Summary: Wokingham Borough Council had not sufficiently engaged with Swalcliffe Park School, a residential school for children with autistic spectrum disorder before naming it as the appropriate placement for a 16-year-old boy in his education, health, and care plan, effectively forcing the school to take the boy. The High Court told Wokingham Borough Council to retake the decision as its duty to consult required proactive engagement and this had not been met.
Background
XYZ was a 16-year-old boy with special educational needs, arising in particular from Autistic Spectrum Disorder (ASD) and a developmental language disorder. In January 2020 the local authority, Wokingham Borough Council issued a draft EHC plan for XYZ in which it named a specific mainstream school “until a special school is secured.” PQR, the mother of XYZ, then began an appeal to the SEN Tribunal.
PQR and the Local Authority approached Swalcliffe Park School (the school), a residential special school and sent it a copy of the EHC plan. The special school considered itself unsuitable for XYZ due to the nature and severity of his behaviours being “not compatible with our student population“. However, PQR did not give up and sent the school further information. In September 2021 XYZ had a three-day residential trial at the school after which the school decided not to offer him a place, concluding it was not suitable for him.
The school told the Local Authority’s solicitors, referring to the Children and Families Act 2014 Pt 3 s.39(4)(b)(i) that the impact on other students had been a significant factor in the decision not to offer XYZ a place and that his “attendance would be incompatible with the provision of efficient education for others“.
The Local Authority solicitors responded that the school was PQR’s sole preferred school and that they felt the information provided by the school was not sufficient to evidence any of the legal grounds for them to refuse to name it in the EHC plan. As such, it did not have a legal basis to continue defending the appeal before the tribunal. The Local Authority had therefore decided to name the school in the EHC plan as the placement for XYZ from January 2022. A draft consent order was agreed between the Local Authority and PQR and submitted to the tribunal.
The school said that the decision to name it was neither “rational nor founded on evidence”, and stating that, if the local authority proceeded to name it, it would take further advice to challenge the decision and have the EHC plan declared invalid.
In February 2022 the school’s solicitor wrote to the tribunal asking it to set aside the consent order setting out its case that section 39(4) in both limbs ought to have been considered to have applied.
Subsection 39(4) applies where—
- the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
- the attendance of the child or young person at the requested school or other institution would be incompatible with (i) the provision of efficient education for others, or (ii) the efficient use of resources.
The tribunal declined this and made an order to name the school in section I of the EHC plan. The school did not admit XYZ to the school, and the Local Authority made other provision for XYZ’s education, including online tuition. PQR said that the arrangement was not meeting XYZ’s needs.
The school submitted that the local authority had failed to:
- provide requisite information for consultation,
- conscientiously consider the school’s response to the consultation,
- make a decision which was rational (as it lacked an evidential basis),
- consider the school’s safeguarding duties,
- inform the tribunal of the school’s opposition to the placement.
Discussion
The court considered the test in section 39(4)(b)(i) which was not whether the attendance of the child at the nominated school would have some adverse impact on the efficient education of other children attending it, but whether any such impact would be “so great as to be incompatible with the provision of efficient education” for others (per Stadlen J in R (Hampshire CC) v SENDIST [2009] EWHC 626. In NA v London Borough of Barnet [2010] UKUT 180 (AAC). Upper Tribunal Judge Mesher said that the concept of efficient education indicates:
“…not the very highest desirable standard or the very basic minimum but something in between that […..] although ‘incompatible’ is indeed a very strong word, indicating that there is no way of avoiding the admission of the single child involved reducing the quality of provided to some other children with whom he would be educated below that standard, its force must be applied in the context of that standard.”
The court found that there was no material breach of the duty to consult. This was on the basis that the school had previously received the full EHC plan and medical reports giving additional diagnoses, its specialist had interviewed XYZ, it had had the experience of the three-day trial, and had the assessment of its own multi-disciplinary team R. (on the application of Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 W.L.R. 3947, [2014] 10 WLUK 872 had been followed and R. v Brent LBC Ex p. Gunning 84 L.G.R. 168, [1985] 4 WLUK 200 considered.
Considering the irrationality of the decision Auerbach J said: “This challenge faces the high hurdle of Wednesbury unreasonableness. It does not, in my judgment, surmount it.” The Local Authority did not rely solely on the school’s report and assessment arising from the three-day visit but had other material to draw upon that was specific to XYZ, arising from its lengthy engagement with him, his mother and expert opinion. The Local Authority did not doubt the school’s account of concerning incidents but disagreed as to their seriousness and manageability of them. That was an evaluative question of judgment, and the Local Authority was not bound to agree with the school or accept that no steps could reasonably have been taken to address concerns. The fact that the school considered that a different type of placement would work better did not mean that it was not itself an appropriate placement. The Local Authority had also considered the safeguarding duty and therefore these strands of challenge did not succeed.
In relation to the allegation of failing conscientiously to consider the school’s response it was observed that the school’s concern about XYZ’s behaviours and interactions with peers had been a consistent theme in communications.
The Local Authority said that concerns could be resolved through reasonable adjustments and by providing information and education to other students. However, it did not explain what those adjustments might be or how they might be put into effect, and it did not invite any response from the school. Consultation was a process of dialogue, but the Local Authority had not adopted that approach. In terms of reasonable adjustments and information to other students the Local Authority should have given some indication of what that might be, so that the school could respond. Auerbach J said that the consultation duty required “further proactive engagement before the decision was taken” and there was no evidence to explain why that had not happened. It was therefore held that the requisite standard of conscientious consideration had not been met before the decision was taken.
Auerbach J said he did not agree that this meant that the challenge to the Local Authority’s decision must fail. He said: “While the tribunal was not wrong, as such, to grant the consent order, [….] the local authority’s decision to seek the [consent] order, in the circumstances and at the point when it did, was itself wrong; and the order was a necessary part of the mechanism of implementation of that decision.”
He therefore granted the application for judicial review in respect of the Local Authority’s decision to name the school and quashed it, meaning that the parties must pick up and complete the consultation process and that the decision as to whether or not to name the school then needed to be taken afresh.
CASCAIDr Comment: The issue at the heart of this case is not just special educational needs but is about the duty to consult and importantly, what actually constitutes consultation. The High Court found that although there had been consultation, in that information had been provided and a response given, in order to fulfil the consultation duty further proactive engagement before the decision was taken was required, with consultation being described as “a process of dialogue” that in this case the Local Authority had failed to adopt. Of course, from that point onwards it is irrelevant whether the end decision is right or wrong as the process used to make it was flawed.
What is also interesting here is that because the SEN tribunal appeal was instigated by PQR to appeal the Local Authority’s decision about naming a placement, the school’s involvement would only ever have been providing evidence should a hearing have gone ahead. The school was never a ‘party’ to that appeal. As such, when the Local Authority and PQR then reached agreement on naming the school in the EHC plan the Tribunal were able to issue a consent order to do this and set aside the hearing as both parties were now in agreement. This had the effectively forced the school to accept the boy. Had it not been the case that consent was reached on the issue the subsequent SEN tribunal would undoubtedly have had to deal with the question of suitability within the appeal hearing, as the school would have introduced this as an issue.
Auerbach J was clear that, based on the information before it, the first tier Tribunal was quite entitled to issue the consent order, but the prior failure on the part of the Local Authority in its “conscientious consideration” of the issue meant it was wrong to have applied for the consent order at the time did. Hence the consent order was quashed.
Wednesbury unreasonableness is a standard of unreasonableness used when assessing an application for judicial review of a public authority’s decision. A decision is Wednesbury unreasonable (or irrational) if it is “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). It is a stricter test than showing that a decision was merely unreasonable.