Test case goes to judicial review
The speed with which local authorities issue and revise Education, Health and Care (EHC) plans for children and young people with special needs has long been a source of complaint amongst parents. In some cases they are often forced to take legal action to get the support that they need for their families.
The recent BBC Panorama documentary ‘Fighting for an Education’ described it as “an adversarial system that was supposed to put the needs of children at its heart but instead has created what some call ‘a treacle of bureaucracy’ for parents to navigate.”
The problem is particularly acute when a plan is revised to take account of changing needs.
Solicitor and SEN expert, Beverley Watkins has seen children wait up to two and a half years for their plans to be revised:
“This leaves parents and children in limbo with inappropriate care under the previous plan. Sadly, many local authorities take months if not years to amend an EHCP following a review, and this delays the parents right to appeal.”
In April 2020, Watkins started proceedings for three families who had already been waiting many months since their annual review meetings with their schools and social care workers.
This concerned children who needed to change schools, and the provision to meet their needs had to be updated for effective consultation with potential schools and to meet their current needs.
Keith Lomax, solicitor, who has been challenging local authorities for over thirty years, took the case to judicial review. The purpose of this was to argue that the law provides for 12 weeks in total from annual review to a final amended EHC plan and consequently councils that allow themselves more time are acting unlawfully.
Just when the case went to the High Court, Devon County Council issued the revised EHC plans. Theoretically removing any legal argument that the children’s needs were not being updated and argued that the claims were “academic”.
At the final hearing in August, the judge said that the claims were “academic” as the families had achieved the result which they desired and refused any remedy.
However, this as not the first time that Beverley Watkins had seen this tactic and if it went unchallenged it was reasonable to expect that other local authorities might take a similar approach.
Indeed, Keith Lomax noted:
“the ink was barely dry on the court order when Devon County Council made it clear that they continued to take the same old approach to these timescales.
“Why should parents be forced to have the stress of taking a case to court for their children simply to ensure that an agreed course of action is put in place within a reasonable amount of time?”
EHCP timetable to be considered by the Court of Appeal
Watkins Solicitors sought permission to challenge whether the judge was right to describe the claims as “academic” and to seek clarification on the 12 weeks’ time period.
On 3rd November, permission was granted to appeal in the Court of Appeal on behalf of the three children with SEND. Their judicial review could significantly impact on local authority procedures for children with EHC plans.
Keith Lomax said,
“We now look to the Court of Appeal to confirm that these claims which relate to very vulnerable young people are not academic, and to confirm what the law says about how councils must approach the timescales for updating EHC Plans for children and young people.”
In her order granting permission, the Rt. Hon. Lady Justice Andrews DBE said:
“The needs of these children are such that further plans of this nature are bound to be put in place in future years, so the dispute as to the correct interpretation of the regulations is likely to be of real practical importance in future.”
The appeal will now proceed to a final hearing which is scheduled to be heard by the end of November 2021.
There were 390,100 children and young people with Education, Health and Care (EHC) plans maintained by local authorities in England. Of these, 53,900 children and young people received new EHC plans during the 2019 calendar year.
Only 60.4% of these new EHC plans were issued within 20 weeks (almost half an academic year) while over 21,500 children and young people had to wait much longer.