JK, R (on the application of) v London Borough of Waltham Haringey

For a child looked after by a local authority who has a statement of special educational needs, the authority responsible for maintaining the statement must ensure that the specified educational provision is made in practice. The authority’s responsibility for maintaining the statement is distinct from financial responsibility for education provided by another authority. The statutory rules determining which authority a child belongs to operate alongside, and in this context exclude the application of, the transfer machinery in Regulation 23 of the 2001 Regulations. A local authority cannot retrospectively justify its conduct by relying on section 101 of the Local Government Act 1972 where no such arrangement was made or relied on when the relevant decision was taken.

The claimant was a child with special educational needs who was accommodated by Haringey in the area of Waltham Forest and placed in a special school there. His existing statement provided for mainstream education with specified support, but he had been permanently excluded, placed in a specialist school and not reassessed.

Haringey argued that responsibility for assessing his needs and maintaining the statement had transferred to Waltham Forest under Regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. It accepted financial responsibility but claimed to have transferred administrative management. The issue was which authority retained the legal duty to maintain and implement the statement.

1. Claim allowed. The legal duty to maintain the claimant’s statement of special educational needs and ensure that it was implemented rested with Haringey.
2. Regulation 7 of the Education (Areas to which Pupils and Students Belong) Regulations 1996 applied to a child looked after by a local authority and operated to the exclusion of any other regulation which would otherwise apply. The court preferred the reasoning in R (on the application of L) v London Borough of Waltham Forest and another [2007] EWHC 2060 (Admin).
3. The rules concerning the area to which a child belongs determined which authority was responsible for maintaining the statement and associated duties. The recoupment provisions governed financial responsibility between authorities and did not alter that antecedent responsibility. The court therefore rejected the argument that Haringey could remain financially responsible while transferring responsibility for maintaining the statement.
4. There was no conflict between Regulation 7 and section 321(3) of the Education Act 1996. Regulation 7 was not confined to excluding other regulations within the 1996 Regulations and also excluded Regulation 23 of the 2001 Regulations. In any event, the claimant had not moved to Waltham Forest: his family home remained in Haringey, so Regulation 23 did not apply.
5. Section 101(1)(b) of the Local Government Act 1972 did not assist Haringey. There was no evidence that Haringey had made an arrangement under that provision, and a statutory authority could not retrospectively rely on a provision that it had not had in mind when acting. The joint protocol between the authorities did not establish such an arrangement.
6. The precise terms of the order and costs were to be determined after submissions.

First-instance judicial review proceedings. No earlier appellate decision is stated in the judgment.