R (on the application of P (a child by his mother & litigation friend KP)) v Windsor & Maidenhead Royal Borough Council & Learning & Skills Council (Interested Party) [2010] EWHC 1408 (Admin)

In this case P sought to judicially review a decision of the local authority that he should be educated at a local specialist school rather than his preferred residential college. P, who had a statement of special educational needs, suffered from a rare chromosomal abnormality. He had attended a Rudolf Steiner school which had a particular educational philosophy that his mother believed was best suited to meet his needs. Both P and his mother had requested he attend a residential college which adopted the same principles and this was supported by the educational professionals involved in his care.
The local authority undertook an assessment, based on earlier reports, of P post 16 educational needs. On completion of the assessments and, in purported pursuance of the obligation under s139A of the Learning and Skills Act 2000, it then produced a report setting out the identified needs; s139B(3) specifies that an assessment must result in a  written report of both the person’s educational and training needs, and the provision required to meet them. However this report was in general terms and did not identify a post 16 placement so could not detail how these needs would be met within the proposed placement. In addition the report indicated that the assessment had been conducted without consultation with P or his mother, save their involvement in earlier assessments upon which this assessment relied. An application was made to the interested party (LSC) for funding P’s placement at the college, but refused as the defendant local authority had confirmed that suitable alternative placements were available in the locality and could therefore not recommend a residential placement, albeit this was the parental preference.
The local authority subsequently offered P a place at Holyport Manor School on the basis that this placement was available, was able to meet all P’s needs as identified in their assessment, and would be the most cost effective option.  P commenced proceedings on the basis that the defendants had failed to assess P in accordance with s139A Learning and Skills Act 2000, including the provision, so that the defendant’s decision to offer a placement at Holyport Manor School was Wednesbury unreasonable. The applicant sought an order quashing the decision and a declaration that the decision to offer a place at Holyport Manor School was unlawful. The local authority, defending these proceedings, relied upon their assessment and a written report.
The High Court commented that under s.139A(7)of the Learning and Skills Act 2000 the local authority was obliged to have regard to guidance issued by the Secretary of State when undertaking its assessment under s.139A and making its written report of that assessment. It noted that at the time of the report relied on by the defendants, the Secretary of State had issued a draft document which was still subject to consultation, but was highly relevant as it was based on the decision in R (on the application of Alloway) v Bromley LBC (2008). The Court made clear that, although the draft format of the guidance meant the local authority were not obligated to follow it, the local authority was required to follow the decision in Alloway. Applying the principle put forward in Alloway confirmed that any report detailing provision to meet post 16 educational needs “should not be merely a set of recommendations as to what would in theory, or ideally, be required but it should identify what could actually and realistically be provided. I do not see how that can be done without recommending the likely provider. …The question of provision must be addressed “in the real world”.  How can that be done if no recommendation is made about the provider?  The obligation to undertake an assessment and to produce a written report arises when a local education authority maintains a statement of special educational needs for a person and believes that he/she will leave school at the end of the last year of compulsory schooling to receive post-16 education or training or higher education. The necessary belief on the part of the local authority will usually, if not invariably, be triggered by a belief that the person in question is to leave his or her school to take up a place at a specific educational establishment or, at the very least, at an educational establishment to be chosen out of a few possibilities.” He also commented that the local education authority knows that the LSC must have regard to the report of an assessment conducted under s.139A if it is called upon to discharge any of its functions and would not be able to fulfil its functions if no provision has been identified.
Therefore, because the assessment and subsequent report were prepared in isolation from any proposed placement the Court held that they accord with the statutory requirements of s139A and s139B(3) of the Learning and Skills Act 2000. However in the circumstances the Judge did not believe it was appropriate to declare the local authority’s decision, to propose a placement at Holyport Manor School, unlawful.

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