ZK v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lady Justice Rose,Lord Justice Baker |
| Judgment Date | 01 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1597 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/1533 |
| Date | 01 December 2020 |
[2020] EWCA Civ 1597
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE SWIFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Baker
Lady Justice Rose DBE
and
Lady Justice Simler DBE
Case No: C1/2019/1533
Mr Nicholas Bowen QC and Mr David Lemer (instructed by Watkins and Gunn Solicitors) for the Appellant
Ms Deok Joo Rhee QC and Mr Tom Tabori (instructed by London Borough of Redbridge) for the Respondent
Hearing dates: 28 & 29 October 2020
Approved Judgment
Introduction
This appeal concerns a 13 year old school girl, referred to as ZK, who brings these proceedings by her mother and litigation friend, HK. ZK is totally blind as a result of a brain tumour, and partially deaf, in consequence of the same tumour. In consequence of her severe visual impairment and resulting special educational needs, she requires a high level of support. She has been and is being educated in mainstream schools in the London Borough of Redbridge (referred to as “Redbridge”), the respondent to this appeal.
The essential challenge pursued on ZK's behalf by HK is to the failure by Redbridge to adopt a “centralised model” of specialist educational support for children with visual impairment in mainstream schools whereby the local authority recruits and employs a central pool of specialist teaching assistants who are then seconded out to the school which the child attends. Instead they adopt a “decentralised model” under which it is the school that recruits and employs a specialist teaching assistant, if and when it has a child attending with that particular need. The decentralised model is said to be incapable at a systems level, of meeting the special educational needs of disabled children like ZK who have a high level of special needs support, including support from specialist teaching assistants, who are in turn, supported by qualified teachers of the visually impaired (“QTVIs”). 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. Under the Redbridge model, however, it neither employs those QTVIs, nor employs or trains the teaching assistants who work with visually impaired pupils in mainstream schools. Instead they are employed by the schools in which they work. This is the “decentralised model” under challenge.
In her first witness statement HK identified the problems with a decentralised model as including that because teaching assistants are employed by the school and responsible only to the head teacher of a school, there is no central input from the local authority which has the responsibility to secure the provision of special educational support for the disabled pupil. That means that teaching assistants often have no specialist training, for example braille knowledge and/or qualifications and almost never have skills in STEM subjects; and there is no opportunity for continuous professional development for general teaching assistants under a decentralised model. It is her case that this model limits the pool of appropriately skilled staff available to support children like ZK, leaving them vulnerable to having no adequately skilled support as required on transition to a different school (for example, transition from primary to secondary school) or if the designated teaching assistant is absent and in consequence, is inherently unlawful and at odds with Redbridge's compliance with the statutory obligations it owes to disabled pupils with special educational needs. HK also said that the decentralised model results in a lack of choice of schools in Redbridge for pupils like ZK, and a risk of them being forced out of mainstream schools into specialist education at long distance from home with the difficulties (social and travelling time) that entails.
Swift J rejected the judicial review claim. His essential reasons so far as relevant to the grounds of appeal advanced on behalf of ZK can be summarised as follows:
i) Irrationality: the judge accepted that the arrangements Redbridge has in place may not be perfect, fool-proof, or fail-safe. He acknowledged evidence both from HK, and from the mother of another child who suffers severe visual impairment that was critical of how educational matters relating to their children had been addressed on occasion (and that might afford the basis for specific challenge). However, this challenge was a systemic challenge at a generic level, to the general arrangements in place. He concluded that at the generic level, the arrangements made by Redbridge for the provision of services from JCES to support the teaching of visually impaired pupils in mainstream schools are not such as to be irrational, and are not such as to warrant an inference that they have been entered into without due regard for relevant considerations.
ii) Illegality: the judge did not consider the arrangements in place under which specialist teaching assistants are employed by schools and trained and supported by JCES gave rise to any inherent likelihood that Redbridge would fail to comply with its legal obligations. He was satisfied Redbridge's arrangements, in particular for the management of transfers between schools at the end of Year 6 for the beginning of Year 7, are sufficient when considered at a generic level, and do not entail the inherent likelihood that Redbridge would fail to comply with its legal obligations.
iii) Unlawful discrimination: the judge dismissed ZK's unlawful disability discrimination claims. Whilst he accepted that these claims raised a different question from the earlier grounds, the outcome was the same; the disadvantages claimed were the same as those relied on in relation to the irrationality and illegality grounds. The claims failed on their facts and the judge was satisfied that the arrangements were not such as inherently to give rise to disadvantage. The issue of justification did not arise.
iv) Public sector equality duty under s.149 Equality Act 2010: the judge rejected ZK's argument that Redbridge failed to have due regard to the special educational needs of VI pupils, and the need to eliminate discrimination between such pupils and other pupils in mainstream schools, by maintaining the decentralised model. The fact that the very purpose of the arrangements Redbridge makes with JCES from year to year is to ensure that what is required to meet the assessed needs of visually impaired pupils is available, means the very purpose of the exercise was to seek the elimination of discrimination between those pupils and other pupils. That purpose was said to run through to Redbridge's decision on what services should be secured from JCES. Accordingly this claim also failed.
Mr Nicholas Bowen QC who appears with Mr David Lemer on behalf of ZK (but did not appear below), challenges those conclusions on three broad grounds as follows:
i) The judge wrongly found that Redbridge's decentralised model was not irrational and/or unlawful because he failed to apply the correct test for determining whether a public body's policy is unlawful, erred in his interpretation of section 42 of the Children and Families Act 2014, and made a number of findings of fact which were not open to him on the evidence.
ii) The judge erred in finding that the decentralised model did not cause disadvantage to children with severe visual impairment such as ZK.
iii) The judge erred in inferring compliance with the duty under section 149 of the Equality Act 2010.
The appeal is resisted. Ms Deok Joo Rhee QC who appears with Mr Tom Tabori for Redbridge contends that the judge made no error of law; and in relation to all three grounds, contends that the appeal turns largely on challenges to the judge's factual findings which were entirely open to him on the evidence in the case and cannot be impugned.
We are grateful to all counsel for their written and oral submissions in this sensitive case.
The legal framework governing special educational needs
A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
The current statutory provisions governing special educational needs and disability provision are in Part 3 of the Children and Families Act 2014 (“the 2014 Act”) which replaced the previous scheme in Part 4 of the Education Act 1996. Local authorities are under a duty to exercise their functions with a view to ensuring that all children and young people with learning difficulties or disabilities in their areas are identified. The parent of a child or young person may request an assessment of the educational, health care, and social care needs of a child or a young person (and there is a right of appeal against a refusal to assess): sections 36 and 51 of the 2014 Act.
In the light of an assessment, if it is necessary for special educational provision to be made, the local authority must secure preparation of and once prepared must maintain, an education and health and care plan (“the EHC plan”) (which replaced statements of special educational need under the 1996 Act). The EHC plan will specify, among other things, the special educational provision required for the child or young person: section 37 of the 2014 Act. There are rights of appeal against the content of an EHC plan: section 51 of the 2014 Act.
Regulations governing the form of an EHC plan, the Special Educational Needs and Disability Regulations 2014, provide by regulation 12(1) for separate identification in the EHC plan of inter alia the following: “(b) the child or young person's special educational needs (section B); …. (e) the outcome sought by him or her...
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...he submitted that the claim failed on the facts. He referred to the decision of the Court of Appeal in ZK v Redbridge LBC [2020] EWCA Civ 1597 at paragraph [80] in support of the proposition that the question is not whether isolated incidents occurred, but whether there are systemic failin......