them to consider it and enable them to participate as fully as possible in discussions at the meeting. Where advice/reports have been supplied by agencies or professionals in advance of a review meeting, these should be shared with the child or young person and, in the case of a child, their parent, for their consideration.
22.33. When seeking input from agencies or professionals, the maintained school, FEI or local authority responsible for maintaining the IDP, should indicate to those whose input is being sought, that the review will have a focus on transition and/or preparation for adulthood where this is the case (see Chapter 27). Where the review does have a focus on next steps such as leaving school or preparing for adulthood, different professionals might also be involved, such as career specialists.
22.34. A review meeting will require those contributing to the review to consider whether the ALP which has been delivered has led to the outcomes set out in the IDP being achieved. This is a key difference between review meetings and meetings to decide whether a child or young person has ALN and if so, to prepare the IDP (where usually, there is no recent IDP to consider).
22.35. It would not usually be necessary to repeat or reconsider background information or evidence unless a change has occurred which affects the matters under consideration.
22.36. Chapter 25 sets out the matters which it is the purpose of a review to consider. Maintained schools, FEIs and local authorities should use review meetings to gather and analyse any new information or evidence that has come to light which affects those matters and in light of that information and evidence, consider whether to, and if so how to, revise the IDP.
22.37. During and after meetings, the person leading it should offer an opportunity to the child or young person and, in the case of a child, their parent to discuss the information and advice gathered. 22.38. To aid in the evaluation and assessment of the effectiveness of the child or young person's ALP, impact monitoring is a useful tool. Interim short term targets can help to indicate whether ALP is contributing effectively towards meeting the outcomes or whether particular ALP is no longer required and/or not having its desired effect."
"25.29. The purpose of a review is to consider:
(a) the child or young person's progress towards achieving the intended outcomes;
(b) whether the child or young person still has ALN and, if so, whether their needs have changed and if so, what those needs now are;
(c) the continued suitability of the outcomes and, if appropriate, decide new or revised outcomes;
(d) whether the ALP and any other provision (namely, a place at a particular institution; board and lodging) to meet the child or young person's reasonable needs for ALP is still appropriate and whether additional or different ALP is called for;
(e) whether the child or young person might need to receive the ALP at a particular school or other institution and whether board and lodging may be needed;
(f) consider any other matters related to the child or young person's education or training which affect the IDP (for instance a forthcoming transition, or in the case of a young person not at a maintained school or FEI, whether it is necessary to maintain the IDP to meet the young person's reasonable needs for education or training (see Chapter 17))."
"Other advisory or advocacy services may also be available to support a child or young person more generally, such as to help them to make informed decisions about their ALP. Informal advocates, or advocacy services provided by a third party may be useful when attending an IDP review meeting or planning for transition (see Chapter 27 for information on planning for and supporting transition)."
THE FACTS
The Initial IDP and the Appeal
The dispute about the additional learning provision
The claim for judicial review
The review of the IDP
The amendments to the claim for judicial review
The revised IDP
The judicial review proceedings
PRELIMINARY MATTERS
GROUND 1 – RIGHT TO BE ACCOMPANIED BY A SOLICITOR AT A REVIEW MEETING
Submissions
Discussion and Conclusion
CONCLUSION
LORD JUSTICE PHILLIPS
LORD JUSTICE NEWEY