DA (by his litigation friend and father MA), R (on the application of) v Bristol City Council

A local authority’s duty under section 42(2) of the Children and Families Act 2014 to secure the special educational provision specified in an education and health and care plan is absolute and non-delegable. A local authority cannot rely on a general best-endeavours defence. Although a short period may reasonably be required to arrange provision following amendment of a plan, a continuing failure to secure substantial provision may be arguable as a breach of duty. Permission should be granted where the evidence discloses a realistic issue requiring determination, even if the claim was initially issued prematurely.

DA, a 15-year-old child with severe autism and special educational needs, challenged Bristol City Council’s alleged failure to secure provision specified in his education and health and care plan. The First-tier Tribunal had partly allowed his parents’ appeal and directed amendments to the plan, including 30 hours per week of applied behaviour analysis tutoring.

Permission for judicial review was refused on the papers, principally because the claim appeared redundant or academic. On renewal, the court considered whether the continuing absence of the main provision made it arguable that the statutory duty under section 42(2) of the Children and Families Act 2014 was not being discharged.

1. Permission granted. The renewed application disclosed an arguable claim that Bristol City Council was failing to discharge its duty under section 42(2) of the Children and Families Act 2014.
2. The duty to secure the provision specified in an education and health and care plan is absolute and non-delegable. There is no best-endeavours defence. The court relied on R (on the application of N) v North Tyneside Borough Council [2010] EWCA Civ 135, [2010] ELR 312.
3. The claim had been issued only one day after the amended plan was produced, so it initially sought compliance within a potentially unreasonable period. A local authority may arguably require some reasonable time to arrange provision. That did not dispose of the claim because, three months later, the principal provision had still not been secured.
4. R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348 (Admin) was relevant to the question whether a reasonable implementation period might exist, although the delay in that case had been substantially longer and the point had not been decided.
5. The substantive judicial review was directed to be expedited. If the provision was delivered before the hearing, the hearing might become unnecessary; otherwise the court would consider whether substantive relief should be granted.

• First-tier Tribunal (Special Educational Needs and Disability): On 15 June 2022, partly allowed the parents’ appeal and ordered a revised education and health and care plan. A later decision on 6 September 2022 revised the occupational therapy provision.
• High Court (Administrative Court): Permission was refused on the papers on 15 August 2022. On renewal, the present court granted permission and ordered an expedited substantive hearing.