ZK, R (On the Application Of) v London Borough of Redbridge

Generic arrangements for supporting children with severe special educational needs are not unlawful merely because they are imperfect or may create operational risks. The question is whether the arrangements are irrational, disregard relevant considerations, or create an inherent likelihood that statutory duties will not be met.

Under section 42 of the Children and Families Act 2014, a local authority must provide and maintain the provision specified in an education, health and care plan. Reasonable forward planning is generally sufficient, although provision must be arranged promptly where circumstances could not reasonably have been anticipated.

Section 27 of the 2014 Act imposes a strategic, programmatic duty to review the sufficiency of educational provision. A combination of general and specific reviews may satisfy that duty. The public sector equality duty concerns decision-making processes and due regard, not the substantive choice of policy.

The claimant, a blind and partially deaf child attending a mainstream secondary school, challenged Redbridge’s arrangements for supporting visually impaired pupils with high-level special educational needs.

Redbridge did not directly employ specialist teaching assistants or QTVI teachers. Schools employed the teaching assistants, while Redbridge contracted with the Joseph Clarke Educational Service for specialist advice and training.

The claimant alleged that this decentralised model was irrational, created an unacceptable risk of breach of section 42 of the Children and Families Act 2014, unlawfully discriminated against visually impaired pupils, breached section 27 of that Act, and failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.

1. Outcome. All claims were dismissed. The challenge was directed to Redbridge’s generic arrangements, rather than to any specific failure to comply with the claimant’s EHCP.

2. The decentralised model was not irrational and did not demonstrate a failure to consider relevant matters. Recruitment and training delays, possible redeployment, and sickness absence were theoretical or manageable risks. The arrangements for school transfers allowed reasonable forward planning, and additional assistance could be obtained from JCES where necessary.

3. The court rejected the argument that a generic policy could only be challenged for an unacceptable risk of unfairness. The principle identified in R(Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219 and R(Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] 1 WLR 4620 was not confined to procedural fairness. A substantive policy may be unlawful if it is inherently incapable of lawful application. The approach in Bayer PLC v NHS Darlington CCG [2018] EWHC 2465 (Admin) was materially consistent with that standard.

4. Section 42 required Redbridge to provide and maintain the provision specified in an EHCP. It required reasonable forward planning, but did not require a local authority to maintain an indefinite reserve of specialist staff covering every possible low-incidence need. If an unforeseen situation arose, the specified provision had to be secured promptly.

5. The discrimination claims failed because the generic arrangements did not place visually impaired pupils at the alleged disadvantage. The question of justification therefore did not arise. The reasonable-adjustments claim likewise failed because no substantial disadvantage was established.

6. Section 27 imposed a strategic obligation. A local authority had to monitor and evaluate its provision over a sensible period, using whatever combination of general and specific exercises was appropriate. The courts should avoid an overly prescriptive or one-size-fits-all approach. Redbridge’s High Needs Review and annual JCES review process were capable, viewed together, of satisfying the duty.

7. Section 149 of the Equality Act 2010 concerned the decision-making process and due regard, rather than the merits of a centralised or decentralised model. The substance of Redbridge’s arrangements already pursued provision designed to meet the assessed needs in EHCPs. The claim therefore failed.