ZK v London Borough of Redbridge

The Court of Appeal dismissed the challenge to Redbridge's use of a decentralised model for providing specialist educational support to visually impaired pupils. The court confirmed that section 42 of the Children and Families Act 2014 imposes an absolute duty to secure the special educational provision specified in an EHC plan, but held that that duty does not, as a matter of law, require a local authority to maintain a permanent centrally employed bank of specialist teaching assistants for low-incidence, high-need cases.

The court applied established principles distinguishing systemic illegality or unfairness from individual operational failures and concluded that the judge below (Swift J) permissibly found the Redbridge arrangements were not irrational or inherently unlawful, did not inherently disadvantage visually impaired pupils for the purposes of unlawful indirect discrimination or reasonable adjustments under the Equality Act 2010, and did not show breach of the public sector equality duty (section 149). The court relied on evidence about planning, the contract with the Joseph Clarke Educational Service and the authority's proactive liaison with parents and schools to support those findings.

Background and parties: The appellant is a 13 year old, totally blind and partially deaf pupil ("ZK") represented by her mother (HK). The respondent is the London Borough of Redbridge. The dispute concerns Redbridge's adoption of a decentralised model under which mainstream schools recruit and employ specialist teaching assistants, rather than a centralised model in which the local authority would employ a pool of specialist assistants to deploy as needed. ZK's EHC plan specified extensive specialist provision including braille-trained teaching assistant support and QTVI input.

Nature of the claim: Judicial review and discrimination claims challenging the decentralised model as (i) irrational or unlawful in breach of the Children and Families Act 2014 (in particular section 42), (ii) indirectly discriminatory and a failure to make reasonable adjustments under the Equality Act 2010, and (iii) a failure to comply with the public sector equality duty (section 149 Equality Act 2010).

Procedural posture: The appeal was from the order of Swift J ([2019] EWHC 1450 (Admin)). The EHC plan had also been the subject of proceedings before the First-tier Tribunal which resulted in an amended EHC plan dated 13 September 2018.

Issues framed: The court addressed (i) whether Redbridge's decentralised arrangements were irrational or inherently unlawful such that there was an inherent likelihood of breach of section 42 obligations to secure specified provision in EHC plans; (ii) whether the arrangements inherently disadvantaged visually impaired pupils so as to amount to unjustified indirect discrimination or breach the reasonable adjustments duty; and (iii) whether Redbridge failed to have due regard to the public sector equality duty.

Reasoning and conclusions: The court affirmed the High Court's approach distinguishing systemic failings from individual operational lapses. It held that compliance with section 42 requires reasonable forward planning but does not mandate permanently maintaining a reserve of specially qualified staff for very low-incidence needs; such lead-time issues can arise under either a centralised or decentralised model. The judge's factual findings — including evidence of early engagement with parents and schools, the contractual arrangements with JCES for QTVI support and training, increased funding and use of JCES to bridge gaps — were open to him on the evidence and supported the conclusion that the decentralised model did not inherently cause the disadvantages relied upon. The discrimination and reasonable adjustments claims failed on the facts because no systemic disadvantage was demonstrated. The public sector equality duty claim failed because the statutory arrangements and the authority's evident purpose in procuring JCES services showed due regard to disabled pupils' needs.

Subsidiary findings: The court accepted that arrangements were not perfect and individual complaints might be capable of specific challenge, but those did not establish systemic illegality. The EHC plan required teaching assistants trained in contracted UEB braille but did not, on the evidence, require them to have already achieved the formal Grade 2 qualification before starting work.

Appeal dismissed. The court held that Swift J was entitled to find that Redbridge's decentralised model was not irrational or inherently unlawful, did not inherently disadvantage visually impaired pupils for the purposes of discrimination or reasonable adjustments claims, and did not breach the public sector equality duty. The judge's factual findings about planning, contractual arrangements with JCES, and the availability of QTVI support were open to him on the evidence and determinative of the systemic challenge.

Appeal from the Administrative Court (Swift J) [2019] EWHC 1450 (Admin). The EHC plan for the pupil had been amended following proceedings before the First-tier Tribunal (Special Educational Needs and Disability Chamber).