Alloway, R (on the application of) v London Borough of Bromley

Under Learning and Skills Act 2000, section 140 requires an assessment of a person’s educational and training needs and of the provision required to meet them, followed by a written report. The assessment must address provision that can actually and realistically be provided, rather than merely theoretical or ideal provision. The report must intelligibly reflect the assessment and identify its principal conclusions sufficiently clearly to inform the Learning and Skills Council’s functions. The assessing authority must decide the availability of the provision before reporting. It must not leave that issue to the Council at the funding or implementation stage. The level of detail depends on the circumstances, and the report must be read as a whole and in a common-sense manner.

The claimant, a young person with autism, learning disabilities and epilepsy, challenged a section 140 assessment and report prepared by the defendant local authority after responsibility had transferred from Connexions. His educational psychologist’s recommendations were accepted, but the claimant argued that the report failed to identify clearly how the recommended provision would be delivered in practice and whether it was available at South Downs College. The authority argued that section 140 imposed a limited duty and that questions of practical provision and funding belonged to the Learning and Skills Council. The central issues were whether the report complied with section 140(4), and whether the authority had properly assessed and reported on the availability of the required provision.

1. Declaration granted. The assessment and report served on 2 July 2008 did not comply with section 140(4) of the Learning and Skills Act 2000. The authority was directed to reconsider the assessment and report as soon as reasonably practicable. The report was not quashed, because the Learning and Skills Council had accepted it as sufficient to begin funding some assistance, and further delay was undesirable.
2. Section 140(4) requires an assessment of the person’s educational and training needs, an assessment of the provision required to meet those needs, and a written report of that assessment. The authority must assess provision that is actually and realistically available. Merely theoretical recommendations do not satisfy the statutory requirement.
3. The authority must be reasonably satisfied, at the time of assessment and reporting, that the identified provision can be delivered. The Learning and Skills Council retains its separate functions under sections 3 and 13, including considering reasonableness and funding. Those functions do not relieve the authority of its own duty to assess actual provision.
4. The report must reasonably reflect the conclusions of the assessment in a clear and intelligible form. It must cover the principal aspects of the needs assessment and the provision identified to meet those needs, while the necessary level of detail depends on the individual case. The report should be read as a whole and in a common-sense way, but the court may intervene where the statutory exercise has not been lawfully performed or contains a material error.
5. The authority had accepted the expert recommendations but had misunderstood or inadequately expressed the requirement for experienced teaching-assistant support. The report also showed that the practical availability of the recommended provision had not been resolved. The authority had therefore confused its assessment role with the Learning and Skills Council’s later implementation and funding role.
6. Permission to appeal was refused. The approach applied standard public-law principles and did not raise a genuinely new point of law.

First-instance judicial review. Permission to appeal was refused by the High Court.