R L (by her litigation friend N) v Devon County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 08 March 2022 |
| Neutral Citation | [2022] EWHC 493 (Admin) |
| Docket Number | Case No: CO13072020 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 493 (Admin)
THE HONOURABLE Mrs Justice Foster DBE
Case No: CO13072020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Stephen Broach and Alice Irving (instructed by Watkins Solicitors) for the Claimants
Jack Anderson (instructed by Devon County Council Legal Dept) for the Defendant
Hearing date: 30 April 2021
Approved Judgment
INTRODUCTION
L, M and P are all children in respect of whom the Defendant local authority has have prepared and maintained Education Health and Care plans (“EHC plans”) pursuant to their obligations under the Children and Families Act 2014 (“the Act”) and the Special Educational Needs and Disability Regulations 2014/1530 (“the Regulations”) made thereunder.
Although in respect of the cases before the court, the individual matters had already been resolved, a decision on the point of statutory interpretation arising was directed to be heard by the Court of Appeal who reversed the previous trial judge's decision to the effect that the issue was academic and ought not to be determined.
In broad terms, EHC plans are the mechanism by which children and young people up to the age of 25 years who have special educational needs and/or disabilities, have them appropriately met by provision secured by the local authority. The authority has responsibility for monitoring the special education provision secured, including an annual review, and future planning for each EHC plan. Statutory guidance for local authorities, schools and colleges is set out in the Special Educational Needs and Disability Code of Practice: 0 to 25 years (“the Code”).
It is common ground that a strict timetable exists for many of the steps taken in respect of special educational provision under the EHC plans process, and this case concerns the question of whether there is also a fixed timeframe in respect of steps in the amendment of a plan where a local authority accepts amendment is necessary, during the compulsory statutory annual review.
The Claimants argue that necessarily, as an annual review feature, an overarching time frame does exist, and that within 12 weeks of the annual review meeting, properly read, the statutory scheme requires a local authority to issue a final amended EHC plan. This is an important step because the issue of the final amended plan triggers a right to contest provision under the plan on appeal. The Statutory Appeal Tribunal exercises a de novo jurisdiction and will decide the suitability of provision for itself if provision is appealed. The decisions made affect which school is to be attended and what provision is made for children who may require significant specialist input for their welfare. Delays, and the local authority's interpretation of the time provisions, mean an issue may not get before a Tribunal in time for the new academic year. The Claimants argue there is an imperative to accomplish all the steps in the amendment process as soon as possible in the best interests of the child or young person in question. The Defendant, by contrast, argues the Regulations impose no express time-limit for this part of the plan process, accordingly, the law will read in only a reasonable time in which to accomplish the statutory obligation, and that will lawfully protect the relevant interests.
In the cases of L, M and P, there were what the Claimants' representatives submit were indefensible delays by the Defendant, particularly in respect of the finalisation of amended plans for the Claimants. The facts of the individual cases are set out in more detail at paragraph 16 to 18 below. In summary, the Claimants allege that the Defendant significantly breached a time limit of four weeks from the statutory review meeting for sending a notice confirming its proposals for amending their EHC plans. It took nine weeks for the defendant to provide requisite notification under the Regulations to L, fourteen weeks in respect of M and twenty-five weeks in respect of P. Following this notification, the Defendant stipulated that an eight week time-limit from the date of sending the proposed amendments applied for the production of the finalised EHC plan thereafter. Mr Stephen Broach for the Claimants submitted with some force that delays are wholly undesirable in the context of education provision for persons with special needs. The children and young people necessarily are changing and developing rapidly and require appropriate provision to be made through time. He cites a significant impact upon the Claimants in this case. The delays in amending in turn delayed the ability of the Claimants' parents to appeal to the Tribunal to challenge deficiencies they saw in the finalised plans. The delay was said to have caused the parents of P to wait for the next annual review to seek to improve the plan for P, since it was too late to appeal effectively.
Mr Jack Anderson for the Defendant points to what he argues is the clear wording of the Regulations, in what he says is the operative provision, there is no express time limit, nor can one be read into the relevant part of the instrument.
The history of the case is unusual in that, although the substantive issue has not before been decided, the matter has been before the Administrative Court and before the Court of Appeal. Permission for the claim to proceed had been granted on two Grounds, only one of which is now in issue. By order of 7 August 2020 the Administrative Court dismissed them on the basis they were academic, since the delay in completing the statutory processes had ended and the court declined to reach a decision on the point of construction. The Claimants appealed that decision and on 16 March 2021, the Court of Appeal (Jackson LJ, Haddon-Cave LJ and Laing LJ) allowed the appeal, remitting the matter back to the Administrative Court for substantive determination of the issue of statutory construction in light of its importance to the practical operation of the scheme.
This is that substantive determination.
The Claimants' case is that the Regulations governing the process of amendment on review must be read as requiring the proposed amendments to be sent along with the local authority's statutory decision that an amendment is proposed. They argue in their written materials that accepted canons of statutory construction allow, indeed would compel, the court to give that reading to the provisions. They rely on a range of arguments including the terms of both the enabling domestic legislation and the provisions of international treaties to the effect that words may be read into the Regulations in order to achieve the outcome which they say Parliament must, in this sensitive context, have intended. Absent such robust confirmation, a local authority operates without time limits which protect the children and young people who are beneficiaries of the EHC plan scheme.
The Defendant's case is that a local authority must notify a child's parents within four weeks of an annual review meeting of their intention to propose amendments (stage 1), but the specific amendments will be notified only subsequently (stage 2). No specified time constraint applies to stage 2 of the process. Further, the subsequent issue of the finalised EHC plan (Stage 3), will take place as soon as practicable, and, in any event, within 8 weeks of sending the parents the proposed amendments under stage 2. The timing of the final issue of the plan depends (on their reading), upon when they have given effect to stage 2.
Since on the Defendant's case there is no timing requirement for sending the proposed amendments to the parents under stage 2, this has the effect says Mr Broach, that there is no specific timeframe by reference to the annual review meeting, within which a local authority must issue the final amended EHC plan following such a review meeting. The timeframe thus remains in the control of the local authority.
In a nutshell, the Defendant contends that it is not possible to read into the Regulations the meaning attributed by the Claimant through any recognised canon of construction or other legal imperative. Had the draughtsman intended a time limit of the kind argued for by the Claimants, he or she could have inserted one. Nothing of the nature of that relied upon appears in the relevant wording, whereas it does appear in respect of other aspects of the plan process. The Defendant says there is no risk of injustice, nor a risk that the purpose of the enabling statute will be frustrated by adhering to the plain meaning of the wording. The timeframe for this part of the process, namely the production of the proposed amendments to the EHC plan, is governed by the requirements of reasonableness at common law. A concern about timing and delay may be given effect to in the usual way by an application for judicial review.
The Claimants argue such an analysis would allow a defendant in the position of Devon County Council, to plead that its resource position was relevant to a challenge based upon failure to act “as soon as reasonably practicable”, and that cannot be right in the current context in which there is a strong imperative for speedy resolution at all stages.
THE INDIVIDUAL CLAIMS
The factual background to each of these cases is stark in terms of the chronology of each of the Claimants' experience. Given the emphasis on time limits within the Regulations, although the individual cases have been resolved, and as Mr Anderson notes, this is not a generalised challenge in respect of delay, it is...
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