R L (by her litigation friend N) v Devon County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lady Justice Elisabeth Laing DBE,Lord Justice Peter Jackson |
| Judgment Date | 16 March 2021 |
| Neutral Citation | [2021] EWCA Civ 358 |
| Date | 16 March 2021 |
| Docket Number | Case No: C1/2020/1469 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 358
Lord Justice Peter Jackson
Lord Justice Haddon-Cave
and
Lady Justice Elisabeth Laing
Case No: C1/2020/1469
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Allan Gore QC
CO/1307/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Broach and Ms Irving (instructed by Watkins Solicitors) for the Appellant
Mr Anderson (instructed by the County Solicitor) for the Respondent
Hearing dates: 23 February 2021
Approved Judgment
Introduction
These applications for judicial review raised what HHJ Allan Gore QC, sitting as a Judge of the High Court (‘the Judge’) described as a ‘short point’ of statutory construction about the timetable for producing amended education health and care plans (‘EHC plans’). On 15 May 2020 Eady J gave permission to apply for judicial review on the papers. She rejected an argument that permission should be refused because the claims were academic. Having heard full argument at the hearing on the construction point, the Judge nevertheless declined to decide it, on the grounds that the claims were academic. The question at the heart of this appeal is whether he was right to do so.
On this appeal, the parties are represented as they were below. The Appellants (‘the As’) were represented by Mr Broach and Ms Irving, and the respondent local authority (‘R’) by Mr Anderson. We thank counsel for their written and oral submissions.
The grounds of appeal raised three issues.
i. The As accept that, in principle, it was open to the Judge to revisit the question of whether or not the claims were academic (and its implications), despite Eady J's view, at the permission stage, that the claims were not academic. The As submit that, on the facts of this case, however, the Judge should not have reconsidered that question and its implications.
ii. If the Judge was entitled to reconsider the question and its implications, the next issue is whether the Judge was wrong to consider that the claims were academic.
iii. The last issue is whether, if the Judge was right to decide that the claims were academic, he erred in principle in refusing to exercise his discretion to decide them.
The legal framework
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)).
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.
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)).
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)).
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.
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)).
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)).
The background to the claims
In L's case, there was a review meeting on 2 December 2019. On 5 February 2020, L's solicitors sent a pre-action protocol letter. They asked for a notice under regulation 22(2)(a), and the proposed amendments. On 6 February, R gave the regulation 22(2)(a) notice. On 10 February 2020, R said it would provide the proposed amendments by 2 March 2020. R said that its only obligation was to issue the final amended EHC plan within eight weeks of the regulation 22(2)(a) notice. On 2 March 2020, L's solicitors sent a further pre-action protocol letter, asking for the proposed amendments. R sent those on 3 March 2020. On 12 March, L's solicitors asked R to issue the final EHC plan by 16 March 2020. On 17 March, R replied that it had eight weeks from 6 February to issue the final EHC plan. On 19 March, L's solicitors sent a pre-action protocol letter, asking for the final EHC plan to be issued. R replied on 20 March that it was trying to issue the final EHC plan within 8 weeks of 6 February. The claim was issued on 5 April 2020. R issued the final amended EHC plan on 17 April 2020. L appealed against it on 15 May 2020.
The sequence of events in M's case is similar. There was a review meeting on 29 October 2019. On 23 January 2020, M's solicitors asked for the amended EHC plan to be provided within 14 days. On 6 February, R issued a regulation 22(2)(a) notice. On 10 February, R said that it would provide the proposed amendments by 2 March, asserting that its only obligation was to issue the final amended plan within 8 weeks of the regulation 22(2)(a) notice. On 3 February, R issued the proposed amendments. On 23 March 2020, M's solicitors asked for the final EHC plan to be issued by 27 March. On 27 March, R said that it was trying to issue the final EHC plan within 8 weeks of the regulation 22(2)(a) notice. The claim was issued on 5 April. R issued the final EHC plan on 15 April 2020. M appealed against it on 1 May 2020.
P's case is somewhat different. The review meeting was on 11 October 2019. On 15 February 2020, R issued a final amended EHC plan by mistake. P challenged that on 12 March, because R had not consulted (contrary to the obligation imposed by section 44(6) of the Act). That letter was followed by a pre-action protocol letter on 26 March 2020. R issued a regulation 22(2)(a) notice on 2 April 2020. On 3 April, R apologised for the delay. It said that it would try to issue the amended EHC plan ‘in accordance with regulation 22(3)’ within eight weeks of the regulation 22(2)(a) notice. On 8 April 2010, P's solicitors applied for Ps' case to be joined with the claims of L and M. R issued the proposed amendments on 17 April, and the final amended EHC plan on 14 May 2020.
The nature of the claims
The claim form challenged ‘decisions communicated in pre-action correspondence on 20 and 27 March 2020 to the effect that amended EHC plans for two L and M would not be issued until 28 April 2020’. As is apparent from my summary of the facts, R had sent those two letters in response to pre-action protocol letters from the solicitors who were acting for L and M. The relief sought in the claim form was declarations, quashing orders, particularly of the decisions of 20 and 27 March 2020, and a mandatory order requiring R to issue and send final EHC plans no more than two working days from the date of the order.
The grounds of claim made clear that, as well as those decisions, L and M were challenging both the overall delay in the issue of their EHC plans, and the components of that delay. One component of the delay flowed from R's contention that it was permitted to wait for eight weeks after the date when it notified L and M that it...
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