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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin) (08 March 2022) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2022/493.html Cite as: [2022] ELR 515, [2022] EWHC 493 (Admin), [2022] PTSR 1071, [2022] WLR(D) 111 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
____________________
THE QUEEN (on the application of) |
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L (by her litigation friend N) |
First Claimant |
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M (by her litigation friend O) |
Second Claimant |
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P (by his litigation friend Q) |
Third Claimant |
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- and - |
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Devon County Council |
Defendant |
____________________
Jack Anderson (instructed by Devon County Council Legal Dept) for the Defendant
Hearing date: 30 April 2021
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Crown Copyright ©
THE HONOURABLE MRS JUSTICE FOSTER DBE:
INTRODUCTION
THE INDIVIDUAL CLAIMS
THE LEGAL FRAMEWORK
"4. Section 37(1) of the Children and Families Act 2014 ('the Act') makes provision for EHC plans 'Where, in the light of an EHC assessment, it is necessary for special educational provision to be made for a child…in accordance with an EHC plan…'. Section 37(2) of the Act explains what must be specified in an EHC plan. Section 37(4) enables Regulations to be made 'about the preparation, content, maintenance, amendment and disclosure of EHC plans'. When a local authority maintains an EHC plan for a child, it must secure for the child the educational provision which is specified in the EHC plan (section 42(2)).
"5. Section 44(1) requires a local authority annually to review a plan which it maintains. Section 44(2) provides for when a local authority must re-assess a child's needs. When a local authority reviews an EHC plan or re-assesses a child's needs, it must consult the child's parents (section 44(6)). Section 44(7) enables Regulations to make provision about reviews and re-assessments. Section 44(8) and (9) make further provision about such Regulations.
"6. Section 51 of the Act confers a right of appeal to the First-tier Tribunal ('the FTT', known in this context as 'SENDIST') on the parent of a child against the matters specified in section 51(2). That right may be exercised after an amendment to an EHC plan (section 51(3)(b)).
"7. Section 77(1) obliges the Secretary of State to issue a code of practice giving guidance about the exercise of their relevant functions to local authorities, among others. Local authorities, among others, must 'have regard to' the code when exercising those functions (section 77(4)).
"8. The Regulations made under sections 37(4) and 44(7) of the Act are the Special Educational Needs and Disability Regulations (2014 SI No 1530) ('the Regulations'). Regulation 18 describes the circumstances in which a local authority is obliged to review an EHC plan. These include where a child is within 12 months of a transfer from one phase of education to another. In such a case, the local authority must review and amend the EHC plan by a specific date, which, in the case of children under 16, is 15 February in the calendar year of the transfer.
"9. When a local authority reviews the EHC plan of a child who goes to school, they must ensure that there is a review meeting, to which the child's parents, among others, must be invited (Regulation 20(1)). The local authority must ask the head teacher of the school to prepare a report setting out his or her recommendations for any amendments to the EHC plan and referring to any difference between those and the recommendations of others attending the meeting (Regulation 20(8)). That report must be sent out 'within two weeks of the review meeting' (Regulation 20(9)). The local authority must then decide whether it wants to amend the EHC plan and must notify the parent 'within four weeks of the review meeting' (Regulation 20(10)).
"10. Regulation 22 is headed 'Amending an EHC plan following a review'. A local authority which is 'considering amending an EHC plan' must comply with the obligations listed in Regulation 22(1). Where a local authority is 'considering amending an EHC plan' it must send the child's parent a copy of the EHC plan with 'a notice specifying the proposed amendments…' (Regulation 22(2)(a)) and give them at least 15 days in which to make representations on the draft plan (Regulation 22(2)(c)). Where a local authority 'decides to amend the EHC plan' after representations from the child's parent, it must send 'the finalised' EHC plan to the child's parent 'as soon as practicable, and in any event, within 8 weeks of' the date when the local authority sent a copy of the EHC plan in accordance with Regulation 22(2)(a) (Regulation 22(3))."
Reg. 20 Review where the child or young person attends a school or other institution
"(ZA) This regulation applies where a local authority carry out a review of an EHC plan and the child or young person concerned attends a school or other institution.
(1) As part of a review of a child or young person's EHC plan, the local authority must ensure a meeting to review that the EHC plan is held and in the case of a child or young person attending a school referred to in paragraph (12), can require the head teacher or principal of the school to arrange and hold that meeting.
(2) The following persons must be invited to attend the review meeting–
(a) the child's parent or the young person;
(b) the provider of the relevant early years education or the head teacher or principal of the school, post-16 or other institution attended by the child or young person;
(c) an officer of the authority who exercises the local authority's education functions in relation to children and young people with special educational needs;
(d) a health care professional identified by the responsible commissioning body to provide advice about health care provision in relation to the child or young person;
(e) an officer of the authority who exercises the local authority's social services functions in relation to children and young people with special educational needs.
(3) At least two weeks' notice of the date of the meeting must be given.
(4) The person arranging the review meeting must obtain advice and information about the child or young person from the persons referred to in paragraph (2) and must circulate it to those persons at least two weeks in advance of the review meeting…
…
(7) Where the child or young person attends a school referred to in paragraph (12), the local authority must ask the head teacher or principal of the school to prepare a written report on the child or young person, setting out that person's recommendations on any amendments to be made to the EHC plan, and referring to any difference between those recommendations and recommendations of others attending the meeting.
(8) Where the child or young person does not attend a school referred to in paragraph (12), the local authority must prepare a written report on the child or young person, setting out its recommendations on any amendments to be made to the EHC plan, and referring to any difference between those recommendations and recommendations of others attending the meeting.
(9) The written report must include advice and information about the child or young person obtained in accordance with paragraph (4) and must be prepared within two weeks of the review meeting and sent to everyone referred to in paragraph (2).
(10) The local authority must then decide whether it proposes to –
(a) continue to maintain the EHC plan in its current form;
(b) amend it; or
(c) cease to maintain it,
and must notify the child's parent or the young person and the person referred to in paragraph (2)(b) within four weeks of the review meeting.
(11) If the local authority proposes to continue or to cease to maintain the child or young person's EHC plan, it must also notify the child's parent or the young person of [their right to appeal].
(12) Schools referred to in this paragraph are –
(a) maintained schools;
(b) maintained nursery schools;
(c) Academy schools;
(d) alternative provision Academies;
(e) pupil referral units;
(f) non-maintained special schools;
(g) independent educational institutions approved under section 41 of [the Children and Families Act 2014].
…
"Reg. 22 Amending an EHC plan following a review
…
(2) Where the local authority is considering amending an EHC plan following a review it must –
(a) send the child's parent or the young person a copy of the EHC plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments…
…
(3) Where the local authority decides to amend the EHC plan following representations from the child's parent or the young person, it must send the finalised EHC plan to –
(a) the child's parent or to the young person…
...
as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan in accordance with paragraph (2)(a)…
…
(5) When sending a finalised EHC plan to child's parent or young person in accordance with paragraph (3) … the local authority must also notify them of
(a) ...their right to appeal..."
"9.176 … Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the parent or the young person and the school or other institution attended… If the plan needs to be amended, the local authority should start the process of amendment without delay (see paragraph 9.193 onwards) …
"9.193 This section applies to amendments to an existing EHC plan following a review, or at any other time a local authority proposes to amend an EHC plan other than as part of a reassessment. EHC plans are not expected to be amended on a very frequent basis. However, an EHC plan may need to be amended at other times where, for example, there are changes in health or social care provision resulting from minor or specific changes in the child or young person's circumstances, but where a full review or re-assessment is not necessary.
"9.194 Where the local authority proposes to amend an EHC plan, it must send the child's parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child's parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.
"9.195 The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan, in accordance with paragraphs 9.78 to 9.94 of this chapter.
"9.196 Following representations from the child's parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child's parent or the young person, explaining why, within the same time limit.
"9.197 When the EHC plan is amended, the new plan should state that it is an amended version of the EHC plan and the date on which it was amended, as well as the date of the original plan. Additional advice and information, such as the minutes of a review meeting and accompanying reports which contributed to the decision to amend the plan, should be appended in the same way as advice received during the original EHC needs assessment. The amended EHC plan should make clear which parts have been amended. Where an EHC plan is amended, the following review must be held within 12 months of the date of issue of the original EHC plan or previous review (not 12 months from the date the amended EHC plan is issued).
"9.198 When sending the final amended EHC plan, the local authority must notify the child's parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services."
i) everything continues as before and the EHC plan continues unchanged
ii) the EHC plan continues but is amended
iii) the EHC plan ceases.
"If, at any time, a local authority proposes to amend an EHC plan it shall proceed as if the proposed amendment were an amendment proposed after a review."
THE ARGUMENTS
"28. Amending an EHC plan without a review or reassessment.
If, at any time, a local authority proposes to amend an EHC plan, it shall proceed as if the proposed amendment were an amendment proposed after a review."
CONSIDERATION
"20(10) the local authority must then decide whether it proposes to:
(a) continue to support the EHC plan in its current form;
(b) amend it; or
(c) cease to maintain it,
and must notify the child's parents or the young person and the person referred to in paragraph (2)(b) within four weeks of the review meeting."
"the local authority must then decide whether it proposes to… [and each option is then set out]… and must then notify [as is appropriate for each case] the child's parent or the young person… within four weeks of the review meeting."
"61. Were the 2012 Regulations primary legislation, the interpretive exercise would have to proceed on the assumption that Parliament is all-knowing and infallible, and that they can only be viewed as an entirely coherent entity without any internal inconsistencies. No doubt secondary legislation aspires to like standards, but in my view the same assumption does not have to be made. Inconsistencies and anomalies may exist. It is often a question of the lesser of two evils."
SUMMARY OF CONCLUSIONS