R (on the application of Alloway) v London Borough of Bromley (2008) EWHC 2449

This was an application for Judicial Review by the Claimant ‘A’ against the Local Authority in respect of whether they had fulfilled the duties expected of them under s.140 of the Learning and Skills Act 2000 [‘the Act’]. Under this provision in the Act the Secretary of State must, during the last year of compulsory schooling, complete an assessment of any person who has a Statement of Special Educational Needs and who will leave school at the end of their last year of compulsory schooling and go on to receive further education or training. The assessment must result in a written report of his educational and training needs, and the provision required to meet them.
A, who had learning difficulties and was on the autistic spectrum, had throughout his childhood been educated at specialist residential placements. From 2004- 2007 he was placed in a care home and attended a day centre. It was not disputed that during this period the educational provision made available was inadequate to meet his needs. From 2007 he began attending a college of further education which was maintained by the Learning and Skills Council. At no time had an assessment of his educational needs been completed though the Local Authority had requested one be done by a company to whom they had delegated this task. During the process of this assessment A had commissioned a report from an independent educational psychologist who had made a number of recommendations. The Local Authority had agreed to accept all these recommendations, but had not addressed how they would meet these within their report. As such the report was deemed to still be in a ‘draft’ state. The Court was asked to rule whether this assessment could comply with the legal requirements set out in s.140 of the Act and if it was adequate to ensure that the Learning and Skills Council could comply with their own obligations under s .3 and s.13 of the Act.
The Court confirmed that they did have jurisdiction, by way of Judicial Review, over whether the assessment and subsequent report were sufficient to meet their legal requirements under s.140 of the Act and to further ensure that those undertaking the assessment had compiled with their obligations in a reasonable way. It concluded that a mere set of recommendations which did not specifically address what was available and would be provided to meet the individual’s educational and training needs would not amount to an assessment for the purposes of s.140 of the Act.  The minimum required was some evidence that, at the time of the assessment, any recommendations made could actually be met and that this must be clear not only to an informed reader but particularly to the Learning and Skills Council as they must have regard to this in order to undertake their functions under the Act. The Court quashed the decision by the Local Authority and ordered that they undertake a fresh assessment speedily, finding that, in this instance, the Local Authority had failed to complete the assessment both because it had failed to understand the recommendations of the independent psychologist and to ensure that the provision he had recommended was available. If a local authority were to adopt the recommendations of an independent expert they must then satisfy themselves that provision was available to meet these needs before concluding the assessment. Section 3 and 13 of the Act required that thereafter the Learning and Skills Council must then consider whether such provision was reasonable and determine on that basis whether they would make funding available.

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