Securing educational provision and accommodation for children with complex needs

April 14, 2022

The High Court recently granted six mandatory orders against a local authority for “serious and substantial” breaches of duty to a vulnerable 15-year-old child. Gráinne Mellon explains why.

In R (LB) v Surrey County Council [2022] EWHC 772 (Admin) the High Court has ruled that Surrey County Council breached several statutory duties to a vulnerable child looked after by them.

LB was a 15-year-old girl with complex health and education needs. She was looked after by the Defendant under section 20 of the Children Act 1989. However, after the breakdown of previous residential placements, she had been placed with her mother. Her mother was having serious difficulties meeting her needs. Her educational needs were also not being met and the Defendant was failing to provide her consistently with education otherwise than at school (EOTAS).

Through her mother and litigation friend, she argued that the Defendant had:

Failed to provide her with suitable interim education, as a child of compulsory school age, as required by section 19 of the Education Act 1996;
Failed to review her education, health and care plan (EHCP) and to secure the provision specified in the EHCP as required by the Children and Families Act 2014;
Failed to provide her with accommodation under section 20 of the Children Act 1989, insofar as she had been placed with her mother;
Failed to carry out assessments of LB’s needs under section 17 of the 1989 Act, and of her mother’s needs as a parent-carer under section 17ZD of the 1989 Act.

Neil Cameron QC, sitting as a Deputy Judge of the High Court agreed with the Claimant in all respects, made five declarations of illegality, and ordered the Defendant to provide the Claimant with the help she needs by making six orders in relation to her accommodation, care and education.

The judgment provides useful guidance on the duties imposed on local authorities to provide education other than in school pursuant to s. 19 Education Act 1996 (paragraph 74-84). It emphasises that “[t]he duty to make arrangements for the provision of suitable education is not a duty to attempt to make arrangements… it is a duty to arrange for the provision of suitable education” (paragraph 74).

By the time judgment was given, it had been conceded by the Defendant, contrary to its original position, that it had been unlawful for the Defendant to place LB with her mother. This concession was on the basis of section 22C(4)(a) of the 1989 Act, which provides that a local authority is not required to make arrangements for a looked after child to live with a parent if doing so would not be consistent with the child’s welfare or would not be reasonably practicable (paragraph 90).

The judgment provides guidance on reasonable timeframes for assessments under sections 17 and 17ZD of the 1989 Act (para 101-106). It emphasises that “[t]he duty imposed by section 17ZD is mandatory. Once the conditions set out in subsections (3) and (4) are met, the local authority must assess whether a parent carer has needs for support, and if so, what those needs are. That duty must be carried out within a reasonable period. The period which is reasonable will depend on all the facts and circumstances of the case.” (paragraph 104)

Finally, the judgment is useful on relief. The Defendant argued that it was unable to provide the Claimant with the accommodation, education and care that she needs and that relief should therefore be refused. The Court was clear that relief was required. The court granted a series of mandatory orders and afforded the Defendant time to comply with the duties, but limited this to 30 days (paragraphs 110-115).

The Defendant has now been ordered, within 30 days, to assess LB and her mother’s care needs, ensure she has an updated care plan, review LB’s EHCP, provide her with education other than in school and provide her with accommodation away from the family home.

Gráinne Mellon is a member of the Garden Court Public Law Team. She practises in a wide range of education and community care law challenges. She was instructed in this case by Serena Fasso, Public Law Solicitor at Simpson Millar.