S, R (On the Application Of) v London Borough of Camden

A local authority must secure the special educational provision specified in a final Education, Health and Care plan. A plan remains effective as a final plan despite a technical defect, such as the absence of a named school, where it was intended and issued as final. A pending amendment process cannot continue after the underlying plan has been superseded by a later final plan. Any fresh amendment must comply with the statutory consultation requirements. A fundamental change to the specified provision requires the draft plan to be re-issued so that parents can make informed representations. A specialist tribunal appeal is not an adequate alternative remedy where it cannot quash an unlawful plan or enforce an earlier order. Relief should not be refused where proper consultation might materially affect the outcome.

S was a seven-year-old child with autistic spectrum disorder. Following an appeal, the First-tier Tribunal ordered Camden to include 30 hours of intensive applied behaviour analysis in his Education, Health and Care plan. Camden amended the plan accordingly in April 2018, but then purported to continue an earlier amendment process and issued a June 2018 plan naming Swiss Cottage School and replacing the applied behaviour analysis provision with an eclectic programme.

S sought judicial review, alleging breach of the duty to secure the April provision and unlawfulness in the making of the June plan. The issues included the status of the April plan, the effect of the First-tier Tribunal decision, procedural compliance, materiality of the procedural defects, and the adequacy of a further tribunal appeal.

1. Duty to secure provision. The April 2018 document was an amended final plan. It was signed and dated, described as the revised plan, and issued pursuant to the First-tier Tribunal’s order to amend the existing plan. The absence of a named school did not convert it into a draft. Camden was therefore under the mandatory duty in section 42(2) of the Children and Families Act 2014 to secure the specified provision. It had been in breach since 16 April 2018, when the parents made clear that they required Camden to arrange the provision.
2. Effect of the tribunal decision. The April plan superseded the July 2017 plan. The pending amendment process begun in March 2018 consequently ceased to have effect. Camden had no power simply to issue the June plan without beginning a fresh amendment process directed to the April plan.
3. Consultation. A local authority may initiate amendment proceedings at any time, but there must be a legitimate trigger, such as the need to name a school, new evidence, or a change of circumstances. Here, the tribunal’s order made a fundamental change to Section F. Camden could not continue with a draft that omitted applied behaviour analysis and insert a different programme without consulting the parents about the change and the supporting evidence. This breached the statutory scheme and the mandatory guidance in paragraph 9.125 of the Code of Practice.
4. The omission of an opportunity to request an oral meeting would not alone have invalidated the process. The failure to re-issue the draft after the fundamental change was different. It was not highly likely that the outcome would have been substantially the same, because proper consultation could have led to arguments for adjustments at Swiss Cottage School or consideration of another placement.
5. A further First-tier Tribunal appeal was not a suitable alternative remedy. The tribunal could not quash the June plan, enforce its earlier order, or grant interim relief. The claim succeeded. The June plan was declared unlawful and quashed. Camden was declared in breach of section 42 and ordered to fund 30 hours of home-based applied behaviour analysis for each of the 38 weeks of the normal school year until a lawful amended plan took effect.

The judgment itself describes proceedings before the First-tier Tribunal, which ordered Camden to include 30 hours per week of intensive applied behaviour analysis in S’s Education, Health and Care plan. Camden subsequently issued the impugned June 2018 plan. The Administrative Court allowed the judicial review claim, declared that plan unlawful, quashed it, and granted mandatory relief.