High Court provides important guidance on the Local Authority’s ‘absolute’ duty under section 42 of the Children and Families Act 2014

The recent case of King on the application of JSH (by his father and litigation friend ASH) and Westmoreland and Furness Council [2024] is a rare example of a judicial review claim challenging a breach of section 42 of the Children and Families Act 2014 reaching a final hearing. The judgment contains guidance on the duty to secure special educational provision in an Education, Health and Care Plan (EHCP).

Background

JSH is the claimant, and he challenged the local authority’s failure to secure the special educational provision contained in section F of his Education, Health and Care Plan (EHCP’ in breach of the absolute statutory duty imposed by section 42 of the Children and Families Act 2014. JSH sought a declaration that the local authority had breached section 42 of the Children and Families Act 2014 by failing to secure the special educational provision and further a mandatory order that the local authority must secure all the special educational provision specified in Section F of his EHCP within five weeks of the date of the judgment.  

The local authority did not accept that it was in breach of its section 42 duty and that if it was a breach, it was only a ‘technical breach’ and not a ‘material breach’. As such, the court should not grant permission for the claimant to bring his claim for judicial review.

Facts of the case 

JSH is a young person aged 17 who has a diagnosis of profound autism, profound communication delay, severe learning disabilities and a profound sensory processing disorder. Due to his needs, JSH’s functioning is significantly reduced compared to that of young people of his chronological age, and he is reliant on adults to meet the majority of his needs. His developmental age has been informally described as that of a ‘young infant’. 

JSH attended a special school as a day pupil and received constant 2:1 support. On 9 October 2023, a statutory annual review of his EHCP was held. The school noted that his support needs had increased from 2:1 to 4 or 5:1 when he was upset and suggested that, in future, he required constant 3:1 support. The local authority did not agree and maintained that JSH’s EHCP was unamended. 

On 16 April, the school provided written notice to the local authority terminating JSH’s placement at the school with effect from the end of the summer term 2024. Despite notice being provided in April, there was no special educational provision in place by the new academic year starting in September. 

The hearing was held on 20 November 2023, and by this time, the local authority had identified a residential placement that would be available by December. The local authority’s position was that it had planned to put in place a package of Education Otherwise than at School (‘EOTAS’) at the placement. 

The significant delay in identifying a suitable placement, combined with a failure to provide the special educational provision, was having an adverse impact on JSH’s wellbeing.

The High Court’s decision 

The Court granted permission to JSH to bring a claim for judicial review, made a declaration of breach of section 42 of the Children and Families Act 2014 and issued a mandatory order. 

The Court reaffirmed that the duty to provide special educational provision is an absolute duty; it is not a duty to use best endeavours to make such provision. 

The Court rejected the local authority’s submission that it had not been in breach of its section 42 duty, holding that the question of whether there is a breach of statutory duty appears to be a ‘binary question’. This means the question, ‘Has there been a breach?’ leads to either a yes or no answer. There can be no qualification in terms of that answer. Further, the fact that there had been no special educational provision since September 2024 means ‘that the simple answer to the binary question is yes, there has been a breach of statutory duty. That breach began in September 2024, and it is continuing to date’.

The Court emphasised the need for local authorities to act promptly as soon as they are aware of a pending breach of duty. The local authority was ‘slow off the mark in investigating alternative options after the termination notice was served. It could and should have anticipated that it would need to commence an immediate and thorough search for alternatives at the point when it received the termination notice’. 

The Court held that ‘in circumstances where a young person’s education is at stake, when that person has complex needs, and the local authority is on notice as to the current placement being terminated, it would have been preferable to have had in mind all options at the outset and to discount those which could be easily discounted.’

Comment

The case reaffirms that local authorities have an ‘absolute duty’ to secure the special educational provision in section F of an EHCP under section 42 of the Children and Families Act 2014. Its duty is not just to use its ‘best endeavours’ or try; it must make sure the child receives all of the special educational provision in their EHCP. 

The question of whether there has been a breach of duty is a binary question that demands a yes or no answer. 

The judgment is particularly helpful for its guidance on the need for local authorities to be proactive to avoid a potential breach. 

Speed is of the essence when a young person’s education is at stake, and local authorities must act proactively in finding a suitable alternative placement and ensuring that the special educational provision can continue to be provided.

Why this matters for parents

Where a local authority is failing to provide special educational provision, it is important for parents to seek legal assistance promptly. If you require any assistance with a pre-action protocol letter for judicial review or a claim for judicial review, Birkett Long has a dedicated team ready to assist.