H, R (on the application of) v London Borough of Barnet

A local authority must determine for itself whether the statutory conditions for accommodating a child are met. The court reviews the lawfulness and rationality of that judgment, rather than deciding the merits afresh. Assessments and care plans must consider the relevant circumstances in the round, but they need not follow a particular non-statutory format or contain every assessment suggested by a claimant. Residential schooling may, in principle, constitute accommodation under the Children Act 1989, although the authority must consider the child’s wishes, parental views and educational and social-care factors lawfully. Judicial review is not the appropriate route for challenging the educational merits of a statement of special educational needs where a specialist appeal lies.

The claimants, a teenage boy with emotional and behavioural difficulties and Asperger’s syndrome and his mother, challenged the defendant local authority’s core assessment, care plan and related carer assessment under the Children Act 1989. They contended that the authority should have arranged residential schooling or accommodation, had failed properly to assess the parents and the mother’s caring role, and had inadequately addressed educational and implementation issues.

The claim had originally concerned earlier assessments and was amended after permission was granted for a rolled-up hearing. The lawfulness of the final amended statement of special educational needs was not directly before the court. The central issue was whether the challenged assessments and care plan were unlawful because they rejected residential provision and adopted a shared-care strategy.

1. The claim was dismissed. Permission to apply for judicial review was granted, but the local authority’s decisions were lawful. The costs order was subject to detailed assessment and enforcement against the legally aided claimants required leave.
2. Under section 20(1)(c) of the Children Act 1989, the phrase “who appears to them” makes the question whether accommodation is required one for the local authority’s judgment. The court must review that judgment for legal error and irrationality; it must not decide the merits or facts afresh. If the authority has failed to decide an issue requiring determination, the appropriate remedy is a mandatory order requiring it to do so.
3. The authority was entitled to conclude that the mother was providing suitable care, despite the substantial strain imposed on her. It was also entitled to take account of assistance available under the proposed care plan. Residential accommodation in a school is not excluded in principle from accommodation under the Act, but the assessment had considered that possibility in the round. The child’s wishes were relevant to the discretionary powers under sections 20(4) and 17(6), and the option had not been unlawfully ignored.
4. A lawful shared-care plan did not require a separate parenting-capacity assessment of the father. The authority knew the parents’ circumstances, attitudes and difficulties, had spoken to the father, and had proposed continuing support. The suggested need to await evidence that the strategy worked before implementing it was circular.
5. The carer’s assessment was not unlawful merely because it did not reproduce the structured format in practical guidance. The assessment considered the mother’s health, employment, social life, safety, caring burden and available support. No material consideration had been omitted.
6. Judicial review was not the proper means of challenging the educational merits of a statement of special educational needs. Those matters could be considered by SENDIST. No educational psychologist’s report was legally required for the core assessment or care plan, and the authority had lawfully considered the educational and social-care issues together. Minor omissions about implementation details did not establish an error of law.

First-instance judicial review in the Administrative Court. Permission was granted for the rolled-up hearing, but the claim was dismissed.