The King on the application of AI v London Borough of Wandsworth
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 11 August 2023 |
| Neutral Citation | [2023] EWHC 2088 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/0984/2022 |
and
[2023] EWHC 2088 (Admin)
Mrs Justice Foster DBE
Case No: CO/0984/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Nicola Braganza KC, Mr Oliver Persey and Ms Nadia O'Mara (instructed by Lawstop) for the Claimant
Ms Aileen McColgan KC (instructed by South London Legal Partnership) for the Defendant
The Interested Party neither appeared nor was represented.
Hearing date: 29 November 2022
Approved Judgment
This judgment was handed down remotely at 3.00pm on 11 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
The Claimant, known in these proceedings as AI, is a transgender young person, currently aged 22 with complex Special Educational Needs and Disabilities (“SEND”). He has since 2016 been a patient at Tavistock's Gender Identity Service.
The Claimant was represented by Ms Nicola Braganza KC, Mr Oliver Persey and Ms Nadia O'Mara and the Defendant by Ms Aileen McColgan KC, I am grateful to them all for the written materials and the oral submissions.
The Claimant argues the Defendant has failed to comply with the Public Sector Equality Duty (“PSED”) arising under section 149 of the Equality Act 2010 (“the 2010 Act”) as regards his needs as a transgender person with an Education, Health and Care Plan (“EHCP”) and, generally, to transgender young people with special educational needs and disabilities. He expresses this challenge as follows in the Statement of Facts and Grounds at paragraph [68]:
“ … Breach of the PSED
The relevant function engaging the PSED
68. The Defendant is in breach of the PSED in how it discharges its absolute duty under section 42 CAFA to secure special educational provision for the Claimant, and transgender children and young people with EHCPs.”
It is expanded upon:
“ Tameside duty
70. … the Claimant is under an extensive Tameside duty of inquiry. This duty extends to equipping itself with information about barriers to transgender children and young people accessing and participating in (see, section 149(3) EA 2010) special educational provision. If the Defendant does not understand the reasons for placements in EHCPs breaking down, it cannot take informed action to prevent it. Therefore, the Claimant submits that the Defendant is under a duty to monitor the ongoing impacts of misgendering and gender reassignment discrimination on access to special educational provision: see DMA at 135–146.
71. In failing to monitor the ongoing impacts of misgendering, the Defendant is unable to demonstrate that it has had regard to eliminating discrimination and advancing equality of opportunity as required by the PSED. There is no evidence of “due regard” to the protected characteristic of gender reassignment in how the Defendant has secured special educational provision for the Claimant or for other transgender children and young people with EHCPs.”
The circumstances of his early life are significantly distressing and can only provoke profound sympathy. Although he cannot yet read or write he has been able to make a statement through his solicitor. He records that his childhood was chaotic. His mother was a recovering drug addict, he saw her subjected to domestic violence and witnessed her taking drugs. He would go back and forth between her and his grandmother and when around 11 or 12 years old, AI went into his grandmother's care. He records moving all the time, living in numerous different places in the South East and spending a lot of time with his grandmother, who is disabled, whom he cared for, and with whom he is in fact, once again, currently living, although he reports difficulties with that relationship. At about 13 or 14 AI went into the care system. He has a long history of disrupted schooling, attending eight separate primary schools and numerous other schools. He has been known to CAMHS since the age of 12.
In his own words (through his solicitor):
“ I can remember going to Coombe Girls School in Kingston for year 7. I got kicked out of Coombe about half way through year 8 (2014) and was moved to a PRU in Tooting. It took ages to get this transition sorted due to a mix up in paperwork. I started at the PRU on 6th January 2015. I left the PRU at the end of year 9. The next school placement was Ramsden Academy in Essex which I didn't start until sometime in year 10. This only lasted a few weeks. I was in care homes between Essex and Leicester and Lincolnshire — wasn't in school in the care homes — about 4 care homes. I was then sent to another PRU in Wandsworth in year 11. This only gave me a couple of months to do my GCSEs which I then sat in the summer term. I then started at Merton South Thames College after my GCSEs, in September 2017 but was permanently excluded in September 2018. When I left South Thames, I was out of college again for a year and a bit. I then started at Roots and Shoots in September 2019. After Roots and Shoots broke down, I had another couple of months out of school before being sent to Lambeth College in September 2020. This didn't last long. I was then out of education from December 2020 for a year and a half until starting at Share Community in November 2021.”
Most of Year 10 was missed, but in September 2017 (Year 12, post GCSE), he attended South Thames Merton College and it was during this year that he began to transition. The succinct recent chronology is as follows:
i. Merton South Thames College: September 2017-September 2018 attended
ii. Out of college education: September 2018-September 2019
iii. Roots and Shoots: September 2019-April 2020
iv. Out of college education: April 2020-September 2020
v. Lambeth College: September 2020-December 2020
vi. Out of college education: December 2020-November 2021
vii. Share Community: November 2021-present
He has a total of 14 diagnoses and continues to have complex needs. His difficulties have been medically described as Mild Mental Retardation, Attachment Disorder, Emotion Dysregulation, Attention Deficit Hyperactivity Disorder (“ADHD”), Oppositional Defiant Disorder (“ODD”) and (Autism Spectrum Disorder (“ASD”), dyslexia, severe anxiety, Post Traumatic Stress Disorder (“PTSD”) and low self-esteem. In 2021, he was diagnosed with disturbance of activity and attention, minimal impairment of behaviour and reactive attachment disorder of childhood.
The Claimant was assigned female gender at birth, but identifies as male. He was referred to the Gender Identity Clinic (“GIC”) at the Tavistock and Portman NHS Foundation Trust (“the Tavistock”), when he was about 14. Mental health professionals have previously advised he may likely need 24-hour support in the foreseeable future. He has been approved for testosterone treatment with gender affirming surgery known as a Subcutaneous Mastectomy.
The Claimant's special educational needs, his disabilities and his gender identity are known to the Defendant who maintains an EHCP for him, having done so since July 2018, and before that maintained a Statement of Special Educational Needs between 2013 and 2016. A statutory process exists in respect of the EHCP which is not under challenge in these proceedings. Reference to AI's attendance since 2016 at the GIC at the Tavistock was mentioned in plan number 4 dated 8 July 2020, and that he was awaiting transfer to adult services. In the plan dated 30 November 2021 “Plan number 5” the gender identity disorder was included as a diagnosis in his EHCP where his health needs are described as:
“[AI] has a diagnosis of: Autism, ADHD – not currently prescribed for, ODD, Anxiety, Low Mood and Sleep Difficulties, Gender Identity Disorder, Reactive Attachment Disorder of childhood.”
The ESSENCE of the DISPUTE
The Claimant argues that the Defendant has provided no evidence of any compliance with their PSED obligations since 2020 and is in breach of them. It is not in dispute that section 42 of the Children and Families Act 2014 (“CAFA”) is a relevant function in relation to securing particular special educational provision for individuals, and not only in general policy formation. The Claimant says that in his case, special educational provision was not secured for extended periods of time, but that if the Defendant had undertaken the enquiries required by the PSED, it “ might have better understood the reasons why the Claimant's placements were breaking down and taken appropriate action”. The Defendant has never turned its mind to the possibility that gender reassignment discrimination might be the cause and therefore failed to equip itself with relevant information to take appropriate remedial action.
It is the Claimant's case that since he transitioned, his educational placements in his EHCP have repeatedly broken down and his misgendering by others (where the inappropriate pronoun is used for a person) “ has contributed to this”. That has caused serious disruption in accessing the special educational provision required in his EHCP.
The Claimant points to the Defendant's evidence of matters it has considered, and submits it is inadequate to demonstrate discharge of their statutory duty, they have not informed themselves of the position and have failed to monitor it.
AI refers in particular to:
a. The fact that the Claimant was misgendered in two placements.
b. An Equality Impact Needs Assessment (an “EINA”) was carried out in respect of the SEND service and policy functions in September 2020, but that document indicated the answer “unknown” in respect of a question relating to the number in receipt of an EHCP for whom gender reassignment was an...
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