School brings landmark judicial review against Medway Council

We have recently acted for a school that was forced to bring a Judicial Review of its own local authority, Medway.

This case was brought by the school purely because it had clear, evidenced, concerns that it was not able to support a young person’s education or welfare.   

Background

The young person had moved to Medway in spring 2018 and had brought with him an Education, Health and Care Plan (EHCP) that had been prepared by Greenwich Council. The Greenwich EHCP detailed a high level of specialist intervention for the young person, including access to sensory room and an appropriate peer group. The school were clear that they could not deliver the support detailed in the Greenwich EHCP.

The school in question, that cannot be named, approached us after months of discussions with Medway Council about the possibility of admitting the young person who has severe ASD, associated sensory difficulties and social communication needs. 

The school in question, who were acting in the best interests of the young person, had explained to Medway Council that they had serious concerns about their ability to provide the young person with a suitable curriculum and to even keep him safe.

Of particular importance, the young person required peers who were able to communicate with him at his level and could use Picture Exchange System (PECS) and British Sign Language (BSL). The young person also required access to a sensory room and to teaching staff who are able to deliver a P-level curriculum.

The school, having read the Greenwich EHCP, informed Medway that it was unable to provide the young person with the support that he required. Six reasons were given:

1. No staff were trained or experienced in the use of BSL, PECS or catering for pupils with severe autism.
2. The relevant young person was functioning at a very low level in terms of his communication skills and Medway did not seem to have provided any provision for that.
3. The young person needed, and previously had access to, a sensory room. The school in Medway did not have a sensory room and could not build one as there was no space to do so. 
4. The school had never catered for a pupil at the P-level scale. Further, the school was a junior school and, therefore, had a starting age of 7. The P-level curriculum would be considerably below that followed by every other pupil at the school.
5. The young person would not have access to an appropriate peer group at the school.
6. The school had genuine concerns for the personal safety of the young person given that it was noted that he had a propensity to have meltdowns and staff at the school were neither trained nor experienced in catering for such need.

In response to the concerns raised by the school, Medway Council took the extraordinary decision to edit the Greenwich EHCP to effectively remove all specified provision. Further, during a telephone conversation with the SENCO at the school, an SEN Officer made clear that the Local Authority could simply “make” the EHCP fit a mainstream school.

It is unclear what the young person’s parents’ views were during this process. Of course, the school engaged with the parents and explained the serious concerns for his welfare. Despite this, it appears that communications between the Local Authority and the parent may have happened separately and, as a result, the Local Authority maintained a stance that the school had to admit the young person. It is not clear what the Local Authority were telling the parents. 

The school, during summer 2018, sought to involve the Secretary of State for Education. The Secretary of State has a general power further to the Education Act 1996 to intervene in a situation where a school has concerns about a Local Authority’s decision. In this instance, the Secretary of State, via the ESFA, refused to intervene.

Despite discussions taking place over a period of several months, Medway Council did not get around to issuing a Final EHCP until 5 September 2018. That EHCP catered for practically no special educational provision for the young person and named the school. This was despite all of the abundant information that the school had provided in respect of its suitability. Medway had further ignored the request for any funding that the school had made. 

In respect of funding, the school had provided a detailed breakdown of around £40,000 worth of support that it felt was needed. This was purely to keep the young man safe at the school. This support was calculated on the basis of the Greenwich EHCP, because the Medway EHCP catered for practically nothing. Rather cynically, Medway later sought to criticise the school for the lack of clarity in respect of the calculation of its costs. This point is particularly criticised by the Judge in the High Court Judgment.

Having been left with no option, the school instructed HCB Solicitors.

Proceedings
On instruction, HCB Solicitors wrote to the young person’s parents, Medway Council and the Secretary of State to highlight that it seemed that the EHCP had been rewritten without any adequate reassessment. Further, it seemed that the Local Authority had misunderstood its duties to name a mainstream school in the young person’s EHCP.

The young person’s parents did not respond at any point. The Secretary of State took a neutral position.

Medway replied in a remarkably dismissive fashion, indicating that the school should simply comply with what it had been told to do.  In terms of the changes to the EHCP, Medway claimed that it was entitled to make changes that it saw fit notwithstanding the lack of any expert advice. Indeed, Medway went on to argue that the Greenwich EHCP was written without any evidence and, therefore, Medway was at complete liberty to strip out any provision that it felt lacked evidence.  

Despite months of ongoing negotiation, requests for additional funding and extensive explanation from the school that it was not suitable for the young person, Medway bizarrely continued to oppose the position. As a result, the school was left with no option but to make an application for judicial review. That application was made on 5 December 2018, with a rolled up hearing taking place on 23 and 24 January 2019.

Judgment

The Judgment from the High Court was released on 4 February 2019. It can be found here.

The Judgment is remarkably critical of Medway Council. Two major points were made by the Court:

1. That Medway had unlawfully “eviscerated” the special educational provision set out within the Greenwich plans;
2. The lack of a properly constructed Section F of the EHCP meant that it was impossible to engage in any proper consultation with the school to enable a decision as regards suitability.

What this Judgment means

The Judgment makes clear that the Local Authority in this case, Medway, entirely misled itself in respect of its duties to provide a mainstream education and its powers to amend an EHCP. 

The general presumption for mainstream education only arises once a Local Authority determines that the particular school the parents request is unsuitable.  This is where Medway went into error because it felt that the mainstream presumption was an overriding duty rather than a backstop position.

What this Judgment very helpfully explains is that where parents express a preference for a particular mainstream school, the Local Authority must properly and carefully assess suitability. If that school is not suitable, the duty to provide a mainstream school then engages. However, the duty is not to provide the particular mainstream school the parents have requested, but rather to find an “appropriate” mainstream school.
The method by which Local Authorities need to find an “appropriate” mainstream school is suggested in the Judgment as being drawing together a pool of the mainstream schools and to consider the steps that would need to be made in order to facilitate those schools being “appropriate”.
In respect of the content of an EHCP, this Judgment very helpfully highlights that where a young person moves from one Local Authority to another, there is clearly a presumption that that EHCP, and the provision within it, should be upheld by the new Local Authority. Of course, the new Local Authority is perfectly at liberty to undertake a reassessment and, in light of that reassessment, rewrite the EHCP. What the new Local Authority is clearly not entitled to do, which Medway thought it was entitled to do, is to rewrite the EHCP in order to suit its own purposes. It sounds obvious that this is unlawful, however, that was clearly what Medway thought that it was entitled to do which is why it faced such difficulty in this decision.

Conclusions

This case should never have happened. It took the fortitude of the school and the intervention of the High Court to make Medway Council understand its legal duties.

Ultimately, this matter will have significant implications for Medway in particular because it will now have to pay its own costs and the school’s costs for bringing this judicial review. 

Had Medway, at any point, properly considered this case it simply would not have got this far. The school, and HCB Solicitors, repeatedly highlighted to Medway that there was a young person at the centre of this issue that required suitable provision. That was the only reason this judicial review was brought; the placement was not suitable for the young person. Had Medway properly considered the evidence, the young person could have been given the provision he needed far sooner.  

More broadly, this is a very important case for schools that consider the Local Authority are simply editing an EHCP in order to force a placement. For families, it helpfully explains the Local Authority’s duties in respect of the presumption for mainstream education, but also explains what a Local Authority can and cannot do on the adoption of an EHCP.

All that can be hoped is that Medway will now properly assess the young person, gather an accurate understanding of his needs and provision and make a suitable placement available for him. That is all the school, and HCB, ever wanted to achieve for the young person, and hopefully that will now happen.

If you are facing any issues similar to that contained within the Judgment or the above, please contact our specialist education solicitors on 0333 202 7175.