R ZK by her mother and Litigation Friend HK v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] EWHC 1450 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3720/2017 |
| Date | 10 June 2019 |
[2019] EWHC 1450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/3720/2017
Stephen Broach and Ciar McAndrew (instructed by Anthony Gold Solicitors) for the Claimant
Deok—Joo Rhee QC and Tom Tabori (instructed by London Borough of Redbridge) for the Defendant
Hearing dates: 23/01/2019 – 24/01/2019
APPROVED JUDGMENT
A. Introduction
The Claimant is 12 years old. She brings these proceedings by her mother who is her litigation friend. The Claimant is totally blind as a result of a brain tumour; she is also partially deaf, in consequence of the same tumour. She is now in her first year of secondary education in Redbridge, having transferred from primary school at the beginning of the 2018–2019 academic year. Her secondary school is a mainstream school.
Since 2017 the Claimant has been the subject of an Education Health and Care Plan (EHCP) which includes a statement of her special educational needs. The most recent version of the EHCP is dated 13 th September 2018 and includes revisions to the plan required by a decision of the First-tier Tribunal, Special Educational Needs and Disability made on 16 th May 2018. EHCPs are reviewed every 12 months. The Claimant's EHCP was due for review in March 2019.
The EHCP describes the Claimant as being within the average to higher / above average range for intellectual ability; her English and Maths skills are age appropriate; and she is making good progress learning Grade 2 Unified English Braille (UEB). The EHCP also records that she is learning to touch type on a Perkins Brailler which is a form of typewriter. Section F of the EHCP specifies the special education provision that must be made for the Claimant. This part of the EHCP is very detailed; it identifies the specific needs that the Claimant has in relation to her education and day to day school activities; and also identifies the resources that need to be provided to enable those needs to be met. These needs are identified by reference to outcomes which are to be achieved by the end of Key Stage 3 (i.e. Year 9, which for the Claimant will be the 2020–21 academic year).
The support is to be provided to the Claimant at the mainstream school she attends in Redbridge. This includes in-class learning support assistance from a teaching assistant, and support from a QTVI teacher (i.e., a teacher qualified to teach children and young people with visual impairment). The requirement in the EHCP is that a QTVI teacher be available to provide advice to the Claimant's teachers and teaching assistants for 13 hours each week. Section F of the EHCP requires 32 1/2 hours support each week from one full-time teaching assistant, and with effect from September 2018 (i.e. on the Claimant's transfer to secondary education) has further required an additional 25 hours per week support from a second teaching assistant to allow Braille resources to be prepared for the Claimant in advance of lessons. The teaching assistants must be trained in contracted UEB. Contracted Braille is the Grade 2 UEB code, which is materially different from the Uncontracted, Grade 1 code. The teaching assistants must also be able to support teaching in Braille in the so-called STEM subjects, i.e. science, technology, engineering and mathematics.
B. The Claimant's challenge
The challenge in these proceedings is not directed to the specific provision made for the Claimant; it is not a challenge about compliance with the requirements arising from her EHCP. Compliance with the EHCP is secured through a series of specific legal obligations: by section 37 of the Children and Families Act 2014 a local authority is obliged to maintain a EHCP that has been made; by section 42 of the 2014 Act it is required to secure for the child the education provision specified in the EHCP. Rather, the Claimant's challenge is directed to a generic matter, namely the arrangements made by Redbridge when it is necessary to provide specialist teaching assistants for pupils in mainstream schools who need a high level of special needs support. The Claimant is such a pupil.
The arguments in this case have been made by reference to the position of pupils in mainstream schools who, like the Claimant, have a severe visual impairment – for the purposes of this judgment “VI pupils”. Such pupils typically need support from specialist teaching assistants, who are in turn, supported by QTVI teachers. Under the arrangements Redbridge has in place, Redbridge does not itself either employ the QTVI teachers, or employ or train the teaching assistants who work with VI pupils in mainstream schools. The teaching assistants are employed by the schools in which they work; Redbridge contracts with a specialist provider, the Joseph Clarke Educational Service – “JCES”, to provide the services of QTVI teachers, and to train the specialist teaching assistants. The Claimant describes these arrangements as a “decentralised model”. The Claimant's case is that the “decentralised model” has various limitations with the consequence that it is inherently unlawful, and at odds with Redbridge's compliance with statutory obligations owed to pupils with special educational needs who are the subject of an EHCP.
The Claimant contrasts the arrangements Redbridge has put in place with a situation where a local authority directly employs a pool of ready trained specialist teaching assistants, and also QTVI teachers, so that the teaching assistants are ready to be deployed into any mainstream school due to receive a VI pupil. The Claimant has provided evidence from Vic Gibson, who is a QTVI who, until his retirement in 2016, worked for Peterborough City Council. Peterborough had a “Sensory Support Service” which employed a number of QTVIs and specialist teaching assistants. Most worked in the “Secondary and Primary Base” – which Mr Gibson explains were schools which VI pupils were encouraged to attend. Mr Gibson also explains that when VI pupils chose not to attend those schools the Sensory Support Service provided an outreach service to the schools which they did attend. The Claimant contends that Redbridge should adopt this or some other type of “centralised model”. The Claimant's case is that if a centralised model was in place, when a VI pupil moved from one mainstream school to another, a suitably trained teaching assistant could be deployed to the new school straight away. It appears that a number of local authorities do have centralised arrangements – in the sense that they employ specialist teaching assistants (there is no further information as to how those authorities organise their arrangements). But many local authorities do not, and instead have arrangements along the lines of those put in place by Redbridge. Figures published in 2015 by the RNIB, gathered from Freedom of Information Act requests directed to local authorities, indicated that 45% of local authorities did not themselves employ the teaching assistants provided to VI pupils. However, the 55% of local authorities that did employ teaching assistants directly only accounted for the employment of 495 teaching assistants. The vast majority of teaching assistants, some 2,600, worked in the areas of the remaining 45% of local authorities, and were directly employed by the mainstream schools in which they worked.
Logically, the Claimant's contentions in this case could be applied to arrangements required to be made for any other pupil in a mainstream school with high level special needs, if those arrangements included the provision of specialist teaching assistants.
The first matter the Claimant points to is that under Redbridge's arrangements, whenever a pupil with significant visual impairment moves to a mainstream school, that school must recruit a suitable teaching assistant, and arrange for the assistant to be trained. This takes time, and it is likely that there will be a time lag between when the pupil moves to the school, and when the teaching assistant's training is complete. If the pupil arrives at the school before the teaching assistant's training is complete that will adversely affect the pupil's education. The Claimant points out that in circumstances such as her own, when the teaching assistant needs to be trained to UEB Grade 2 level, the training period can be significant.
The Claimant's second point is that in practice a “decentralised system” reduces the choice of mainstream school available to pupils with significant visual impairment, because in the absence of readily available ready-trained teaching assistants, mainstream schools are less willing to offer places to VI pupils. She points to her own difficulties in finding a secondary school place in a mainstream school in Redbridge.
The Claimant's third and fourth points are that the lack of centralised provision and control by Redbridge brings with it the risk of further disadvantages to VI pupils. For example, because the specialist teaching assistants are employed by the schools, they are at risk of being redeployed by the school to other duties, for example to cover sickness absence elsewhere in the school. If that happens the VI pupil will be left without the specialist help she requires to be able to access education in a mainstream school. Similarly, if the specialist teaching assistant is off sick, because there is no pool of Redbridge specialist teaching assistants, the VI pupil will be left without assistance she needs for so long as the teaching assistant is away.
Based on these matters, the Claimant's legal challenge rests on the following grounds. First, Redbridge's maintenance of a “decentralised...
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