ZK v London Borough of Redbridge

Once an education and health and care plan is final and specifies provision, the duty under the Children and Families Act 2014 s 42(2) is absolute. It requires the local authority to provide and maintain that provision. Resources, reasonable endeavours and a preferred organisational model do not qualify the duty.

In a systemic challenge, the court must distinguish an inherent defect in the arrangements from individual operational failures. A decentralised model is not unlawful merely because recruitment, training and absence create practical risks, provided adequate forward planning and responsive support exist. Discrimination and public sector equality duty challenges likewise require evidence of inherent disadvantage and substantive non-compliance.

ZK, a blind and partially deaf pupil with significant special educational needs, challenged Redbridge’s decentralised arrangements for providing specialist teaching assistants and qualified teachers of visually impaired pupils in mainstream schools. She contended that a centralised model was required to secure provision, avoid unlawful disadvantage and comply with the public sector equality duty.

Swift J dismissed the judicial review claim in [2019] EWHC 1450 (Admin). ZK appealed on grounds of irrationality and illegality, disability discrimination and breach of s 149 of the Equality Act 2010. The central issue was whether Redbridge’s general arrangements were inherently incapable of securing the provision specified in education and health and care plans or inherently discriminatory.

Appeal dismissed. Simler LJ gave the leading judgment, with Rose LJ and Baker LJ agreeing.

1. The duty under s 42(2) of the Children and Families Act 2014 is mandatory once an education and health and care plan is final and specifies provision. The duty is not subject to resources or a reasonable-endeavours qualification. “Secure” means provide and maintain the specified provision. The court endorsed the established principle discussed in R (Simone and others) v Chancellor of the Exchequer and another [2019] EWHC 2609 (Admin), R (N) v North Tyneside BC [2010] EWCA Civ 135 and R v East Sussex County Council ex p. Tandy [1998] AC 714.
2. For a systemic challenge, the relevant question is whether the arrangements inherently risk unlawful failure. The court must distinguish a defect in the system from individual operational failures. The approach in R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827 and R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) was applicable to substantive as well as procedural policies.
3. Section 42 did not require Redbridge to employ teaching assistants centrally or retain a reserve pool covering every possible low-incidence need. Reasonable forward planning was required, particularly for school transitions, but unforeseen circumstances did not excuse non-compliance: specified provision still had to be provided promptly and maintained. On the evidence, Redbridge’s arrangements and JCES support did not entail an inherent likelihood of breach and were neither irrational nor unlawful. The court did not need to resolve differing formulations in Bayer Plc v NHS Darlington CCG [2018] EWHC 2465 (Admin) and later authorities, since the outcome would be unchanged.
4. The discrimination claims failed because the arrangements were not shown to be an inherent source of disadvantage for visually impaired pupils, nor to place them at a substantial disadvantage for reasonable-adjustment purposes. The asserted restriction on school choice was not inherent in the model. Article 24 of the UN Convention on the Rights of Persons with Disabilities took the case no further.
5. For the s 149 public sector equality duty, compliance is a matter of substance rather than form. Following the reasoning in R (McDonald) v RBKC [2011] UKSC 33, where the statutory function is expressly directed to meeting the needs of disabled pupils, express reference to the equality duty may be unnecessary. Redbridge’s arrangements were made for the purpose of securing the required provision and that was sufficient in this case.

All grounds failed and the appeal was dismissed.

• Court of Appeal (Civil Division): Dismissed ZK’s appeal on 1 December 2020.
• High Court (Administrative Court): Swift J dismissed the judicial review claim in [2019] EWHC 1450 (Admin).