L (by her litigation friend N) v Devon County Council

Where a local authority reviews an education, health and care plan and proposes amendment, the notification required by regulation 20(10) of the Special Educational Needs and Disability Regulations 2014/1530 must include the substance of the proposed amendments. Regulation 20 must be read with regulation 22. The authority must therefore provide the draft amendments within four weeks of the review meeting. The eight-week period in regulation 22(3) then runs from service of the amendment notice, so the final amended plan should ordinarily be issued within twelve weeks of the review meeting. The statutory scheme is deliberately time-sensitive. Resource pressures cannot displace the timetable or alter the meaning of the Regulations.

Three children with education, health and care plans brought judicial review claims concerning delays by Devon County Council in amending their plans after annual reviews. The individual disputes had been resolved, but the statutory construction issue remained important and was remitted to the Administrative Court by the Court of Appeal on 16 March 2021 after the earlier decision treated it as academic.

The central issue was whether the Regulations required a local authority, within four weeks of an annual review meeting, to notify parents not only of its decision to amend a plan but also of the proposed amendments.

1. The judicial review succeeded. The court held that regulation 20(10) must be read with regulation 22 of the Special Educational Needs and Disability Regulations 2014/1530.
2. The word “notify” in regulation 20(10) requires notification of the substance of the proposed way forward. Where amendment is proposed, that substance includes a draft of the proposed amendments. Notification must therefore occur within four weeks of the review meeting.
3. Regulation 22 supplies the detail of the notification required under regulation 20(10)(b). The local authority must send the existing plan, the notice specifying the proposed amendments and supporting evidence, and allow the prescribed period for representations.
4. Under regulation 22(3), the finalised plan must be sent as soon as practicable and in any event within eight weeks of sending the material required by regulation 22(2)(a). Read together, the provisions ordinarily produce a twelve-week period from the review meeting to the final amended plan.
5. The Regulations do not require a strictly chronological reading of their numbered provisions. Their structure is front-loaded with evidence gathering and consultation, and regulations 20 and 22 must be read together. The Code was consistent with this interpretation but was not determinative.
6. The statutory scheme is time-sensitive and designed to secure prompt provision and an effective right of appeal. Resource constraints cannot justify treating the amendment stage as free from a defined timetable or condition the meaning of the Regulations.

• Court of Appeal: On 16 March 2021, Jackson LJ, Haddon-Cave LJ and Laing LJ allowed the claimants’ appeal against the Administrative Court’s decision of 7 August 2020, which had dismissed the claims as academic, and remitted the statutory construction issue for determination.
• High Court (Administrative Court): The court determined the substantive construction issue and allowed the judicial review.